Hon'ble RATHOD, J.—Heard learned advocate Mr. MJ Shelat on behalf of appellant insurance company, learned advocate Ms. Amrita Ajmera appearing for respondent claimant and learned advocate Mr. Ashish Dagli appearing for respondent no. 2 and 3. 2. The appellant insurance company has challenged award passed by Motor Accident Claims Tribunal, Morbi in claim case no. 38/2005 exh 33 decided on 16/4/2009. The claims Tribunal has awarded Rs. 4,03,750/- with 7.5% interest in favour of claimant. 3. Learned advocate Mr. Shelat vehemently raised contention before this Court that driver of luxury bus was not holding valid and effective license to drive luxury bus on the date of accident 11/3/2005. 4. He submitted that this contention was raised in written statement by appellant insurance company before claims Tribunal, Morbi in para 15 which is quoted as under: "15. Moreover deceased being the driver of motor cycle and opponent No. 1 were not possessing the required valid & effective driving License at the material time of accident, therefore, this opponent is not liable to indemnify the opponent No. 3." 5. He also submitted that license produced on record is for the period from 13/12/2004 to 12/12/2024. He submitted that this license was valid for Non Transport Vehicle but it can not be used while driving 'Transport Vehicle'. He submitted that in license also driver was not authorized to drive 'Transport Vehicle' but he was only authorized to drive 'Non Transport Vehicle'. 6. He relied upon certificate produced before claims Tribunal where it is specifically made clear that driver was authorized to drive 'Non Transport Vehicle' not 'Transport Vehicle'. He submitted that it require separate endorsement for driving 'Transport vehicle' and there was no endorsement made in license by RTO authority to drive 'Transport Vehicle'. 7. According to his submission, luxury bus is 'Transport Vehicle', for that, separate endorsement is necessary and in absence of such endorsement, it can not consider that driver was holding valid and effective license to drive luxury bus. 7. According to his submission, luxury bus is 'Transport Vehicle', for that, separate endorsement is necessary and in absence of such endorsement, it can not consider that driver was holding valid and effective license to drive luxury bus. In support of his submission, he relied upon definition given in section 2(22) Maxicab, 2(7) Contract carriage, section 2(35) Public Service Vehicle, section 2(47) transport vehicle, 2(40) Stage carriage, which are quoted as under: "Section 2(22): 'maxicab' means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward; Section 2(7): 'contract carriage' means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorized by him in this behalf on a fixed or an agreed rate or sum- (a) on a time basis, whether or not with reference to any route or distance; or (b) from one point another; and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey and includes- (i) a maxicab; and (ii) a motorcab notwithstanding the separate fares are charged for its passengers; Section 2(35): 'Public service vehicle' means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes maxicab, a motorcab, contract carriage, and stage carriage; Section 2(47): 'transport vehicle' means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle; Section 2(40): 'Stage carriage' means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey;" 8. The aforesaid definition has been relied by learned advocate Mr. Shelat to point out that luxury bus covered by 'Transport vehicle' means 'Public Service Vehicle Goods Carriage' and 'Educational institution bus' or 'Private Service vehicle'. He also submitted that policy which has been issued by appellant insurance company for passengers carrying in passengers vehicle luxury bus. The aforesaid definition has been relied by learned advocate Mr. Shelat to point out that luxury bus covered by 'Transport vehicle' means 'Public Service Vehicle Goods Carriage' and 'Educational institution bus' or 'Private Service vehicle'. He also submitted that policy which has been issued by appellant insurance company for passengers carrying in passengers vehicle luxury bus. He also emphasized that facts are not much in dispute because driver was not holding valid and effective license to drive transport vehicle. 9. He submitted that clarification which was not made in respect to facts before claims Tribunal by appellant insurance company can be made by appellant insurance company being clarification in law which can be taken into account by this Court in appeal being a continuous proceeding. 10. He also submitted that because of this aspect has not been properly dealt with by claims Tribunal though it was raised by appellant, therefore, matter may be remanded back to Tribunal and whatever transpire between advocate and Tribunal can be considered by claims Tribunal. 11. He also emphasized vehemently that it is a case of other side - owner of vehicle that driver was possessing valid and effective license to drive 'Transport vehicle'. This fact has not been reflected in award passed by claims Tribunal. He also pointed out one another ground 'E' where according to him, claims Tribunal has committed gross error once decided Rs. 2000/- income and while calculating compensation, it has been considered Rs. 2500/- and on that basis entire compensation has been worked out then total amount of Rs. 76,500/- is required to be reduced if monthly income of deceased considered to be Rs. 2000/- instead of Rs. 2500/-. Therefore, ground 'E' mentioned in appeal memo is quoted as under: "'E' The ld. Tribunal has erred in considering income of deceased @ Rs. 2500/- p.m. while finally calculating compensation when it has already assessed monthly income of deceased @ Rs. 2000/- in para 13 - Page 6. Assuming without admitting that income of deceased may be considered @ Rs. 24,000/- per year instead of Rs. 30,000/- per year as considered by tribunal than difference of amount of compensation comes to Rs. 76,500/-. The ld. Tribunal ought not to have considered prospective income of deceased in absence of any evidence to that effect as well as his actual income." 