ORDER 1. This order shall also govern the disposal of MA No. 3865/09 as in both the appeals, the award under challenge is dated 30.9.2009 passed by MACT, Sardarpur in claim case No. 83/08 whereby the claim petition filed by the appellant was allowed and compensation of Rs. 2,29,880/- was awarded on account of injuries sustained by the appellant. 2. In MA No. 154/2010 which is the appeal filed by the claimant/appellant, prayer is for enhancement of the amount while in MA No. 3865/09 which is the appeal filed by the respondent No. 3/Insurance Company, prayer is for setting aside of the award as respondent No. 3 has wrongly been held liable for payment of compensation. 3. Short facts of the case are that appellant filed a claim petition under section 163A of the Motor Vehicles Act alleging that on 3.2.2008, when the appellant was driving the tempo bearing registration No. MP11 K 0116, the break failed, with the result appellant sustained injuries in right hand and leg. It was alleged that offending vehicle was owned by respondents No. 1 and 2 and insured with respondent No. 3. It was alleged that claim petition be allowed and compensation be awarded. The claim petition was contested by the respondent No. 3 on various grounds including on the ground that since the appellant was not possessing the valid driving licence, therefore, Insurance Company is not liable. It was prayed that claim petition be dismissed. After framing of issues and recording of evidence learned Tribunal allowed the claim petition and awarded a sum of Rs. 2,29,880/-, break-up of which is an under:- towards permanent disability Rs. 1,61,280/- towards medical expenses Rs. 68,600/- 4. Learned counsel submits that learned Tribunal assessed the income @ Rs. 3,000/- per month and after deducting 1/3rd towards personal expenses, assessed the permanent disability as 42% and after applying the multiplier of 16, calculated the amount of permanent disability. Learned counsel submits that right hand of the appellant is amputated from the shoulder and as per medical evidence adduced, permanent disability was 85% in the hand and 32% in leg which was wrongly assessed by the learned Tribunal as 42%. It is submitted that appellant was hospitalised from the date of accident till 11.3.2008. It is submitted that no amount has been awarded in other conventional heads. Similarly, learned Tribunal also committed error in assessing the income @ Rs. It is submitted that appellant was hospitalised from the date of accident till 11.3.2008. It is submitted that no amount has been awarded in other conventional heads. Similarly, learned Tribunal also committed error in assessing the income @ Rs. 3,000/- per month. So far as liability is concerned, learned counsel submits that appellant was possessing the valid driving licence which is Ex. P/141. In alternate, it is submitted that even if it is assumed that offending vehicle was the transport vehicle and appellant was possessing the licence of LMV, then too appellant is entitled. For this contention, reliance is placed on a decision in the matter of Jitendra Kumar v. Oriental Insurance Company Ltd., 2003 (II) MPWN 140 (SC) = 2003 (III) ACJ 1441 wherein van caught fire due to mechanical reasons and was damaged, Insurance Company repudiated the claim on the ground that driver was not holding a valid driving licence, the Hon. apex Court held that incident occurred due to no fault of the driver, therefore, Insurance Company cannot repudiate the claim for damages on the ground the driver of the vehicle had no valid licence. Further reliance is placed on a decision in the matter of Kaushnuma Begum v. New India Assurance Co. Ltd., 2001 ACJ 428 wherein front tyre of jeep burst while in motion, vehicle became unbalanced and turned turtle, crushing to death a person walking on the road, the Tribunal held that there was neither rashness nor negligence in driving the vehicle, the Hon. apex Court held that owner of the vehicle is liable for damages to a person who suffered on account of accident even if there is no negligence on the part of the driver or owner. Lastly reliance is placed on a decision in the matter of National Insurance Company v. Swarn Singh, 2005 (1) JLJ 85 = 2004 ACJ 1. It is submitted that appeal be allowed and amount be enhanced. 5. Learned counsel for respondent No. 3 submits that since the appellant was possessing the driving licence of LMV and was driving the goods vehicle having no endorsement to drive the transport vehicle, therefore as per sections 3 and 10 of the Motor Vehicles Act, learned Tribunal committed error in hoding the respondent No. 3 liable for compensation. 