JUDGMENT Hon’ble Pankaj Naqvi, J.—The New India Assurance Co. Ltd. has preferred this appeal against the judgment and award dated 13.8.2002 in M.A.C.P. No. 52 of 2000, Ram Mohan Dixit v. Dharmendra Singh and others) passed by the Motor Accident Claims Tribunal/Additional District Judge, Auraiya. 2. A claim petition was filed alleging that while the claimant was seated in the tractor bearing registration No. UP 70 A 4076 and was on his way from his village to Auriaya, then at around 1 p.m. at Etawah Kanpur Mughal road near Annapoorna Hotel, a truck with registration No. UP 70 80/4 645 coming from Auriaya, being rashly and negligently driven, hit the tractor in which the claimant was seated; the tractor over turned and the claimant sustained grievous injuries i.e. a fracture in his right leg. The claimant alleged medical expenses to the tune of Rs. 70,000/- were incurred and as he used to earn Rs. 3,000/- per month, his earning capacity after the injury was reduced to nil and accordingly, he prayed for compensation of Rs. 10,25,000/-. 3. The case proceeded ex parte against defendant Nos. 2 and 3/respondent Nos. 2 and 3 herein i.e. the owners of the offending truck. The insurance company contested the claim petition and denied the factum of accident. It alleged that both the vehicles were being run contrary to the terms and conditions of the policy and, therefore, it was not liable to indemnify; the compensation claimed is exorbitant and has no rationale basis. 4. The Tribunal on issues Nos. 1 and 2 pertaining to reckless and negligent driving of the truck in question and on contributory negligence found that the offending truck hit the tractor on the reverse side, overturning the tractor resulting in the injuries to the claimant, who was seated in the tractor, butcontributory negligence involving the jeep was not found to be proved. 5. On issues Nos. 3 and 4 the Claims Tribunal held that the truck was insured with the appellant for unlimited liability, but as the insurance company did not lead any evidence to prove that the driver of the truck did not possess a valid and effective driving licence, at the time of the accident, therefore, the insurance company cannot be relieved of its the liability. On the issue of compensation, the Tribunal observed that as per the evidence on record (disability certificate) the claimant had sustained 45% disability in half portion of the body as a result of which he could not work as a labourer in the fields. The Tribunal held his monthly income at Rs. 3000/- i.e. annual income at Rs. 36,000/- and the claimant/respondent being 22 years of age adopted a multiplier of 17 for arriving at a compensation of Rs. 6,12,000/- and thereafter, deducted an amount to the extent of 45% arrived at a sum of Rs. 2,75,000/-. It further awarded Rs. 40,000/- as medical expenses and a sum of Rs. 15,000/- towards damages/trauma/pain and sufferings, net amounting to Rs. 3,30,400/- alongwith 8.5%, interest from the date of application. 6. Shri S.K. Mehrotra, learned counsel for the appellant raised three submissions. Firstly, he submitted that the findings of the Claims Tribunal that the driver of the truck held a valid and effective driving licence at the time of accident is not supported by any evidence on record and relied upon a Division Bench of this Court in National Isurance Co. Ltd. v. Brij Pal Singh and another, 2003 (3) TAC 849, in support of his contention. Secondly, there was no material to infer that the claimant had an income of Rs. 3,000/- per month. Finally, he submitted that the disability loss percentage cannot be treated as loss of earning capacity, and placed reliance upon a decision of the Apex Court in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343 . 7. The Apex Court in National Insurance Co. 3,000/- per month. Finally, he submitted that the disability loss percentage cannot be treated as loss of earning capacity, and placed reliance upon a decision of the Apex Court in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343 . 7. The Apex Court in National Insurance Co. Ltd. v. Swarn Singh and others, (2004) 3 SCC 297 , had an occasion to examine the defences of the insurance company under Section 149 (2) (a) (ii) of the Motor Vehicle Act, 1988 (for short ‘ the Act’) vis-a-vis the following situations i.e. (a) the driving licence produced by the driver or the owner of the vehicle was a fake one; (b) the driver did not have any licence whatsoever; (c) a licence, although granted to the driver concern, but on expiry thereof the same had not been renewed; (d) licence granted to the driver was for one class of description of vehicle, but the vehicle involved in the accident was of different class or description; and (e) the vehicle in question was driven by a person having a learner licence. 