Judgment :- The present appeal is by the insurance company with which the vehicle namely Tata Indica Car bearing registration No.KA-03-C-4520 that was involved in the accident that occurred on 29.06.2008 at 8.30p.m near Arabic College, Nagavara Main Road in Bangalore City was insured. The other vehicle involved in the said accident was the motor cycle bearing registration No.KA-04-EE-7016 which was driven by the injured claimant. 2. The facts that the accident occurred on the said date time and place, as a result of which the injured claimant sustained injuries and that the said vehicle was insured with the appellant – insurance company as on the relevant date of accident are not in dispute. The appellant – insurer has challenged the correctness of the impugned Judgment and Award dated 24.11.2009 passed in MVC No.6741/2008 by the Motor Accidents Claims Tribunal, Bangalore (hereinafter referred to as ‘Claims Tribunal’ for short). 3. Heard the arguments of Sri. H.S.Lingaraj, learned counsel for the appellant – insurer and Sri.Mohd.Sheriff, learned counsel for the first respondent – claimant. The second respondent herein, the owner of the said car, has not chosen to contest this appeal despite receipt of notice thereof. Perused the entire material found in the original records obtained from the Claims Tribunal. 4. Learned counsel for the appellant – insurer strongly contends that though the driver of the said car was prosecuted for the offences under Section 134 (a)(b) r/w Section 187 and Section 3(1) r/w Section 181 of Motor vehicles Act 1988 for having driven the said car without holding a valid driving licence and for his failure to produce the licence when demanded by the police and despite RW1 deposing to the said fat, the Claims Tribunal erroneously fastened the liability to pay compensation to the claimant and therefore, the impugned Judgment and Award deserves to be set aside as against the appellant. He further contends that the compensation awarded by the Claims Tribunal under various heads are on higher scale and therefore, the same deserves to be reduced considerably. 5. Per contra, learned counsel for the first respondent – claimant strongly contends that simply because the driver of the said vehicle was prosecuted for the said offences, it could not be held that he did not possess valid licence to drive the said car as on the relevant date of accident. 5. Per contra, learned counsel for the first respondent – claimant strongly contends that simply because the driver of the said vehicle was prosecuted for the said offences, it could not be held that he did not possess valid licence to drive the said car as on the relevant date of accident. He further contends that the insurer did not issue notice either to the owner or to the driver of the said vehicle calling upon him to produce the licence held by the driver and no material is obtained by the insurer from the office of the RTO in support of his plea that the driver of the said car did not possess the licence as on the relevant date of accident and therefore, the Claims Tribunal has rightly fastened the liability on the appellant – insurer to pay the entire amount of compensation to the claimant. He further contends that having regard to the nature of injuries sustained by the claimant as a result of the said accident and the permanent disability which the claimant has suffered, the Claims Tribunal has awarded reasonable amounts under various heads and therefore, the quantum of compensation awarded by the Claims Tribunal cannot be disturbed in the present appeal. 6. The plea taken by the insurer of the said car (respondent No.1 before the Claims Tribunal) at para No.10 of the WS reads as under: “Without prejudice to the stand taken above, this respondent submits that the driver was driving the Tata Indica Car – Taxi without possessing a valid and effective licence as on the date of accident. This respondent submits that he was having DL to drive LMV Non Transport only for the period from 21.03.2003 to 20.03.2023. But he was driving the Tata Indica Car – Taxi. Therefore, he was charge sheeted by the police for the offence under Sections 279, 338 of IPC and also under Section 134 (a) (b) r/w Section 187 and under Section 3(1) r/w Section 181 of Motor Vehicle Act 1988. This also goes to show that the driver was not having valid driving licence as on the date of accident and therefore, the respondent – insurance company is not liable to pay compensation and not liable to indemnify the respondent No.2”. 7. In support of the above plea, the insurer has got examined RW1 Chandrashekar its Assistant Manager. This also goes to show that the driver was not having valid driving licence as on the date of accident and therefore, the respondent – insurance company is not liable to pay compensation and not liable to indemnify the respondent No.2”. 7. In support of the above plea, the insurer has got examined RW1 Chandrashekar its Assistant Manager. Though it is stated in the WS that the driver of the said car was holding licence to drive Light Motor Vehicles only which was valid for the period from 21.03.2003 to 20.03.2023, but he was driving the said taxi, a transport vehicle, the same is not reiterated in the affidavit sworn to by RW1 as his examination–in-chief. Further, this RW1 has also not stated in his evidence that the owner of the said vehicle deliberately and consciously allowed the said driver to drive it without holding valid licence to drive the same. 8. Besides the above, RW.1 has stated in his cross-examination that no correspondence was made by the insurance company with the respondent – owner in respect of the driver of the said car not holding licence to drive the same. He has also stated in his cross examination that he did not enquire with the RTO as to the driver not holding the licence to drive the said taxi. He has further stated that he has no personal knowledge about the driver not holding the licence to drive the said taxi. 9. In view of the above plea and evidence, the Claims Tribunal has rightly recorded its finding that the appellant insurer is liable to pay compensation to the claimant. 