Judgment :- 1. There is a delay of 65 days in filing M.F.A. No.3082/2010. Cause shown is accepted. Delay condoned. 2. Admit, heard both side. 3. Appeal and Cross-Objection arise out of the judgment and award in M.V.C. No.6074/2007 dated 14.9.2009 on the file of M.A.C.T., Bangalore. 4. Insurer has filed the appeal, questioning the liability whereas, claimant has sought for enhancement of compensation by filing cross-objection. 5. Tribunal has awarded compensation of Rs.1,99,500/- with interest and has directed the insurer to pay the compensation and recover the same from the owner. 6. The principal contention of the learned Counsel for the insurer is that, the driver of the offending vehicle had no effective driving licence as on the date of accident. In this regard, he relied on the evidence of RW-1 – Officer of the Insurance Company, Ex.R2 – charge sheet and submitted that, the driver is charge-sheeted for an offence punishable under Section 3 Sub-section (1) read with Section 181 of the Motor Vehicles Act, which relates to driving a vehicle without licence and submitted that, the materials produced by the insurer show that the driver of the offending vehicle had no licence. However, he admitted that the driver had the licence to drive light motor vehicle and is valid for a period of 20 years i.e., from 19.11.2003 to 18.11.2023. However, his contention is that, the licence for driving a transport vehicle is valid only for three years subject to renewal whereas, the licence granted for non-transport vehicle is valid for a period of 20 years. The insurer cannot be held liable for the negligence on the part of the owner allowing a person, who had no effective licence. 7. In support of his case, he relied on the judgment of the Apex Court reported in 2009 ACJ 1411 in the matter of Oriental Insurance Co. Ltd. –vs- Angad Kol and others and submitted that, the licence required for transport vehicle and the licence required for non-transport vehicle are different, as such, one licence to drive light motor vehicle (non transport) will not be valid for the transport vehicle and is violation of the conditions of the insurance policy and thereby insurer is not liable to indemnify the liability of the owner. 8. On the other hand, learned Counsel appearing for the claimant submitted that, claimant is a third party. 8. On the other hand, learned Counsel appearing for the claimant submitted that, claimant is a third party. He does not know as to whether the driver of the offending vehicle had a valid or effective licence or not, burden to prove as to whether the driver of the offending vehicle had valid licence or not, is mainly on the owner or the insurer. Owner has not contested the case. Though the insurer has taken the permission under Section 170 of the Motor Vehicles Act, however, has not produced relevant material to prove that the driver of the offending vehicle had no effective licence. Merely by examining the representative of the Insurance Company and producing the charge sheet by itself will not prove the case of the insurer. Charge sheet is only a prima facie material before the Court, however, the insurer has produced the relevant evidence to prove that the driver of the offending vehicle had only license to drive light motor vehicle. Even otherwise, he contended that, in the decision of the Apex Court reported in 2004 ACJ 1 in the matter of National Insurance Co.Ltd. –vs- Swaran Singh and others, it is held that, the question as to whether the driver of the offending vehicle had a valid licence or not, is a dispute between the insurer and the owner, in such cases, as far as claimant is concerned, he is entitled for compensation to be paid by the insurer, however, the insurer may recover the same. He also submitted that, the Division Bench of this Court in M.F.A.No.11710/2005 and connected matter dated 9.3.2011 in identical circumstances, considering the filing of the charge sheet has held that, mere filing of charge sheet for an offence under the Motor Vehicles Act by itself would not be a ground to come to the conclusion that the driver had no licence and has held that the insurer is liable to pay the compensation. 9. The only question that arises for consideration in this appeal and cross-objection is: Whether the insurer is liable to pay the compensation to the claimant first and recover the same from the owner in case of invalid or ineffective licence? 10. As far as claimant is concerned, he is a third party. 9. The only question that arises for consideration in this appeal and cross-objection is: Whether the insurer is liable to pay the compensation to the claimant first and recover the same from the owner in case of invalid or ineffective licence? 10. As far as claimant is concerned, he is a third party. Claimant is required to prove the accident, the injury or death occurred in the said accident, actionable negligence against the driver of the offending vehicle and if the vehicle is covered with the policy, the recovery of compensation from the insurer. As far as claimant in this case is concerned, he has proved the accident, involvement of the vehicle and has also proved the injury sustained in the accident. Further he has not also proved the actionable negligence against the driver of the offending vehicle. If the insurer wants to escape the liability on the ground that the driver of the offending vehicle had no licence, it is for the insurer to produce such material before the Court and prove the same. The insurer should have examined the driver or the owner of the vehicle or call upon the owner of the vehicle by issuing necessary notice to produce the licence and produce the same. Admittedly, in this case, no such material has been produced to show that, the insurer had called upon the owner of the vehicle to produce copy of the licence, nor the driver of the offending vehicle was examined. Mere