12. 24,000/- per year instead of Rs. 30,000/- per year as considered by tribunal than difference of amount of compensation comes to Rs. 76,500/-. The ld. Tribunal ought not to have considered prospective income of deceased in absence of any evidence to that effect as well as his actual income." 12. He relied upon two decision of Apex Court in case of New India Assurance Co. Ltd vs. Roshanben Rahemansha Fakir & Anr reported in 2008 (8) SCC 253 and in case of National Insurance Co. Ltd vs. Kusum Rai and Ors reported in 2006 (4) SCC 250 . 13. He submitted that looking to RTO certificate and considering insurance policy issued by appellant insurance company, luxury bus is 'Transport Vehicle' being a 'Passengers Carrying Commercial vehicle policy', 'B' package has been issued. The aforesaid two decision which has been relied by learned advocate Mr. Shelat where accident caused by 'Goods Transport Vehicle' Autorickshaw delivery van, driver of vehicle was not possessing valid license to drive Transport Vehicle, wherein it has been held that insurance company is not liable. The relevant discussion made by Apex Court in case of Roshanben in para 14 and 15 are quoted as under as relied by learned advocate Mr. Shelat: "14. In National Insurance Co. Ltd vs. Swaran Singh this Court opined: (SCC pp. 336-37, para 89) "89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are "goods carriage", "heavy goods vehicle", "heavy passenger motor vehicle", "invalid carriage", "light motor vehicle", "maxi-cab", "medium goods vehicle", "medium passenger motor vehicle", "motor-cab", "motorcycle", "omnibus", "private service vehicle", "semi-trailer", "tourist vehicle", "tractor", "trailer" and "transport vehicle". They are "goods carriage", "heavy goods vehicle", "heavy passenger motor vehicle", "invalid carriage", "light motor vehicle", "maxi-cab", "medium goods vehicle", "medium passenger motor vehicle", "motor-cab", "motorcycle", "omnibus", "private service vehicle", "semi-trailer", "tourist vehicle", "tractor", "trailer" and "transport vehicle". In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for "motorcycle without gear", (sic may be driving a vehicle) for which he has no licence. Cases may also arise where a holder of driving licence for "light motor vehicle" is found to be driving a "maxi-cab", "motor-cab" or "omnibus" for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence." 15. In National Insurance Company Ltd. vs. Annappa Irappa Nesaria and Ors. ( (2008) 1 SCALE 642 ), it was noticed that the provisions of the Act have undergone a change. The definition of `light motor vehicle' would not include a light transport vehicle. In that case, keeping in view the date on which the accident took place, it was held : "20. From what has been noticed hereinbefore, it is evident that transport vehicle has now been substituted for `medium goods vehicle' and `heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, light passenger carriage vehicle and light goods carriage vehicle. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well." 14. Similarly, in case of Kusum Rai reported in 2006 (4) SCC 250 , which has been considered by Apex Court in case of Roshanben as referred above, relevant discussion made in para 11 to 14 are quoted as under as relied by learned advocate Mr. Shelat: 11. Similarly, in case of Kusum Rai reported in 2006 (4) SCC 250 , which has been considered by Apex Court in case of Roshanben as referred above, relevant discussion made in para 11 to 14 are quoted as under as relied by learned advocate Mr. Shelat: 11. It has not been disputed before us the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a Light Motor Vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The Appellant, therefore, could raise the said defence. 12. We have noticed hereinbefore that the Tribunal has not gone into the said question. It proceeded on the basis that the case was covered by Kamla (supra). The correctness of the said decision came up for consideration before this Court in National Insurance Co. Ltd. vs. Swaran Singh and Others ( (2004) 3 SCC 297 ) wherein this Court clearly held: "The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, admittedly, did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not have any hand in it at all e.g. a case where an accident takes place owing to a mechanical fault or vis major. (See Jitendra Kumar)" 13. In a given case, the driver of the vehicle may not have any hand in it at all e.g. a case where an accident takes place owing to a mechanical fault or vis major. (See Jitendra Kumar)" 13. In Swaran Singh (supra), to which one of us was a party, this Court noticed an earlier decision of this Court, namely, Malla Prakasarao vs. Malla Janaki and Others ( (2004) 3 SCC 343 ) wherein one of the members of the Bench, V.N. Khare, J. (as the learned Chief Justice then was) was a member. In that case, it was held: "1. It is not disputed that the driving licence of the driver of the vehicle had expired on 20.11.1982 and the driver did not apply for renewal within 30 days of the expiry of the said licence, as required under Section 11 of the Motor Vehicles Act, 1939. It is also not disputed that the driver of the vehicle did not have driving licence when the accident took place. According to the terms of the contract, the Insurance Company has no liability to pay any compensation where an accident takes place by a vehicle, driven by a driver without a driving licence. In that view of the matter, we do not find any merit in the appeal." 