10. Learned counsel for the appellant – insurer, placing strong reliance on the decision of the Hon’ble Supreme Court in the case of Sardari & Ors. V. Sushil Kumar & Ors, reported in 2008 AIR SCW 2075 contends that filing of charge sheet by the police concerned against the driver of the said taxi for the offence as aforesaid was sufficient for the Claims Tribunal to hold that the insurer substantiated his plea that the said driver was not holding valid licence to drive the said taxi as on the date of accident. 11. 11. At para No.2 of the said judgment it is observed that the driver of the tractor involved in the accident namely Sushil Kumar was examined before the Motor Accidents Claims Tribunal and he categorically stated that he did not know how to drive the tractor and that he never even tried to learn driving of the tractor and also admitted that he had not been possessing any valid licence to drive the tractor. It is further observed that it was accepted by the said driver that he had never applied for the licence. Based on the said evidence, the Claims Tribunal, as well as the High Court, recorded their concurrent findings that the driver of the said vehicle, viz: Sushil Kumar, never held the licence to drive the tractor. That being so, the Hon’ble Supreme Court held in the said decision that the insurer was able to prove the factum of absence of driving licence with the driver to drive the tractor and therefore, insurer was not liable to indemnify the owner of the said vehicle. 12. In the instant case the facts are that the driver of the said taxi has not been examined and no notice was served upon the owner of the driver of the said taxi calling upon him to produce the driving licence. Therefore, the said decision of Hon’ble Supreme Court cannot be made applicable to the present case. 13. Learned counsel for the respondent – claimant has relied upon the decision of the Hon’ble Supreme Court in the case of Rukmani and others V. New India Assurance Co.Ltd. and others reported in 1999 ACJ 171. In the said case before Hon’ble Supreme Court there was evidence of Inspector of police who investigated the criminal case pertaining to the accident in question. He has deposed before the Claims Tribunal that the respondent No.1 therein the driver of the vehicle involved in the accident failed to produce the driving licence on demand and therefore, he was charge sheeted for his failure to produce the driving licence when demanded to produce. On those facts Hon’ble Supreme Court observed at para 3 of its judgment as under. “We have seen the only evidence which the insurance company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. On those facts Hon’ble Supreme Court observed at para 3 of its judgment as under. “We have seen the only evidence which the insurance company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, PW1 who was the Inspector of Police, stated in his examination-in-chief, “My enquiry revealed that the respondent No.1 did not produce the licence to drive the abovesaid scooter. The respondent No.1 even after my demand did not submit the licence since he was not having it.” In his cross-examination he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the respondent No.1 was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the insurance company. It did not summon the driver of the vehicle. No record from the Regional Transport Authority has also been produced. In these circumstances, the insurance company has not discharged the burden cast upon it under section 96(2)(b)(ii) of the Motor Vehicles Act, 1939”. [Emphasis supplied by me] 14. In the case of National Insurance Company Limited, Bangalore v Smt. H.D.Nagarathnamma and Others reported in 2001(4) Kar LJ 566(A), the Division Bench of this Court has observed as; “mere raising of plea in written statement does not absolve insurer of his liability to satisfy award – Plea should be established. Burden of proof is on insurer to prove that insured, by entrusting vehicle to person not holding licence to drive type of vehicle in question, had deliberately committed breach of condition of policy. 15. Further, subsequent to the above decision of the Division Bench of this Court, learned Single Judge of this Court has observed in the case of Mahabala Vs Sathyanarayana and Others reported in ILR 2004 KAR 375 at para Nos.12, 13 and 18 as under: Para 12: In support of said pleading, there is evidence of RW-1 Prakash. 