1. A passenger bus met with an accident. The accident resulted in filing of several claims before the Motor Accidents Claims Tribunal, Leh, Ladakh. Those claims were considered together by the Tribunal. The owner, appellant before us, as well as the Insurance Company defended the claims before the Tribunal. The principal issues, i.e. whether the accident was due to rash and negligent driving and whether the claimants are entitled to compensation, were decided in favour of the claimants to which no issues were raised in the appeal preferred by the Insurance Company, or in the present Letters Patent Appeal. 2. On the basis of the defence put forward by respondent-Insurance Company, the following issues were raised: (a) Whether respondent no. 3 (the driver of the vehicle) was not holding a valid driving license to drive a passenger bus on the date of accident, if so, what is its effect? And (b) Whether the vehicle on the date of accident was being plied in violation of terms of insurance policy and conditions of the route permit as the bus was overloaded? 3. These issues were dealt with by the Tribunal in the manner as follows: "Issue No. 3: To prove the issue, Incharge RTO Office Leh Mr. Jaswant Singh has been produced. According to this witness as per the record, which the witness had brought with him, the driver of the offending vehicle was not holding the valid driving licence to ply the passenger bus. Witness has stated that the licence to ply a public transport needed the endorsement as PSV (Passenger Service Vehicle). In case of the Driving Licence of the respondent No. 3 this endorsement was not there. Statement of Mr. Rattan Lal Assistant Branch Manager, National Insurance Company, Branch Leh is also to the same effect. From the evidence adduced by the respondent No. 1 it becomes clear that respondent No. 2 had no valid driving licence to ply the offending vehicle at the time of the accident. Finding on this point is accordingly recorded. Now, what has to be its effect on the fate of the claim petition is not to be seen here. From the evidence adduced by the respondent No. 1 it becomes clear that respondent No. 2 had no valid driving licence to ply the offending vehicle at the time of the accident. Finding on this point is accordingly recorded. Now, what has to be its effect on the fate of the claim petition is not to be seen here. Since the respondent No. 1 has been given the liberty to file a separate case against the owner of the vehicle, effect of invalid driving licence of the driver of the vehicle will be seen in that separate case and not in the present case. Issues 4 and 5 though framed, as having arisen in view of the pleadings of the parties, need no disposal, at this stage for the reason that respondent insurance company has been held to be free to launch a separate action against the owner of the offending vehicle after making the payment of the awarded amount with interest to the petitioners. Because petitioners in the subsequent case cant be dragged as a party, as they have nothing to agitate or to say in the dispute between the Insurance Company and the insured owner. That indeed would be a tussle between the Insurance Company on one hand and the owner of the offending vehicle on the other. Driver of the vehicle may have some involvement there, but the petitioners (claimants) have no concern at all with any such litigation. Therefore, leaving the above two issues open here same need to be adjudicated upon in a separate action to be brought by the respondent Insurance Company against the insured, who is the owner of the offending vehicle. In that separate action to be brought by the insurer, the insured would get every opportunity to defend. In the present petition paramount concern of this Forum has to be to relieve the claimants from the ordeals of the litigation as early as possible, distressed class as they are having lost their kith and kin; some of whom at the prime of their youth. Money may of course provide a succour to them, but it cant heal their wounds caused because of the loss of their blood relations." 4. Against the award of the Tribunal, respondent-Insurance Company preferred an appeal. Money may of course provide a succour to them, but it cant heal their wounds caused because of the loss of their blood relations." 4. Against the award of the Tribunal, respondent-Insurance Company preferred an appeal. The Appellate Court held that, when the Tribunal returned a finding that the driver was not authorised to drive public service vehicle, i.e., a passenger bus, it was erroneous on the part of the Tribunal to direct the Insurance Company to file a separate proceeding for recovery of the amount from the owner. The Appellate Court, accordingly, set aside that part of the award of the Tribunal which directed the respondent-Insurance Company to file a separate case. The Tribunal was directed by the Appellate Court to recover compensation from the appellant before us. The Appellate Court recorded that it has been proved that the vehicle, at the time of accident, was carrying 97 passengers; whereas it was meant to carry 42 passengers. However, while concluding, it observed that, so far as issues 4 and 5 are concerned, since the Insurance Company is succeeding on issue no. 3, there is no need to record findings on issue nos. 4 and 5. 