14. This Court in Swaran Singh (supra) clearly laid down that the liability of the insurance company vis-a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appro-priate licence to drive the vehicle. The question as regards the liability of the owner vis-a-vis the driver being not possessed of a valid licence was considered in Swaran Singh (supra) stating: "89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are "goods carriage", "heavy goods vehicle", "heavy passenger motor vehicle", "invalid carriage", "light motor vehicle", "maxi-cab", "medium goods vehicle", "medium passenger motor vehicle", "motor-cab", "motorcycle", "omnibus", "private service vehicle", "semi-trailer", "tourist vehicle", "tractor", "trailer" and "transport vehicle". In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for "motorcycle without gear", (sic may be driving a vehicle) for which he has no licence. Cases may also arise where a holder of driving licence for "light motor vehicle" is found to be driving a "maxi-ab", "motor-cab" or "omnibus" for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence." 15. Except that, learned advocate Mr. Shelat has not relied upon any other decision. 16. Learned advocate Mr. Except that, learned advocate Mr. Shelat has not relied upon any other decision. 16. Learned advocate Mr. Dagli appearing on behalf of driver and owner of vehicle has submitted that section 2 (21), where definition of 'Light Motor Vehicle' given that if weight is below 7500 kg then it can be considered as public transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed (7500 Kilogram). Therefore, learned advocate Mr. Dagli submitted that according to insurance policy issued by appellant insurance company, gross weight of vehicle 7450 below 7500. This being a Light Motor Vehicle, included 'Transport Vehicle' for which, driver was possessing valid and effective license. The definition of Light Motor Vehicle given in 2 (21) is quoted as under: "Light Motor Vehicle_ means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed (7500) Kilograms;" 17. He also submitted that in license for driving transport vehicle merely endorsement is required which endorsement was not there due to that it can not consider to be invalid license for driving transport vehicle. He submitted that accident is not occurred because of not possessing valid and effective license by driver, it was occurred due to some other reason which has been reflected from award. 18. He relied upon two decision of Apex Court in case of New India Assurance Co. Ltd vs. Manjit Kaur and Ors reported in 2004(3) SCC 348 where case of Swaran Singh has been considered by Apex Court. 19. He also relied upon decision of Apex Court in case of National Insurance Co. Ltd vs. Swaran Singh and Ors reported in 2004(3) SCC 297 . The relevant discussion made in para 47, 49, 81, 82, 83, and 89 are quoted as under as relied by learned advocate Mr. Dagli: 47. If a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. Dagli: 47. If a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. As for example when a person is granted a licence for driving a light motor vehicle he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately. 49. Such a breach on the part of the insurer must be esta-blished by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach. 81. The submissions made on behalf of the petitioner may now be noticed. According to the learned counsel, sub-section (4) of Section 149 deals with the situation where the insurer in the policy purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of sub-section (2) of Section 149 and in that view of the matter no liability is covered for driving of a vehicle without licence or fake licence. The submission ignores the plain and unequivocal expression used in sub-section (2) of Section 149 as well as the proviso appended thereto. With a view to construe a statute the scheme of the Act has to be taken into consideration. For the said purpose the entire Act has to be read as a whole and then chapter by chapter, section by section and word by word. (See Reserve Bank of India etc. vs. Peerless General Finance and Investment Co. Ltd. and others ( (1987) 1 SCC 424 Para 33). 82. Proviso appended to sub-section (4) of Section 149 is referable only to sub-section (2) of Section 149 of the Act. It is an independent provision and must be read in the context of Section 96(4) of the Motor Vehicles Act, 1939. 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. 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 the 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 Kamla's case (supra) has to be read in the aforementioned context. 83. Sub-section (5) of Section 149 which imposes a liability on the insurer must also be given its full effect. The insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of the assured. If this interpretation is not given to the beneficent provisions of the Act having regard to its purport and object, we fail to see a situation where beneficent provisions can be given effect to. Sub-section (7) of Section 149 of the Act, to which pointed attention of the Court has been drawn by the learned counsel for the petitioner, which is in negative language may now be noticed. The said provision must be read with sub-section (1) thereof. The right to avoid liability in terms of sub- section (2) of Section 149 is restricted as has been discussed hereinbefore. It is one thing to say that the insurance companies are entitled to raise a defence but it is another thing to say that despite the fact that its defence has been accepted having regard to the facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading. WHEN ADMITTEDLY NO LICENCE WAS OBTAINED BY A DRIVER: 89.Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. These two matters stand apart and require contextual reading. WHEN ADMITTEDLY NO LICENCE WAS OBTAINED BY A DRIVER: 89.Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are (a) Motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are `goods carriage', `heavy-goods vehicle',`heavy passenger motor-vehicle', `invalid carriage', `light motor-vehicle', `maxi-cab',`medium goods vehicle', `medium passenger motor-vehicle', `motor-cab', `motorcycle', `omnibus', `private service vehicle', `semi-trailer', `tourist vehicle', `tractor', `trailer', and `transport vehicle'. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal. A person possessing a driving licence for `motorcycle without gear', for which he has no licence. Cases may also arise where a holder of driving licence for `light motor vehicle' is found to be driving a `maxi-cab', `motor-cab' or `omnibus' for which he has no licence. In each case on evidence led before the tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. 20. Learned advocate Ms. Ajmera appearing on behalf of respondent claimant submitted that error which has been pointed by learned advocate Mr. 20. Learned advocate Ms. Ajmera appearing on behalf of respondent claimant submitted that error which has been pointed by learned advocate Mr. Shelat in ground 'E' in appeal memo, for that, appellant may be given an opportunity to make application before claims Tribunal for correction of figure which has been taken into account while assessing income of deceased Rs. 2000. According to her submission, income assessed Rs. 2000/- itself is error instead of that, income must have to be assessed Rs. 2500/-. 21. I have considered submission made by all learned advocates appearing for respective parties, and decisions relied by them. I have also perused award passed by claims Tribunal, Morbi. The accident occurred 11/3/2005 at night about 10.15 pm on Morbi Rajkot State Highway near Maruti Oil Mill. At that time, deceased Bharat Arjanbhai Bhalodia, after completion of his work going to Virpar his house on scooter on Morbi Rajkot State Highway. During that period, when he reached near Maruti Oil Mill, opponent no. 1 coming from opposite side driving luxury bus in rash and negligent manner on wrong side and giving dashed to scooter. Due to that deceased Bharatbhai died on the spot and damaged caused to Bajaj Scooter. The deceased was doing business of Pangalla and receiving income of Rs. 10,000/- and also having income of Rs. 60,000/- from agriculture. The FIR was lodged against driver of Luxury bus at Morbi Taluka Police Station being crime register no. 39/2005. The applicant no. 1 is widow, no. 2 and 3 are children and no. 4 and 5 are parents. The total claim was made Rs. 7,00,000/- by claimants. 22. Before claims Tribunal, opponent no. 1 and 2 not remained present and not participated in proceeding. The appellant insurance company has filed written statement vide exh 12 denying averment made in claim petition and raised contention in para 15 to the effect that driver was not holding valid and effective driving license at the time when accident occurred. Vide exh 20 on 5/2/2009, issues have been framed by claims Tribunal. On behalf of claimant - Kasturben Arjanbhai Bhalodia, mother of deceased, was examined vide exh 21. The driver was not examined before claims Tribunal. Thereafter, claims Tribunal has considered that accident has occurred due to rash and negligent driving of driver of luxury bus. The claims Tribunal has considered income of Rs. On behalf of claimant - Kasturben Arjanbhai Bhalodia, mother of deceased, was examined vide exh 21. The driver was not examined before claims Tribunal. Thereafter, claims Tribunal has considered that accident has occurred due to rash and negligent driving of driver of luxury bus. The claims Tribunal has considered income of Rs. 2000/- in para 13 and accordingly, calculation has been carried out keeping in mind income of Rs. 2500/-, for which, according to learned advocate Mr. Shelat it is erroneous calculation made by claims Tribunal. 23. Before this Court, learned advocate Mr. Shelat has raised two contentions. One is in respect to license and another is in respect to error in calculation made by claims Tribunal for assessment of compensation. In para 18, insurance policy was produced on record vide exh 31 and period of insurance policy covered date of accident 18/3/2005. The para 19 is relevant where question of license has been examined by claims Tribunal. According to submission made on behalf of appellant insurance company before claims Tribunal marked 31/1 copy of driving license of bus driver was produced on record and after producing such license, submission was made by lawyer of insurance company that driver was not holding valid and effective license to drive luxury bus. Therefore, it amounts to breach of terms and condition of insurance policy. Hence, there is no liability occurred for payment of compensation to claimants. The claims Tribunal has considered very same license at mark 31/1 and come to conclusion that looking to driving license itself, where period mentioned from 13/12/2004 to 12/12/2024. The accident occurred on 11/3/2005, which shows that driver was holding valid and effective license for light motor vehicle includes Transport vehicle. Therefore, contention raised by advocate of insurance company has been rejected. 