15. Further, subsequent to the above decision of the Division Bench of this Court, learned Single Judge of this Court has observed in the case of Mahabala Vs Sathyanarayana and Others reported in ILR 2004 KAR 375 at para Nos.12, 13 and 18 as under: Para 12: In support of said pleading, there is evidence of RW-1 Prakash. It is stated by him that the respondent No.1 had no driving licence and the R.T.O. Office informed that it has no record to show that any driving licence was issued to the first respondent and first respondent also failed to produce driving licence before the Vehicle Inspector when the motor cycle was inspected by M.V.1 after accident. However, except the said statement of RW-1 examined for respondent No.3, there is no other evidence or record. So, the question is, whether this much evidence coupled with the pleading referred to above is sufficient to hold that the Insurance Company has discharged its burden cast on it since, admittedly, the burden to prove the same was on the Insurance Company, as held by this Court even before quarter century in the case of SANJIVA SHETTY vs ANANTHA & OTHERS and reiterated recently also in the case of H.G.RAMACHANDRA RAO vs MASTER SRIKANTHA & OTHERS and even by the Supreme Court recently in the case of RUKMANI AND OTHERS vs NEW INDIA ASSURANCE CO. AND OTHERS. Para 13: Admittedly, the 3rd respondent – Insurance Company has neither summoned respondent No.1 – rider of motor cycle to give evidence nor obtained and produced any record issued by RTO nor summoned anybody from the office of R.T.O. to show that respondent no.1 had no driving licence to drive motor cycle. In the case on hand. If really respondent No.1 had no driving licence to drive it, there was no reason for Police not to charge-sheet respondent No.1 for driving motor cycle without driving licence particularly when charge-sheeted for rash and negligent driving, as is clear from charge-sheet Ex.R-2. This fact also cannot be ignored. Para 18: Thus, it is only in case of a breach or violation of the promise on the part of the insured that the insurer can hide under the umbrella of the exclusion clause. The expression ‘breach’ is of great significance. The dictionary meaning of ‘breach’ is ‘infringement or violation of a promise or obligation’. Para 18: Thus, it is only in case of a breach or violation of the promise on the part of the insured that the insurer can hide under the umbrella of the exclusion clause. The expression ‘breach’ is of great significance. The dictionary meaning of ‘breach’ is ‘infringement or violation of a promise or obligation’. It is, therefore, abundantly clear that the insurer will have to establish that the insurer is guilty of an infringement or violation of a promise that a person, who is duly licence, will have to be incharge of the vehicle. The very concept of infringement or violation of the promise that the expression ‘breach’ carries within itself induces an inference that the violation or infringement on the part of the promisor must be a willful infringement or violation. As such, the Insurance Company will have to not only establish that insured was guilty of an infringement or violation of promise, it has also to satisfy the Tribunal that such infringement or violation on the part of the insured was willful, as held by the Apex Court in the case of SKANDIA INSURANCE CO.LTD vs KOKILABEN CHANDRAVADAN. 16. Following the above observations of the Hon’ble Supreme Court and this Court in the said decisions, I am of the opinion that the appellant – insurer failed to discharge the burden of proving breach of condition of the insurance policy alleged to have been committed by the owner of the said taxi. Therefore, the Claims Tribunal did not commit any error in fastening the liability on the appellant – insurer to pay compensation to the respondent – claimant. 17. It is not in dispute, as a result of the said accident the claimant sustained fracture of his right femur resulting in permanent disability to the extent of 36% in respect of said limb and 12% in respect of his whole body. It is also not in dispute that the injured claimant has been doing vegetable vending. Having regard to the avocation of the claimant, the nature of fracture and the extent of permanent physical disability, the Claims Tribunal has taken income of the injured claimant at Rs. 3,000/- per month and the functional disability at 9% and has awarded a sum of Rs. 58,320/- towards ‘loss of future earnings’ or ‘reduction in the earning capacity of the claimant’. The Claims Tribunal has also awarded Rs. 3,000/- per month and the functional disability at 9% and has awarded a sum of Rs. 58,320/- towards ‘loss of future earnings’ or ‘reduction in the earning capacity of the claimant’. The Claims Tribunal has also awarded Rs. 50,000/- towards ‘pain and sufferings’, Rs.45,000/-towards ‘medical expenses’ in view of the claimant producing the bills for the said amount, Rs.30,000/- towards ‘loss of earning during the period of treatment and rest’ and also expenses towards conveyance, nourishment etc., and another sum of Rs.20,000/- towards ‘future medical expenses’ based on the evidence of the doctor who treated the injured claimant. The Claims Tribunal has also awarded a sum of Rs.10,000/- towards ‘loss of amenities and enjoyment’ for the future life of the claimant. 18. It appears that Rs. 50,000/- awarded under the head ‘pain and suffering’ is on the higher scale. The amount of Rs.10,000/- awarded towards ‘loss of amenities’ is on the lower scale inasmuch as, undisputedly, the injured claimant was aged about 18 years as on the date of accident and as such he has to suffer loss of amenities during his entire future life which may not be less than 45 to 50 years. Therefore, I do not find any reason to interfere with the quantum of total compensation awarded by the Claims Tribunal in favour of the injured claimant. 19. For the reasons aforesaid the present appeal is dismissed as being devoid of merits. Whatever amount is deposited with this Court shall be transmitted to the Claims Tribunal, so as to enable the claimant to withdraw the same.