5. In the present appeal, the appellant-owner is contending that the Appellate Court could not direct the Tribunal to recover the compensation amount from him. 6. We think that Sub-sections (1), (2) and (5) of Section 149 of the Motor Vehicles Act, 1988, which deals with the matter, had not been looked at by the Tribunal or by the Appellate Court. We set out the said provisions hereunder: "149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-- (1) If, after a certificate of insurance has been issued under sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under Cl. (b) of sub-section (1) of Section 147 (being a liability covered by the terms of the policy) or under the provisions of Section 163-A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this Section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely: (a) that there has been breach of a specified condition of the policy, being one of the following conditions, namely: (i) a condition excluding the use of the vehicle-- (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward; or (b) for organised racing and speed testing; or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle; or (d) without side-car being attached where the vehicle is a motor cycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular. (5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person." 7. Therefore, Sub-section (1) of Section 149 of the Act makes the liability of the Insurance Company co-extensive to the liability of the owner but only to the extent of the amount quantified by a judgment or award, Sub-section (2) of Section 149 of the said Act exonerates the Insurance Company from such liability; provided its defence to the extent permissible to be taken, as mentioned therein, succeeds. In the event such defence does not succeed, in terms of the provisions contained in Sub-section (5) of Section 149 of the Act, the Insurance Company is not entitled to recover from the owner the amount it has become liable to pay, unless, however, such amount is in excess of the liability undertaken by it under the insurance policy. 8. There was no issue before the Tribunal, nor it was the contention of respondent-Insurance Company before the Appellate Court, that its liability under the policy is less than the amount of compensation awarded. In other words, it was not the contention of respondent-Insurance Company at any stage that its liability was limited. On the other hand, it was the contention of respondent-Insurance Company that it is not liable to pay any sum, inasmuch as driver of the bus in question was not duly licensed. 9. The other defence of respondent-Insurance Company was that the bus was being plied in violation of terms of insurance policy and conditions of route permit. That the bus was being plied in violation of the terms of the insurance policy and conditions of route permit was sought to be highlighted by purporting to contend that, at the time when the bus met with the accident, it was overloaded. The route permit was not produced as a piece of evidence before the Tribunal or before the Appellate Court, or even before us. The insurance policy was produced. In the insurance policy, it was mentioned that the bus can take a load of 42 + 2 persons. Though it was pleaded that the bus was overloaded at the time of accident, and that 97 persons were travelling the same at that time, but the record does not suggest that there is any evidence to the effect that, at the time when the bus met with accident, it was carrying more than 44 persons. Though it was pleaded that the bus was overloaded at the time of accident, and that 97 persons were travelling the same at that time, but the record does not suggest that there is any evidence to the effect that, at the time when the bus met with accident, it was carrying more than 44 persons. Be that as it may, all breaches of condition of insurance policy are not available as a defence. In terms of Sub-section (2) of Section 149 of the Act, only those breaches of conditions of insurance policy, as specified in Sub-section (2) of Section 149 of the Act, are available as defence. Loading of the bus by passengers more in number than specified in the policy is no defence in terms of Sub-section (2) of Section 149 of the Act. Similarly, violation of conditions of route permit is also no defence available under Sub-section (2) of Section 149 of the Act. 10. That driver of the bus was not duly licensed, being contrary to the specific condition of the policy and the same being one of the available defences in terms of Sub-section (2) of Section 149 of the Act, the respondent-Insurance Company, in terms of the provisions contained in Section 2 of the Act, in the event of a finding returned to the effect that the bus at the time of accident was being plied by a person, who was not duly licensed, could avoid its liability. From the evidence recorded, it appears that driver of the bus, at the time of the accident, was not holding a valid licence to ply a passenger bus, inasmuch as the driving licence of the driver did not contain an endorsement entitling him to drive public service vehicle. There is no evidence on record to suggest that, though driver of the vehicle had a driving licence but, because he was not acknowledged to be competent to drive public service vehicle, for, there was no endorsement to that effect on his licence, as is required in terms of Rule 4 of the State Motor Vehicle Rules, the bus met with the accident. 11. A Division Bench of this Court in the case of National Insurance Co. Ltd. V Irfan Sidiq Bhat & Mohd. 11. A Division Bench of this Court in the case of National Insurance Co. Ltd. V Irfan Sidiq Bhat & Mohd. Aslam Khan, reported in 2005(1) JKJ 42, held that a combined reading of the provisions of Section 2 (21), 2 (47), 2 (35) and Section 3 of the Motor Vehicles Act leaves no room for doubt that, where a licence has been issued, the requirement of the State Rules pertaining to public service vehicle (PSV) endorsement stands satisfied. The learned counsel appearing on behalf of respondent-Insurance Company doubted the said proposition of law. For the present case, we need not go into the question whether the law so propounded is or is not correct, inasmuch as a Bench of the Honble Supreme Court comprising of three Honble Judges in the case of National Insurance Company v Swaran Singh, AIR 2004 SC 1531, has propounded in sub-paragraphs (iii) and (vi) of paragraph 105 thereof as follows: "(iii) The breach of policy condition e.g. disqualification of deriver 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 licensed driver or one who was not disqualified to drive at the relevant time. (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 insured under Section 149(2) of the Act." 12. 