Judgment :- Being aggrieved by the award passed by the Motor Accident Claims Tribunal, Gobichettipalayam in MCOP No.29/2001 awarding compensation of Rs.1,92,059/-, Insurance Company has preferred this appeal on the ground that the owner of the motor cycle has violated terms and conditions of the policy and disputing its liability. .2. Brief facts which are necessary for disposal of this appeal are as follows:-On 210. 2000 at about 7.15 a.m., first respondent claimant was riding his bicycle in Modachur from North to South keeping left side of the road. When he came near Modachur Sandai Bus Stop, Enfield Bullet Motorcycle bearing registration no.TNG 7510, which came from behind, driven in a rash and negligent, manner hit the claimant, due to which, the claimant had fallen down and sustained injuries on left parital region, left eye lid. There was also bleeding through oral cavity. At the time of accident, claimant was aged 60 years. Alleging that the accident was due to negligent driving of motorcyclist, claimant has filed Petition under Section 166 M.V.Act claiming compensation of Rs.2,98,000/-. 3. Denying the manner of accident, the Insurance Company has filed counter affidavit stating that the accident was due to carelessness of claimant/ injured when he was riding his bicycle. The Insurance Company had also taken the plea that the driver of motorcycle was not having a valid driving licence at the time of accident and disputed its liability on the ground of violation of policy conditions. The Insurance Company also disputed the age, income and permanent disability allegedly suffered by the claimant. 4. Before the Tribunal, P.W.s 1 to 3 were examined. Exs.P-1 to P-10 were marked. Witness from Regional Transport Office and Senior Assistant of Insurance Company were examined as RWs 1 and 2 respectively. In the criminal Court, the driver of motorcycle had admitted his guilt and paid fine. Charge Sheet in the criminal case and Judgment of the criminal case were marked as Exs.R-1 and R-2. Upon consideration of oral and documentary evidence, Tribunal has held that the accident was due to rash and negligent driving of the driver of motorcycle and held that the owner and insurer of motorcycle are jointly and severally liable to pay the compensation. Fixing the income of the claimant at Rs.6,750/-p.m., and assessing his disability at 25%, the Tribunal has awarded Rs.1,62,000/- for permanent disability and loss of earning. Fixing the income of the claimant at Rs.6,750/-p.m., and assessing his disability at 25%, the Tribunal has awarded Rs.1,62,000/- for permanent disability and loss of earning. Total compensation of Rs.1,92,059/- was awarded. 5. Challenging the order of Tribunal, the learned Counsel for the Appellant has submitted that at the time of accident, driver of motorcycle did not have valid driving licence. It was further argued that to discharge the burden cast upon the Insurance Company, it has examined R.W.s 1 and 2 and the Tribunal ought to have accepted the defence plea and exonerated the Insurance Company from liability. Insofar as quantum the quantum is concerned, the learned Counsel for the Appellant submitted that in the absence of acceptable evidence to prove permanent disability, the Tribunal has erroneously awarded higher compensation of Rs.1,92,059/-and the same is unsustainable. .6. The learned Counsel for the third respondent, owner of the vehicle has submitted that the Insurance Company did not discharge the burden cast upon it, to show that driver had no valid driving licence and therefore, the Tribunal has rightly fastened the liability upon the Insurance Company. In respect of the quantum, the learned Counsel for the owner of the vehicle has submitted that the compensation awarded by the Tribunal is without basis and is not supported by materials. 7. The learned Counsel for the first Respondent claimant has submitted that the Insurance Company had not discharged the burden cast upon it to prove that driver had no valid driving licence. It was further submitted that in any event, as against third party claim, the Insurance Company is to be directed to pay the compensation and thereafter, to recover the same from the insured. 8. In the light of rival contentions, the following points arise for consideration :- "(i)Whether the Insurance Company had discharge the burden cast upon it, showing that the second respondent had no valid driving licence ? (ii)Whether there was violation of policy conditions and whether the Insurance Company is to be exonerated ? (iii)Whether on the basis of Swaran Singhs case and Kusum Rais case, Insurance Company could be asked to pay and recover?" 9. Admittedly, the second Respondent was driving the motorcycle TNG 7510 owned by the third respondent. Case of appellant Insurance Company is that the second respondent did not have valid driving licence to drive the motorcycle. 10. (iii)Whether on the basis of Swaran Singhs case and Kusum Rais case, Insurance Company could be asked to pay and recover?" 9. Admittedly, the second Respondent was driving the motorcycle TNG 7510 owned by the third respondent. Case of appellant Insurance Company is that the second respondent did not have valid driving licence to drive the motorcycle. 