24. In light of submission made by learned advocate Mr. Shelat and decision which has been relied by him and definitions as referred above and considering driving license of Driver, question is whether appellant insurance company has proved his contention before claims Tribunal, Morbi that driver was not holding valid and effective license to drive luxury bus or not? For that, no oral evidence led by appellant insurance company. Not only that, but it was also no submission made by advocate of insurance company before claims Tribunal that this driving license meant for non transport vehicle and it can not be used for transport vehicle. For that, no oral evidence led by appellant insurance company. Not only that, but it was also no submission made by advocate of insurance company before claims Tribunal that this driving license meant for non transport vehicle and it can not be used for transport vehicle. No such clarification by demonstration giving details has been made or distinguished facts has been pointed out by advocate of insurance company before claims Tribunal. It is a duty of appellant insurance company when a specific plea has been raised that this driving license is not authorized to drive luxury bus being transport vehicle. Then such contention or facts must have to be proved by cogent evidence or to make clear submission. 25. According to my opinion, looking to facts on record, at the time of oral submission, xerox copy of driving license of driver mark 31/1 was produced and relying upon same vague arguments were made but it was not pointed out by advocate of insurance company by specific pleadings and submissions that this license is valid for Non Transport vehicle and there is no endorsement made by RTO to drive transport vehicle. Therefore, it is not valid and effective license. No such detailed pleadings and submissions are made and no one examined on behalf of appellant from RTO, who can explain whether on the basis of Non Transport Driving license with light motor vehicle license, driver can drive transport vehicle or not?, what would be effect of endorsement which required to be made by RTO for driving 'Transport vehicle' or whether driving license authorized to drive LMV includes transport vehicle having gross weight less than 7500 Kg or not? 26. Therefore, contention raised by learned advocate Mr. Shelat before this Court can not be accepted because this contention has not been proved by appellant insurance company before claims Tribunal, Morbi by leading proper evidence on record. It is a duty and burden upon party who raise contention, must have to be proved by leading proper evidence on record. There was no evidence on record produced by appellant which proved facts that for driving luxury bus, separate driving license is required by driver or separate endorsement required from RTO in driving license of non transport vehicle or LMV does not includes transport vehicle having less than gross weight 7500 Kg. There was no evidence on record produced by appellant which proved facts that for driving luxury bus, separate driving license is required by driver or separate endorsement required from RTO in driving license of non transport vehicle or LMV does not includes transport vehicle having less than gross weight 7500 Kg. Therefore, in absence of such detailed evidence, which has not been produced by appellant insurance company before claims Tribunal, Morbi and without making any distinguished facts between driving license for 'Non Transport Vehicle' and 'Transport vehicle' including LMV, claims Tribunal has rightly relied upon driving license for LMV includes transport vehicle bus in question, where period of driving license was mentioned which covered date of accident, for that, according to my opinion, claims Tribunal has not committed any error which would require interference by this Court. 27. The detailed submission made by learned advocate Mr. Shelat before this Court first time to highlight facts that driver was not holding valid and effective license of _Transport vehicle_, such efforts was not made at all before claims Tribunal by appellant advocate and claims Tribunal remained in dark without giving details by advocate of appellant. If a specific contention raised before claims Tribunal, then Claims Tribunal must have to be examined it but in absence of specific contention claims Tribunal has rightly relied upon driving license of driver. It is also necessary to note that section 2(21) defined 'Light Motor Vehicles' which means 'Transport vehicle' does not exceeded weight 7500 kg which include bus in question. 28. At this stage it is necessary to quote entire details of smart card of Driver's driving license as under: SUB INFORMATION OF A SMART CARD DRIVING LICENSE (GUJARAT STATE) License Number : GJ03/079523/04 Date of Issue: 23/12/2004 26/07/2005 Name:- MAKWANA BHUPENDRA CHIMANLAL Address: JIVANTIKA NAGAR GANDHIGRAM RAJKOT 360001 Tel no. 2584014 Birth Date:- 06/01/1981 Blood Group Ref No. GJ03/079523/04 Type of Vehicle Date of Issue Badge Number AR 13/12/2004 LMV 13/12/2004 MC EX50CC 13/12/2004 Validity for Non Transport Vehicle: 13/12/2004 To 12/12/2024 Validity for Transport Vehicle: To --------------------- SIGNATURE OF APPLICANT RECEIPT AMOUNT RS. 25/- RECEIPT NUMBER AA/5168936 RECEIPT DATE 26/07/05 -------------------- SIGNATURE OF RTO_ 29. The above details of Driving License not disclosed fact that said Driving license is not valid for transport vehicle. Only validity for non transport vehicle 13/12/2004 to 12/12/2024 is mentioned. 