5. Learned counsel for respondent No. 3 submits that since the appellant was possessing the driving licence of LMV and was driving the goods vehicle having no endorsement to drive the transport vehicle, therefore as per sections 3 and 10 of the Motor Vehicles Act, learned Tribunal committed error in hoding the respondent No. 3 liable for compensation. It is submitted that case laws submitted by the appellant is not applicable in the persent case as cause of accident was incompetency on the part of appellant himself. Learned counsel placed reliance on a decision in the matter of Oriental Insurance Co. Ltd. v. Angad Kol, 2009 (1) JLJ 313 = 2009 ACJ 1411 (SC), wherein the driver had licence to drive ‘LMV’ whereas he was driving a goods transport vehicle, the Hon. apex Court had occasion to distinguish between LMV and transport vehicle, it was observed that “definition of LMV brings within its umbrage both ‘transport vehicle’ or ‘omnibus, but a distinction between an effective licence granted for transport vehicle and passenger motor vehicle exists, the distinction between a ‘LMV’ and a ‘transport’ vehicle’ is evident and it was held that insurance company shall pay the compensation to claimants with a right to recover the amount from owner and driver of the vehicle.” Learned counsel further placed reliance on a decision in the matter of New India Assurance Company v. Prabhulal, 2008 ACJ 627 wherein truck damaged in accident and Insurance Company repudiated the claim on the ground that person who was driving the vehicle had no valid licence, Hon’ble apex Court held that District Consumer Forum was justified in holding that driver who had licence to drive light motor vehicle without any endorsement entitling him to drive transport vehicle was not authorised to drive the truck which is a goods vehicle and insurance company is not liable. Learned counsel further submits that since the claim petition is filed under section 163A of the Motor Vehicles Act and the appellant himself was negligent, therefore, appellant cannot be rewarded by compensation on account of his own negligence. Learned counsel further submits that there is no mechanical report on record to demonstrate that accident occurred because of sudden failure of break which was beyond control of the appellant. So far as amount is concerned, learned counsel submits that amount awarded is just and proper which requires no interference. Learned counsel further submits that there is no mechanical report on record to demonstrate that accident occurred because of sudden failure of break which was beyond control of the appellant. So far as amount is concerned, learned counsel submits that amount awarded is just and proper which requires no interference. It is submitted that appeal filed by the appellant/claimant be dismissed and appeal filed by respondent No. 3 be allowed and findings whereby respondent No. 3 has been held liable be quashed. 6. From perusal of record it appears that appellant has admitted that his income was Rs. 3,000/- per month, therefore learned Tribunal committed no error in taking the same as Rs. 3,000/- per month. So far as permanent disability is concerned, appellant is present in Court to demonstrate the permanent disability. His right hand has been amputated from the shoulder. As per schedule-1, part-II of Workmen’s Compensation Act, in case of amputation through shoulder joint, the percentage of loss of earning capacity is 90% while amputation below shoulder with stump less than (20.32 cms.) from tip of acromion, the loss of earning capacity is 80% keeping in view the aforesaid position, there was no justification on the part of learned Tribunal in assessing the permanant disability as 42% and the same is assessed as 80%. So far as deduction of 1/3rd towards personal expenses is concerned, there was no justification on that part as it is not a death case. Accordingly, appellant is entitled for the following amount:- towards permanent disability Rs. 4,75,000/- towards medical expenses Rs. 70,880/- towards transport exp. and spl. diet Rs. 10,000/- towards exp. incurred on attenders Rs. 5,000/- towards loss of income Rs. 10,000/- towards pain and sufferings Rs. 10,000/- Total Rs. 5,80,880/- 7. In the appeal filed by respondent No. 3, vide order dated 28.6.2010, the operation of the award was stayed subject to depositing 50% of the awarded amount which has been deposited by the respondent No. 3 and has been withdrawn by the appellant. 