10. In this case, owner of the vehicle has contested the matter. Despite the plea taken by the Insurance Company that driver did not have valid driving licence at the time of accident that the third respondent owner had not chosen to produce the valid driving licence of the second respondent. To discharge its burden cast upon Insurance Company, it has examined RW-1 from RTO, Gobichettipalayam. In his evidence, RW-1 has stated that for a valid driving licence, a number would be assigned and without the number, there cannot be search for driving licence particulars. 11. RW-1 - Senior Assistant of Insurance Company has stated that the second respondent had no valid driving licence. For rash and negligent and for driving licence without a valid driving licence, criminal case was registered against the second Respondent in Cr.No.667/2000. Charge sheet was filed under Section 279, 338 IPC and Sec.3 r/w 181 of M.V.Act for rash and negligent and without proper driving licence. As is seen from Ex.B-2, the second respondent has admitted the offence and paid the fine. The fact that second respondent pleaded guilty for the offence under Section 3 r/w Sec.181 M.V.Act would amply show that he had no valid driving licence at the time of accident. From the evidence of RWs 1 and 2 and Exs.B-1 and B-2, it is amply made clear that the Insurance Company had established that the second Respondent had no valid driving licence at the time of accident. Since there was violation of policy conditions, Insurance Company cannot be held liable to pay the compensation. 12. The question as regards liability of the owner vis-a-vis the driver being not possessed of the valid driving licence was elaborately considered by the Supreme Court Swaran Singhs Case (2004 ACJ 1 SC) and the Supreme Court has clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. 12. The question as regards liability of the owner vis-a-vis the driver being not possessed of the valid driving licence was elaborately considered by the Supreme Court Swaran Singhs Case (2004 ACJ 1 SC) and the Supreme Court has clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. It was obligatory on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the licence. The question as regards the liability of the owner vis-a-vis the driver being not possessed of the valid licence was elaborately considered by the Supreme Court in 2004 ACJ 1 (National Insurance Co.Ltd. v. Swaran Singh and others), wherein the Supreme Court has held as follows : "75. ......... Furthermore, it is one thing to say that the insurer will be entitled to avoid its liability owing to breach of terms of a contract of insurance but it is another thing to say that the vehicle is not insured at all. If the submission of learned counsel for the petitioner is accepted, the same would render the proviso to sub-section (4) as well as sub-section (5) of section 149 of the Act otiose, nor any effective meaning can be attributed to the liability clause of the insurance company contained in sub-section (1). The decision in Kamlas case, 2001 ACJ 843 (SC), has to be read in the aforementioned context. Summarizing the findings to the various issues in Paragraph 102 the Supreme Court inter alia has held 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)(ii) of the said Act. (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)(ii) of the said Act. (iii)The breach of policy conditions, e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have 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 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 duly licenced driver or one who was not disqualified to drive at the relevant time. (iv)The 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)......... (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 of 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)..... (viii).... (ix)...... 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)..... (viii).... (ix)...... (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 the 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. (underlining added) 13. In 2006 ACJ 1336 (SC) (National Insurance Company Limited v. Kusum Rai) the driver had a licence to drive the Light Motor Vehicle, but at the time of accident, he was driving a jeep, which was being plied as a taxi – commercial vehicle. Holding that the driver did not possess a valid licence to drive a commercial vehicle and therefore, there was breach of conditions of contract of insurance by the insured and the insurance company is exempted from liability and holding that the insurance company may recover the amount paid from the owner by initiating proceedings before the executing Court , the Supreme Court has held as under: "14. In a case of this nature, therefore, the owner of a vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or not. 15. However, in this case the owner has not appeared. The victim was aged only 12 years. The claimants are from a poor background. They must have suffered great mental agony. 15. However, in this case the owner has not appeared. The victim was aged only 12 years. The claimants are from a poor background. They must have suffered great mental agony. Therefore, we are of the opinion that it may not be appropriate to push them into another round of litigation particularly when it may be difficult for them to secure the presence of the owner of the vehicle. 