25/- RECEIPT NUMBER AA/5168936 RECEIPT DATE 26/07/05 -------------------- SIGNATURE OF RTO_ 29. The above details of Driving License not disclosed fact that said Driving license is not valid for transport vehicle. Only validity for non transport vehicle 13/12/2004 to 12/12/2024 is mentioned. But driving license is valid for type of vehicle - AR, LMV, and MC EX 50CC WIGR with effect from 13/12/2004. Merely validity period is mentioned for Non Transport Vehicle can not be interpreted as Driver was not having Driving license for AR, LMV and MC Ex 50 CC WIGR. The Light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or Road roller the unladen weight of any which does not exceed 7500 Kilograms. That means Driver of Luxury bus was having duly and effective license to drive Light Motor Vehicle includes transport vehicle having weight less than 7500 kg. The weight of Luxury Bus mentioned in Insurance Policy less than 7500 Kg as recorded 7450 Kg. This facts of weight less than 7500 Kg is not disputed by Appellant Insurance Company because it is mentioned in Insurance Policy which was produced before claims Tribunal at exh. 31. Therefore, driver of Luxury bus was having driving license for light motor vehicle which includes Transport vehicle less than gross weight 7500 Kg. Therefore, driver was possessing valid, effective and duly license on date of accident to drive type of vehicle light motor vehicle includes bus in question. 30. Looking to driving license it is for 'Light Motor Vehicle', which includes in section 2(21) definition 'Transport Motor Vehicle' having gross weight less than 7500 Kg. So Luxury bus is covered by 'Transport vehicle' having weight less than 7500 as per policy issued by insurance company. As per driving license possessed by driver of luxury bus, it can not consider to be totally invalid for driving luxury bus. But on the contrary it found valid and effective license for Luxury bus. As per submission made by learned advocate Mr. Shelat at the most it require some separate endorsement but such contention was not raised by appellant before claims Tribunal. Naturally, claims Tribunal has not examined in detail such contention which has not been raised before claims Tribunal but it was raised before this Court first time by appellant insurance company. As per submission made by learned advocate Mr. Shelat at the most it require some separate endorsement but such contention was not raised by appellant before claims Tribunal. Naturally, claims Tribunal has not examined in detail such contention which has not been raised before claims Tribunal but it was raised before this Court first time by appellant insurance company. The accident is occurred not because of alleged invalid license or because of endorsement is not made in driving license but it was occurred because of rash and negligent driving of luxury bus driver. The certificate form no. 38 which has been relied by learned advocate Mr. Shelat which is certified for fitness applicable in case of 'Transport vehicle' only but 'Light Motor vehicle' definition also include 'Transport vehicle', for which, certificate has been issued by RTO. Therefore, contention raised by learned advocate Mr. Shelat can not be accepted because this contention means breach has not been proved by leading proper evidence before claims Tribunal while examining person from RTO or driver/owner before claims Tribunal. No officer was examined by appellant insurance company before claims Tribunal. Therefore, such contention naturally not examined by claims Tribunal, Morbi, for that, claims Tribunal has not committed any error which would require interference by this Court. 31. Recently very same question has been considered by Apex Court in case of National Insurance Co. Ltd vs. Annappa Irappa Nesaria & Ors reported in 2008 AIR SC 1418. The brief facts of aforesaid decisions are that the vehicle involved in accident was matador van bearing registration no. KA 23/2890. It had goods carriage permission granted in terms of form no. 7 of Motor Vehicle Act. It was insured with appellant. The said vehicle met with an accident on 9/12/1999 causing death of one Gandawwa wife of respondent no. 1 herein. The contention was raised on behalf of appellant insurance company that driver of said vehicle did not possess an effective license to drive transport vehicle. Accordingly, issue was framed by claims Tribunal which read as under: whether respondent no. 3 proves that driver of offending vehicle was not an authorized person to drive the same? The answer given by claims Tribunal in para 5 and same reasoning of Tribunal is considered by Karnataka High Court in para 5 and 6 are quoted as under: 5. Accordingly, issue was framed by claims Tribunal which read as under: whether respondent no. 3 proves that driver of offending vehicle was not an authorized person to drive the same? The answer given by claims Tribunal in para 5 and same reasoning of Tribunal is considered by Karnataka High Court in para 5 and 6 are quoted as under: 5. The learned Tribunal in support of its award on Issue No.3, held: DW-1 in this cross examination admitted that offending vehicle is authorised to transport 3500 kgs. goods. Further, in this cross-examination stated that LMV means transport vehicle which unladen weight does not exceed 7500 kgs. Ex.D-2 at Column No.12 clearly shows that the unladen weight of the offending vehicle is 3500 kgs. Thereby it is very much clear that said unladen weight of the offending