production of charge sheet by itself does not absolve the insurer from proving that the driver of the offending vehicle had no licence. Division Bench of this Court in identical circumstances has observed thus: “10. Insofar as the contention of Mr.Srishaila, learned counsel appearing for the insurer, regarding liability as well as the contention regarding pay and recover are concerned, we are of the view that the insurer has failed to prove that the rider of the vehicle did not possess a valid driving licence. Apparently, mere filing of charge sheet for the offence punishable under Motor Vehicles Act by itself would not be a ground for us to come to the conclusion that rider of the vehicle did not possess a valid driving licence. Indeed, the insurer has not made available any records before us to conclude that the owner-rider has been convicted for the same offence. Indeed, the insurer has not made available any records before us to conclude that the owner-rider has been convicted for the same offence. It is no doubt true that a notice has been issued by the insurer to the owner and copy of the notice has been produced. But what is significant is that the notice of this nature is required to be served on the owner-driver of the vehicle. Indeed the insurer has not produced the acknowledgement for having served the said notice on the owner calling upon him to produce the driving licence. In the absence of acknowledgement, we cannot hold that the notice has been served on the owner rider. Hence, we are of the view that the finding recorded by the learned Member of the Tribunal that the insurer is liable to indemnify the insured cannot be faulted.” 11. The Apex Court in the judgment of Swaran Singh’s case (supra), as regard to the dispute of licence, at para- 110 on consideration of the statutory defence available to the insurer under Section 149 sub-section (ii) has been thus: “110. The summary of our findings to the various issues as raised in these petitions is as follows: (i) . . . . (ii) . . . . (iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere obsence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle: the burden of proof wherefor would be on them.” 12. (iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle: the burden of proof wherefor would be on them.” 12. The Apex Court in Swaran Singh’s case (supra) has observed that, mere absence, fake or invalid driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. If the defence of absence, invalid licence or ineffective licence is not available to the insurer, the insurer cannot escape the liability, however, this position was clarified subsequently that the defence as regard to the licence is also one of the statutory defences available under Section 149 sub-section (2) of M.V.Act. In my opinion, though such defence could be available to the insurer, mere pleading of such defence in the proceedings is not enough, unless the insurer proves the same with material evidence, it cannot absolve itself from the liability. The judgment in Swaran Singh’s case is later on followed by the Apex Court in a judgment reported in 2011 ACJ 926 in the matter of Kusum Lata and others –vs-Satbir and others wherein the Apex Court has observed at para-13 as under: “13. In respect of the dispute about licence, the Tribunal has held and, in our view rightly, that the insurance company has to pay and then may recover it from the owner of the vehicle. This court is affirming that direction in view of the principles laid down by a three. Judge Bench of this court in the case of National Insurance Co.Ltd. v. Swaran Singh, 2004 ACJ 1 (SC).” 13. In view of the findings of the Tribunal that the insurer has not proved the case that the driver of the offending vehicle had no licence merely the absence of the endorsement of transport on the licence that by itself is not a ground to deny the claim of the claimant. May be, that is a dispute between the owner and the insurer. It is also not in dispute that the driver of the offending vehicle had the licence to drive the light motor vehicle. May be, that is a dispute between the owner and the insurer. It is also not in dispute that the driver of the offending vehicle had the licence to drive the light motor vehicle. There is no dispute as regard to the class of vehicle involved in the accident, the skill of driver to drive light motor vehicle cannot be disputed, but endorsement of transport limits the period of validity of the licence to three years whereas, non-transport extends upto 20 years. In view of the failure on the part of the insurer to prove as regard to the invalid or no licence of the driver of the offending vehicle, the Tribunal has rightly held that the insurer to pay the compensation to the claimant and recover the same from the owner. I do not find there is any error committed by the Tribunal in issuing such direction. 14. As far as enhancement of compensation is concerned claimant has suffered fracture of both bones of right leg with partial tear of T.A. No doubt, the injury is grievous in nature. The Doctor, who has been examined as PW-1, has stated that there is 10% disability. The Tribunal has taken 10% disability and has calculated the loss of future income. It has awarded the said compensation on the head of loss of amenities. As far as future loss of income is concerned, same has been rightly determined, however, towards pain and suffering, loss of amenities, incidental expenditure, in my opinion, the compensation requires reasonable enhancement. Accordingly, claimant is entitled for additional compensation of Rs.30,000/- over and above the compensation awarded by the Tribunal with interest. In the result, M.F.A.No.3082/2010 is dismissed. Cross Objection No.99/2010 is partly allowed. The compensation is enhanced by Rs.30,000/- with interest. The amount in deposit be transferred to the Tribunal.