8. The Court, after a comprehensive review of the previous judgments, culled out its summary/findings in paragraph 110 of the judgment, which is quoted below: “110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish ‘breach’ on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (v) The Court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (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. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner’s licence, the insurance companies would be liable to satisfy the decree. (viii) If a vehicle at the time of accident was driven by a person having a learner’s licence, the insurance companies would be liable to satisfy the decree. (ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular Court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” 9. A perusal of the aforesaid summary would reveal that mere absence of 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 and that 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 complying with the condition of the policy regarding use of vehicles by a duly licensed driver. Similarly, where the insurer is able to prove breach on the part of the insured on a condition of policy of holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer cannot not be absolved of his liability towards insured unless the said breach on the condition of driving licence is so fundamental, as are found to have contributed to the cause of the accident. 10. We have gone through the Division Bench judgment of this Court in National Isurance Co. Ltd. v. Brij Pal Singh and another (supra) rendered prior to the case of National Insurance Co. Ltd. v. Swarn Singh and others (supra) and are of the view that the case is squarely covered by the decision of the Apex Court in National Insurance Co. Ltd. v. Swarn Singh and others (supra). 11. Ltd. v. Brij Pal Singh and another (supra) rendered prior to the case of National Insurance Co. Ltd. v. Swarn Singh and others (supra) and are of the view that the case is squarely covered by the decision of the Apex Court in National Insurance Co. Ltd. v. Swarn Singh and others (supra). 11. The legal position, which emerges from the aforesaid decision, is that the burden to plead and prove the breach of condition of policy is on the insurer. 12. On the facts of the present case, the Court finds that although an application dated 31.7.2002 (paper No. 33-d) was filed for summoning the owner and the driver of the truck and the Tribunal vide its order dated 31.7.2002 observed that although the case was proceeding ex parte against the owner of the truck, however, if the insurance company desires to summon the driver of the offending truck to verify his driving licence, then the driver can be summoned through Dasti Summons at the risk and expense of the insurance company. There is nothing on record to indicate that pursuant to the order dated 31.7.2002 the insurance company ever took out any Dasti Summons for ensuring the attendance of the driver for the verification of his driving licence. Thus, this Court is of the view that the insurance company failed to discharge its burden to prove the breach of condition of policy i.e. the absence of a valid and effective driving licence. 13. The Court further finds that the findings recorded by the Claims Tribunal that the injured had a monthly income of Rs. 3000/- per month (Rs. 36,000/- per annum) is based on the statement of the claimant and that adoption of a multiplier of 17, when the claimant was aged 25 years, cannot be said to be unreasonable or arbitrary. The evidence of the claimant/respondent on the quantum of his income remained uncontroverted. 14. The Claims Tribunal held that the disability loss percentage is equal to percentage loss of earning capacity primarily on the ground that it had come on record that the claimant-respondent had suffered the disability to the extent of 45% and he could not carry out agriculture operations in the fields, as a device had been inserted in his leg because of which he was unable to walk without crutches. 15. 15. No doubt the Apex Court in the case of Raj Kumar v. Ajay Kumar and another (supra) has held that the Tribunal should not mechanically apply the percentage of permanent disability as the percentage of loss earning capacity, but on the facts of the present case it was established that on account of nature and extent of disability, the claimant cannot carry on the work of a labourer in the fields. On this evidence, the Court is not inclined to take a different view than the one taken by the Tribunal. 16. We are of the considered view that the findings, on all issues, are based on proper appraisal of evidence and we find no perversity in the approach of the Tribunal or the amount of compensation grossly exorbitant. 17. No other plea is pressed. 18. The appeal fails and is dismissed with costs. ——————