vehicle is much less than 7500 kgs. as admitted by DW-1 in his cross- examination which is also the effect as defined in the MV Act. So when the unladen weight of the offending vehicle is less than 7500 kgs. the RW-1 driver who is having DL as per Ex.D-3 is certainly authorised to drive the offending vehicle. The decision relied upon by Adv. for petitioners at serial No.2 ruling reported in 2000(5) KLJ 473 (DB) or own Hon'ble High Court had clearly held that where offending vehicle is weighing 4960 kgs. driven by a person having DL to drive the LMV, there is breach of issuance policy, as statute classifies vehicle weighing below 7500 kgs. as LMVs and Insurer is liable to satisfy award in respect of accident that occurred when the vehicle was being driven by driver holding such licence. So in view of the decision of Division Bench of our own Hon'ble High Court and also the decision of Supreme Court referred at Sl. No.1 Adv. for petitioners it is very much clear that RW1 is having valid DL as per Exh.D3 and the offending vehicle unladen weight is 3500 kgs. is certainly was having effective and valid DL and so R3 has failed to prove the issue No.3 and accordingly I answer the same in the negative. 6. The High Court on an appeal preferred by the appellant herein opined : "Counsel for the appellant-Insurance Company, questioning the liability, contended that the driver did not possess a valid licence to drive LMV. 6. The High Court on an appeal preferred by the appellant herein opined : "Counsel for the appellant-Insurance Company, questioning the liability, contended that the driver did not possess a valid licence to drive LMV. According to the respondents, the driver had driving licence to drive LMV, a transport vehicle. According to the appellant, the vehicle in question involved in the accident is a transport vehicle. The said contention cannot be accepted by this Court, in view of the fact that claimants are third parties even on the ground that there is violation of terms and conditions of policy, the insurance company cannot be permitted to contend that it has no liability. Accordingly, I do not see any merit in this appeal." 32. The submission made by appellant insurance company advocate in para 7 which was replied by advocate of claimant in para 8, therefore, para 7 and 8 are quoted as under: 7. Mr. Vishnu Mehra, learned counsel appearing on behalf of the appellant would submit that the High Court committed a serious error in passing the impugned judgment in so far as it failed to take into consideration that a light motor vehicle cannot be a transport vehicle within the meaning of the provisions of the Act. It was submitted that for the purpose of grant of licence for driving a vehicle, an application has to be filed in Form No.4, whereafter only a licence is granted in Form No.6. Learned counsel contended that the said forms have been prescribed in terms of Rules 14 and 16 of the Central Motor Vehicles Rules, 1989, and on a perusal thereof as also the aforementioned Forms, it would be clear that a light motor vehicle does not answer the description of a transport vehicle. 8. Mr. S.N. Bhat, learned counsel appearing on behalf of the respondents, on the other hand, submitted that the contention raised herein by the appellant has neither been raised before the Tribunal nor before the High Court. In any event, it was urged, that keeping in view the definition of the light motor vehicle as contained in Section 2(21) of the Motor vehicles Act, 1988 (Act for short), a light goods carriage would come within the purview thereof. In any event, it was urged, that keeping in view the definition of the light motor vehicle as contained in Section 2(21) of the Motor vehicles Act, 1988 (Act for short), a light goods carriage would come within the purview thereof. A 'light goods carriage' having not been defined in the Act, the definition of the 'light motor vehicle' clearly indicates that it takes within its umbrage, both a transport vehicle and a non-transport vehicle. Strong reliance has been placed in this behalf by the learned counsel in Ashok Gangadhar Maratha vs. Oriental Insurance Company Ltd., ( 1999 (6) SCC 620 )." 33. Thereafter, this question has been considered and examined by Apex Court in para 9 to 17, which are quoted as under: 9. The Motor Vehicles Act, 1988, which was enacted to consolidate and amend the law relating to motor vehicles, is a complete code. 10. Section 2 of the Act provides for interpretation of the terms contained herein. It employs the words 'unless the context otherwise requires'. Section 2(16) of the Act defines 'heavy goods vehicle' to mean any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms. 11. Section 2(21) defines 'light motor vehicle' and Section 2(23) defines 'medium goods vehicle' as under: "Light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms." "Medium goods vehicle means any goods carriage other than a light motor vehicle or a heavy goods vehicle." Section 3 of the Act is in the following terms: "3. Necessity for driving licence.- (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motorcab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of section 75 unless his driving licence specifically entitles him so to do." 12. The Central Government has framed Rules known as The Central Motor Vehicles Rules, 1989. 13. The word 'Form' has been defined in Rule 2(e) to mean a Form appended to the rules. The Central Government has framed Rules known as The Central Motor Vehicles Rules, 1989. 