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 insured under Section 149(2) of the Act." 12. In terms of the pronouncement of the Honble Supreme Court, absence of a licence is not a defence available to the insurer against the insured or the third parties. To avoid liability towards insured, the insurer has to prove that insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of policy regarding use of the vehicle by duly licensed driver, or by the one who was not disqualified at the relevant time. Not only that, even when the insurer has been able to prove that driver was not holding a valid licence, insurer cannot avoid its liability towards the insured, unless it is shown and established that not having such valid licence was so fundamental that the same has been found to have contributed to the cause of the accident. As aforesaid, there is no evidence on record which would suggest that any attempt was made on the part of Insurance Company to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of policy regarding use of vehicle by a duly licensed driver, or that driver not having a valid licence contributed to the cause of the accident. 13. The Insurance Company examined two witnesses before the Tribunal. They established that, in view of absence of PSV endorsement on the licence of the driver, he was not entitled to drive the vehicle, but did not make any endeavour to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of policy regarding use of vehicle by a duly licensed driver, or that not having a valid licence by the driver contributed to the cause of the accident. 14. The learned counsel appearing on behalf of respondent-Insurance Company cited a two-Judge Bench judgement of the Honble Supreme Court rendered in the case of New India Assurance Co. Ltd. v Kusum, [2009 {82} AIC 44 {SC}]. 14. The learned counsel appearing on behalf of respondent-Insurance Company cited a two-Judge Bench judgement of the Honble Supreme Court rendered in the case of New India Assurance Co. Ltd. v Kusum, [2009 {82} AIC 44 {SC}]. In that case, the Honble Judges of the Honble Supreme Court did not take notice of the judgment of the Three-Judges Bench of the Honble Supreme Court rendered in the case of National Insurance Co. Ltd. v Swaran Singh (supra). In New India Assurance Co. Ltd. v Kusum, (supra), the Honble Supreme Court held that the owner has a duty to see that the vehicle is driven by a person having a valid driving licence and the owner did not raise any contention that he has used due diligence in allowing the driver to drive the vehicle. This observation appears to be contrary to the observations of the Honble Supreme Court rendered in the case of National Insurance Co. Ltd. v Swaran Singh (supra), for, there is a requirement on the part of the insurer to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of policy regarding use of vehicle by a duly licensed driver and, in addition to that, because the driver was not having a valid licence that contributed to the cause of accident. In view of the facts of this case, we do not think the judgment of the Honble Supreme Court, rendered in the case of New India Assurance Co. Ltd. v Kusum, report in [2009 {82} AIC 44 {SC}] (supra) has any application to the instant case. 15. In Oriental Insurance Co. Ltd. v Zaharulnisha, reported as 2008 STPL (LE) 40069 SC, the Honble Supreme Court held that the victim driver in question was having a heavy motor vehicle licence, but was driving a scooter. That has got no application insofar as the present case is concerned. 16. In the circumstances, respondent-Insurance Company had no defence to the claims in terms of Sub-section (2) of Section 149 of the Act. In such circumstances, there being no contention before the Tribunal that liability of respondent-Insurance Company was limited, in view of Sub-section (5) of Section 149 of the Act, the Tribunal could not permit respondent-Insurance Company to proceed against owner of the motor vehicle, i.e., the appellant before us. In such circumstances, there being no contention before the Tribunal that liability of respondent-Insurance Company was limited, in view of Sub-section (5) of Section 149 of the Act, the Tribunal could not permit respondent-Insurance Company to proceed against owner of the motor vehicle, i.e., the appellant before us. It is astonishing that effect of a decision returned by the Tribunal on an issue raised before it would be decided in a separate proceeding as was directed by the Tribunal. 17. The Appellate Court also failed to take note of the provisions contained in Sub-section (2) of Section 149 of the Act, i.e., the defences available to the Insurance Company and erroneously held that the insurer could avoid its liability towards the insured, because the driver of the bus did not have a valid licence, for, his licence did not contain the endorsement of PSV in terms of the requirements of the State Rules, without holding that such deficiency contributed to the cause of the accident. 18. We, accordingly, allow all the appeals, set aside the judgment and order under appeal and, at the same time, set aside that part of the order of the Tribunal by which respondent-Insurance Company was granted liberty to file separate case against the appellant, owner of the bus, for recovery of the compensation awarded by the Tribunal to the claimants before it. 19. All the CMPs filed by the claimants are also, accordingly, allowed. They are permitted to withdraw the amount of compensation awarded in their favour from the Tribunal, if respondent-Insurance Company has deposited the same. In the event the same has not yet been deposited in full, the claimants shall be entitled to take such recourse to law as they may be advised. There shall be no order as to costs.