8. So far as liability of respondent No. 3 is concerned, the accident took place on 3.2.2008. Appellant was brought to Manav Sewa Trust. Intimation was given to police by the Trust and on that basis case was registered in Rojanmacha at Aam Choki, Rajgarh, for which document is Ex. P/142, spot map was also prepared of which document is Ex. P/143. Appellant was brought to Manav Sewa Trust. Intimation was given to police by the Trust and on that basis case was registered in Rojanmacha at Aam Choki, Rajgarh, for which document is Ex. P/142, spot map was also prepared of which document is Ex. P/143. Accident inspection report of the vehicle is Ex. P/44 and the statement of appellant recorded by the police under section 161 CrPC on 14.2.2008 is Ex. P/145 in which appellant has stated that all of a sudden cow and bullock came in front of the offending vehicle and when the appellant applied to the brake it was failed. Same story is repeated by the appellant in his affidavit submitted under Order XVIII Rule 4 CPC. The cross examination on behalf of insurance company is that appellant did not try to stop when the animals came in front of the offending vehicle. Vehicle inspection report, Ex. P/144 is proved by ASI, AW-3. In cross-examination it has come that Ex. P/144 does not bear the crime number and also the date of inspection. Suggestion is given that forged report has been obtained, but inspite of his statemet to the effect that report was prepared by Arif Sheikh, no effort was made by the Insurance Company either to examine Arif Sheikh or get it investigated by the investigatior that in what circumstances report of ExP/144 was prepared. It is true that claimant cannot be rewarded in a claim petition filed under section 163A of the Motor Vehicles Act on account of his own fault. It is also true that negligence of the appellant can be proved by the insurance Company by adducing evidence by cross examination on the evidence adduced by the appellant. In the present case no evidence has been adduced by the respondent No. 2. In cross examination there is nothing on the basis of which it can be said that accident occurred because of negligence of appellant. Undisputedly the offending vehicle was light motor vehicle and was carrying no luggage/goods at the relevant time, the only fault on the part of appellant was that the licence which the appellant was holding was having no endorsement to drive transport vehicle. Matter of Prabhulal (supra) is not applicable in the present case as in that case the drive was possessing licence of light motor vehicle and was driver a truck. Matter of Prabhulal (supra) is not applicable in the present case as in that case the drive was possessing licence of light motor vehicle and was driver a truck. Law laid down in the matter of Jitendra v. OIC. 2003 (II) MPWN 140 (SC) = 2003(III) ACJ 1441 was taken into consideration in the matter of Prabhulal (supra) but was not disapproved. Since to avoid its 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 vehicle by duly licenced driver. The license of the appellant is on record as Ex. P/141 which is for a period of 20 years. The distinction between light motor vehicle and transport vehicle is evident from section 10 of the Act. The transport vehicle may be a light motor vehicle but for the purpose of driving the same a distinct licence is required to be obtained. Distinction between transport vehicle and passenger vehicle can also be noticed from section 14 of the Act. Sub-section (2) of section 14 provides for duration of a periof of 3 years in case of an effective licence to drive a transport vehicle whereas in case of any other licence, it may remain effective for a period of 20 years. In the present case since license was for 20 years therefore, it can safely be said that appellant was having the license of light motor vehicle and not the license to drive the transport vehicle. However, since the cause of accident was sudden failure of brake and the appellant was having the license of same category except the endorsement and the vehicle was empty at the relevant time. In view of this, MA No. 154/10 which is the appeal filed by the appellant/claimant is allowed and the amount is enhanced as indicated above and MA No. 3865/09 which is the appeal filed by the respondent No. 3 is dismissed. The amount which has already been withdrawn shall not be recovered by the respondent No. 3 from the appellant. Respondent No. 3 shall be entitled to withdraw the amount if any which is still lying with the learned Tribunal. The amount which has already been withdrawn shall not be recovered by the respondent No. 3 from the appellant. Respondent No. 3 shall be entitled to withdraw the amount if any which is still lying with the learned Tribunal. If any recovery proceedings are initiated by the respondents No. 3 against respondents No. 1 and 2, then respondents No. 1 and 2 shall be at liberty to demonstrate before the learned Tribunal that respondent No. 1 was possesssing the valid licence to drive transport vehicle. 9. With the aforesaid observations, both the appeals stand disposed of. Copy of this order be kept in the record of connected Appeal.