13. The word 'Form' has been defined in Rule 2(e) to mean a Form appended to the rules. "I Apply for a licence to enable me to drive vehicles of the following description: (d) Light motor vehicle (e) Medium goods vehicle (g) Heavy goods vehicle (j) Motor vehicles of the following description:...." After amendment the relevant portion of Form 4 reads as under: "I Apply for a licence to enable me to drive vehicles of the following description: (d) Light motor vehicle (e) Transport vehicle (j) Motor vehicles of the following description:...." 14. Rule 14 prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles. Clause (e) provides for 'Transport vehicle' which has been substituted by G.S.R. 221(E) with effect from 28.3.2001. Before the amendment in 2001, the entries 'medium good vehicle' and 'heavy goods vehicle' existed which have been substituted by 'transport vehicle'. As noticed hereinbefore, 'Light Motor Vehicles' also found place therein. 15. 'Light Motor Vehicle' is defined in Section 2(21) and, therefore, in view of the provision, as then existed, it included a light transport vehicle. Form 6 provides for the manner in which the licence is to be granted, the relevant portion whereof read as under: "Authorisation to drive transport vehicle Number................... Date........ Authorised to drive transport vehicle with effect from....... Badge number ......... Signature...................... ............................... Designation of the licensing authority Name and designation of their authority who conducted the driving test." 16. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, 'light passenger carriage vehicle' and 'light goods carriage vehicle'. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well. 17. The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law." 34. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well. 17. The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law." 34. In view of aforesaid decision in case of Annappa Irappa Nesaria if driver having license of light motor vehicle then he was having license to drive to enable him to drive vehicle of light motor vehicle including transport vehicle having gross weight less than 7500 kg as per definition of Section 2(21) of Motor vehicle Act. However, insurance company has not raised specific plea except general contention that driver was not possessing valid and effective license on the date of accident. Except that there is no pleading and specific submission made before claims Tribunal. Therefore, in light of aforesaid decision of Apex Court in case of Annappa Irappa Nesaria, contention raised by learned advocate Mr. Shelat can not be accepted. 35. The view taken by Apex Court in case of Swaran Sing, which has been considered by Apex Court in subsequent decision which has been relied by learned advocate Mr. Shelat. The decisions which relied by learned advocate Mr. Shelat is not applicable to facts of present case because in present case Driver was having driving license for light motor vehicle which includes transport vehicle bus in question as per section 2 (21) of M. V. Act. Therefore, such technical stand or plea which has been raised by insurance company for denying merely statutory liability to pay compensation after issuing insurance policy in favour of insured, such technical stand has been deprecated by Apex Court in case of Oriental Insurance Company Limited vs. Ozma Shipping Company and Anr reported decision of 2009 (9) SCC 159. The relevant observation made in para 18 and 19 are quoted as under: "18. Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on the credibility and trustworthiness of the insurance companies. 19. Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on the credibility and trustworthiness of the insurance companies. 19. Incidentally by adopting an honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability. The tendency of approaching the Apex Court in every such case also needs to be effectively curbed." 36. In respect to error which has been pointed by learned advocate Mr. Shelat as per ground 'E' of appeal memo against which learned advocate Ms. Ajmera submitted that claimants are likely to file application for correction of error before claims Tribunal. Therefore, as per submission made by learned advocate Ms. Ajmera liberty is to be given to both parties Appellant and Respondent claimants to file necessary application for correcting error which is committed by claims Tribunal. At this stage, I am not deciding this question of error which has been raised by learned advocate Mr. Shelat before this Court as liberty is given to both parties to file such application before claims Tribunal. Therefore, it is open for both parties including to Appellant and claimant to file necessary application before claims Tribunal with a prayer to correct error in assessment of compensation. After receiving such application from either parties, it is directed to claims Tribunal, Morbi to consider it and decide it in accordance with law after giving reasonable opportunity of hearing to all respective parties. Subject to that, I am not expressing any opinion whether claims Tribunal has committed any error or not? It is open for either party to challenge if order is adversed to them to higher forum. 37. According to my opinion, claims Tribunal has not committed any error while deciding question of license possessed by driver including LMV is considered to be valid and effective to drive luxury bus (Transport Vehicle), which would require interference by this Court. 38. Hence, there is no substance in present appeal, present appeal is dismissed. Today, first appeal is dismissed, therefore, no order is required to be passed on civil application. Accordingly, civil application is dismissed.