JUDGMENT Vinod K. Sharma, J. (Oral) - The present appeal has been filed by Master Pawan Kumar minor, through his father, to challenge the award of the Motor Accident Claims Tribunal, Karnal, in MACT Case No. 1 of 1992. 2. The facts of the case are that Pawan Kumar, appellant was going on his bi- cycle from village Uchana towards W.J.C. Canal on 10.11.1991, when a tanker bearing registration No. UHP 373 came from Assand side at a fast speed which was being driven by Mohd. Kadir, respondent No. 1 herein in a rash and negligent manner. The tanker struck Pawan Kumars bi-cycle from behind, as a result of which, he fell down and become unconscious. On account of the accident the appellant suffered head injury and on that account he claimed compensation to the tune of Rs. 10 lacs. The claim was contested by respondent No. 3 (Insurance Company), whereas owner and driver were proceeded ex-parte. The factum of rash and negligent driving was denied by the Insurance company and an objection was also taken that the person, who was driving the tanker, was not holding a valid driving licence and, therefore, the Insurance Company could not be held liable to make the payment of compensation. It was also stated that the vehicle was not having the route permit. On the pleadings of the parties, following issues were framed : "1. Whether the accident dated 10.11.1991 near village Uchana on G.T. Road resulting into the injuries to the claimant was caused due to rash and negligent driving of tanker No. UHP 373 by its driver-respondent No. 1, if so, its effect ? OPP 2. Whether the claimant is entitled to any compensation on account of his injuries, if so, how much and from whom ? OPP 3. Whether the tanker in question was being driven by unauthorised person, if so, its effect ? OPR 4. Relief". 3. On the basis of the evidence led by the parties, the learned Motor Accident Claims Tribunal decided issue No. 1 in favour of the claimants and it was held that the accident was caused due to rash and negligent driving of tanker No. UHP 373 which was being driven by respondent No. 1. On issue No. 2, the Tribunal was pleased to hold that the claimants was entitled to a sum of Rs. On issue No. 2, the Tribunal was pleased to hold that the claimants was entitled to a sum of Rs. 40,000/- as global (total ?) compensation on account of expenses incurred for his treatment as well as for pain and suffering, amenities of life, meditation and transportation, special diet and attendant etc. The learned Tribunal on the basis of the evidence brought on record came to the conclusion that the driver was only entitled to drive the light motor vehicle and since the tanker/truck did not come within the ambit of a light motor vehicle, it could not be held that the driver was entitled to driver the tanker. A findings was also recorded to hold that the licence Exhibit R-1 was fake and on account of this, the learned Motor Accident Claims Tribunal absolved the insurance company of its liability to pay the compensation. 4. Mr. Ashit Malik, learned counsel for the appellant in the present appeal has challenged the findings of the learned Tribunal on issue Nos. 2 and 3. The contention of learned counsel for the appellant to challenge issue No. 2 is that from the evidence brought on record by way of statement of PW-1, Dr. J.C. Bhathla, the factum of incapacity of the appellant is duly proved inasmuch as in his statement, he has stated that the memory of the appellant was very very poor and he was not in a position to study and would also not be able to lead independent life. On his re-examination, this witness further stated that the claimant was not capable to recognise simple currency notes or simple things. In totality, Dr. Bhathla has opined that the appellant was incapable to lead an independent life and he would constantly need an attendant to look after him. PW-3, Rulha Ram, father of the claimant while submitting the expenses incurred by him on his treatment, categorically stated that since his son had lost memory due to mental incapacity, he has become totally inefficient. It was also brought on record that he had left studies. There is no evidence contrary to the evidence brought on record, rather as already noticed above, respondent Nos. 1 and 2 did not choose to contest the claim petition. It was also brought on record that he had left studies. There is no evidence contrary to the evidence brought on record, rather as already noticed above, respondent Nos. 1 and 2 did not choose to contest the claim petition. However, it is not in dispute that there is no sufficient evidence brought on record to show as to what amount of compensation, the appellant was entitled to, due to his incapacity. In such a situation, I have to adopt the principle of just compensation. In the present circumstances, I think that it would be appropriate to grant a lumpsum amount of Rs. 3,00,000/- as compensation to the claimant on account of the injuries suffered by him in the accident. Accordingly, the findings of the learned Motor Accident Claims Tribunal are modified to this extent and compensation is enhanced from Rs. 40,000/- to Rs. 3 lacs. 5. Learned counsel for the appellant has further challenged the findings of the learned Motor Accident Claims Tribunal on issue No. 3 and submitted that in view of the decisions of Honble the Supreme Court in New India Assurance Company Ltd. Shimla v. Kamla, (2001-1) 127 PLR 830, and National Insurance Co. Ltd. v. Swaran Singh and others, (2004)3 SCC 292, the liability to pay compensation was to be fastened on the insurance company with a liberty to it recover the same from the owner of the offending vehicle. 6. Learned counsel appearing for respondent No. 3 vehemently argued that the reliance placed by the learned counsel for the appellant on the judgments of the Honble Supreme Court is totally misconceived. It is submitted by the learned counsel that in the present case, the licence Exhibit R-1 besides being fake, was also meant for driving a light motor vehicle and, therefore, it has to be held that the owner was totally negligent. Thus no liability can be fastened in the insurance company in this case. I do not agree with the view expressed by the learned counsel for the respondent No. 3. A reading of the judgment of the Apex Court in Swaran Singhs case (supra), shows that the onus to prove that the owner was totally negligent and had committed breach of the terms of the insurance policy was on the insurance company. However, in the case in hand no such evidence was brought on record to prove this fact. 7. A reading of the judgment of the Apex Court in Swaran Singhs case (supra), shows that the onus to prove that the owner was totally negligent and had committed breach of the terms of the insurance policy was on the insurance company. However, in the case in hand no such evidence was brought on record to prove this fact. 7. I have considered the respective contentions of the learned counsel for the parties and after going through the judgments of the Honble Supreme Court referred to above, I find that the Apex Court was pleased to lay down the following law in Swaran Singhs case (supra) : "110. The summary of our findings to the various as raised in these petitions are as follows :- (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a) of the said Act. (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149 has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licenced driver or one, who was not disqualified to drive at the relevant time. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licenced driver or one, who was not disqualified to drive at the relevant time. (iv) Insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings, but must also establish breach on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (v) The Court cannot lay down any criteria as to how said burden would be discharged inasmuch as the same would depend upon the facts and circumstances of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not, will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learners licence, the insurance companies would be liable to satisfy the decree. (ix) The Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and the insured. The decision rendered on the claims and disputes inter se between the insure and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal. (xi) The provisions in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular Court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims". In the light of the law laid down by the Apex Court and in view of the facts and circumstances of the instant case and on a consideration of the matter, I am of the opinion that the liability has to be fastened on the insurance company. However, the insurance company would be at liberty to recover the amount of compensation from the owner of the offending vehicle. Therefore, the findings of the learned Motor Accident Claims Tribunal on issue No. 3 are reversed. Resultantly, this appeal is allowed and the compensation is enhanced to Rs. 3 lacs and the claimant shall be entitled to interest @ 7.5% P.A. from the date of filing of the claim petition till actual payment. All the respondents will be jointly and severally liable to pay the compensation to the claimants. Appeal allowed.