16. In Nanjappan, 2004 ACJ 721 (SC), this Court opined: "(8)Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaurs case, 2004 ACJ 428(SC), that the insurer shall pay the quantum of compensation fixed by the Claims Tribunal, about which there was no dispute raised, to respondents-claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the concerned Regional Transport Authority. The executing court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs." 14. In 2007 ACJ 1067 (SC) (Iswara Chandra and others v. Oriental Insurance Co. The appeal is disposed of in the aforesaid terms, with no order as to costs." 14. In 2007 ACJ 1067 (SC) (Iswara Chandra and others v. Oriental Insurance Co. Ltd. and others) the Supreme Court has reaffirmed the position in Swaran Singhs Case and Kusum Rais Case and has directed the Insurance Company to pay the compensation amount to the Claimants with option to recover from the insurer by initiating proceedings before the Executing Court. 15. As discussed earlier, at the time of accident, the second respondent did not have valid driving licence to drive the motorcycle. As the second respondent did not possess a valid driving licence, there was breach of conditions of contract of insurance and the Insurance Company is exempted from its liability. As held by the Supreme Court in Swaran Singhs case and Kusum Rais Case and other cases, the Insurance Company shall pay compensation to the third parties and recover compensation from the owner by initiating proceedings before the executing Court. 16. Coming to the quantum, the Tribunal has awarded Rs.1,92,059/- under the following heads :- Amount in Rs. Loss of earning 1,62,000 Medical expenses 20,059 Pain and suffering 5,000 Nutritious Food 5,000 1,92,059 17. Claimant aged 60 years sustained injury on left parital region and there was also bleeding through nose. He has also sustained contusion in both the legs. The claimant had taken treatment at Savitha Hospital, Erode. In Ex.A-4 – Wound Certificate, Doctor has opined that the injuries on the left parital region, nose and oral cavity, left eye and mount were grievous injuries in nature. The claimant was admitted in hospital on 210. 2000 and discharged on 011. 2000. He was discharged with advice to take medicine as indicated in Ex.A-5 – Discharge Summary. The claimant has produced Ex.A-6 to A-9 showing that he has spent Rs.20,059/- towards medical expenses and the same was rightly allowed by the Tribunal. 18. PW-2 – Dr.Sengottiyan who examined the claimant has assessed the disability at 25%. In his evidence, PW-2 has stated that the claimant had giddiness and frequent headaches and he is not able to carry weight. The deceased was aged 60 years. The age factor could have also contributed to the disabilities stated by PW-2. 19. At the time of accident, the claimant owned bullock cart and he used to allow it for hire and was earning Rs.250/- per day. The deceased was aged 60 years. The age factor could have also contributed to the disabilities stated by PW-2. 19. At the time of accident, the claimant owned bullock cart and he used to allow it for hire and was earning Rs.250/- per day. PW-1 has stated that he would approximately spend Rs.100/- for the maintenance of the bulls and after meeting the expenses for maintaining the bulls and bullock cart, the claimant might be earning only around Rs.100/- or Rs.150/- per day and Rs.4,500/- per month. The Tribunal has fixed a very higher income of Rs.6,750/- per month on the basis that the claimant would have earned Rs.250 per day. That apart, at the time of accident, claimant was aged 60 years. The Tribunal has adopted multiplier 8 which is also on the higher side. Having regard to the nature of injuries and age of first respondent/claimant, multiplier 5 would be appropriate. For permanent disability and loss of income, the claimant could be awarded compensation of Rs.67,500 [Rs.4,500 x 12 x 5 x 25/100]. The Tribunal has awarded Rs.5,000/- for pain and suffering. Claimant was in hospital for nearly 4 to 5 days. In such view of the matter, awarding Rs.5,000/- towards pain and suffering is proper and need not be interfered with. 20. The amount of compensation of Rs.1,92,059/- is reduced to Rs.97,559 under the following heads :- Amount in Rs. Loss of earning 67,500 Medical expenses 20,059 Pain and suffering 5,000 Nutritious Food 5,000 97,559 21. In the result, "The order of Tribunal in MACTOP No.No.29/2001 is modified and this appeal is partly allowed. "Compensation amount of Rs.1,92,059/- is reduced to Rs.97,559/- with interest at 9%. "Appellant/Insurance Company shall pay the amount to the first respondent/claimant and recover the same from the third respondent/ insured. "The entire compensation amount is said to have been deposited to the credit of MCOP No.29/2001 from out of which first respondent/ claimant is said to have withdrawn half of the amount. "Appellant shall be entitled to balance amount if any payable. Excess amount lying to the credit of MCOP No.29/2001 shall be refunded to the appellant Insurance Company on necessary application.