JUDGMENT 1. - Disputing its liability to make payment of the amount of compensation as awarded by the learned Tribunal on the ground that admittedly the driver of the offending vehicle was not having a valid and effective driving licence at the time of the accident, the appellant-Insurance Company has filed this Civil Misc. Appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter to be referred as "the Act") against the judgment and award dated 12.8.1997 passed by the Motor Accident Claims Tribunal (District Judge) Kota in Motor Accident Claim Case No. 275/1993. The learned Tribunal has awarded Rs. 75,000/- alongwith interest @ 12% per annum as compensation to the respondent-claimants on account of death of Shri Jagdish, aged eight years, who was son of the claimants. 2. Brief relevant facts for the disposal of this appeal are that the claimant-respondents No. 1 and 2, who are parents of deceased-Shri Jagdish, filed a claim petition under Section 166 of the Act on 24.2.1993 before the learned Tribunal with the averment that on 14.12.1992 at about 11.00 a.m. when deceased-Shri Jagdish alongwith his mother (the claimant-respondent-Smt. Janki Bai) was going on foot, a vehicle Jeep bearing registration No. Rs.- 5651 being driven by its driver with negligence and rashness hit the deceased resulting fatal injuries to him. The respondent-claimants claimed Rs. 2,69,500/- as compensation. The appellant-Insurance Company filed written statement and apart from others, pleaded that at the time of the said accident the driver of the vehicle involved in the accident was not having a valid and effective driving licence and, therefore, the Insurance Company is not liable to pay the compensation. It was further pleaded that the owner insured of the vehicle involved in the accident violated the terms and conditions of the insurance policy issued in his favour as he allowed the vehicle to be driven by a person having no valid and effective driving license. 3. On the basis of pleadings of the parties, necessary issues were framed and for the purpose of disposal of this appeal, issue No. 4 is relevant which is as below:- " D;k foi{kh chek dEiuh ds fyf[kr dFku dh izkjfEHkd@fo'ks"k dFku dh vkifRr;ka lkFkZd gSa] gka rks budk izHkko D;k gksxkA " 4. The parties produced oral as well as documentary evidence in support of their respective case. The parties produced oral as well as documentary evidence in support of their respective case. The learned Tribunal considered the Issue No. 4 in detail and ultimately came to a conclusion that the appellant-Insurance Company cannot disown his liability to make payment of the amount to be awarded as compensation only by the reason that at the time of the accident the driver was not having a valid and effective driving license. For coming to the aforesaid conclusion learned Tribunal took into consideration several decisions of Hon'ble Supreme Court as well as various High Courts. 5. Assailing the finding of the learned Tribunal, the counsel for the appellant-Insurance Company raised the following grounds: (i) It is an admitted fact that at the time of the aforesaid accident the driver was not having a valid and effective driving license to drive any type of vehicle and this fact has also been found to be proved by the learned Tribunal itself. It has also come on record that a learning driving license was issued in favour of the driver for a period of six months, but that period expired well before the accident took place and thereafter neither a fresh learning license nor permanent license of any type was issued in his favour. (ii) It was the duty of the insured owner of the vehicle involved in the accident to appear as a witness before the Tribunal and to show that he took every possible step that his vehicle is driven by a duly licenced person only, but at the time of the accident the driver was driving the vehicle without his knowledge and there was no breach of any term and condition of the insurance policy on his part. In absence of the same, adverse inference should have been drawn against the owner insured of the vehicle and it should have been held by the learned Tribunal that the owner deliberately and knowingly allowed the vehicle to be driven by a person having no valid and effective driving license, but the learned Tribunal did not consider this aspect of the matter in a proper perspective and fastened liability on the appellant-Insurance Company only by the reason that a third party has died as a result of the accident. (iii) As in the present case the driver of the offending vehicle was having no valid and effective driving license to drive any type of vehicle and, therefore, there was fundamental breach of the terms and conditions of the insurance policy by the owner insured, order for payment of compensation to the claimants and recovery of the same from the owner insured and the driver can also not be passed. 6. In support of his submissions, learned counsel for the appellant relied upon the cases of New India Assurance Co. Ltd. v. Kusum & Ors. reported in II (2010) ACC 518 (SC) , National Insurance Co. Ltd. v. Kaushalya Devi & Ors. reported in 2008 ACJ 2144 , United India Insurance Co. Ltd. v. Gian Chand & Ors. reported in 1998 (1) TAC 36 (SC) and the order dated 14.8.1998 passed by a Single Bench of Raj. High Court in the case of The Oriental Insurance Co. Ltd. & Ors. v. Smt. Bhago Bai & Ors. (S.B. Civil Misc. Appeal No. 422/90) . 7. I have considered the submissions made on behalf of the appellant, perused the material available on record as well as the relevant legal provisions and the case law including that relied upon on behalf of the appellant. In this appeal following two issues are involved to be decided by this Court:- (i) Whether in a case in which a vehicle is being driven by a person not holding a valid and effective driving license, the liability to pay the amount of compensation can be fastened on the Insurance Company? (ii) If the Court comes to a conclusion that the appellant-Insurance Company cannot be held to make payment of the amount of compensation, whether a further order can be passed to the effect that the Insurance Company first make payment to the claimants and recover the same from the owner/driver of the vehicle following the procedure prescribed by law? 8. In the present case, this fact is not in dispute that at the time of the said accident the driver of the offending vehicle was not having a valid and effective driving license to drive any type of vehicle i.e. it is a case of "no licence" at the time of the accident. 8. In the present case, this fact is not in dispute that at the time of the said accident the driver of the offending vehicle was not having a valid and effective driving license to drive any type of vehicle i.e. it is a case of "no licence" at the time of the accident. On the basis of evidence available on record learned Tribunal has also come to a definite conclusion that the driver of the vehicle was not having valid and effective driving license. 9. The first issue involved in the present case has been considered in detail by a Bench of three Hon'ble Judges of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh & Ors. reported in (2004) 3 SCC 297 . In para. 84 it has been held by the Hon'ble Court as below:- "We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, admittedly, did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not have any hand in it at all, e.g. a case where an accident takes place owing to a mechanical fault or vis-major." 10. It was thus held by Hon'ble Court that the owner of a motor vehicle has a responsibility to see that no vehicle is driven except by a person who does satisfy the provisions of Section 3 or 4 of the Act. It was thus held by Hon'ble Court that the owner of a motor vehicle has a responsibility to see that no vehicle is driven except by a person who does satisfy the provisions of Section 3 or 4 of the Act. It was further held that in a case in which admittedly the driver of the vehicle did not hold any license and the same was allowed consciously to be driven by the owner of the vehicle by such person the insurer is entitled to succeed in its defence and avoid liability. 11. Hon'ble Court in the aforesaid case summarised the legal position in para. 110 which is as below:- "The summary of our findings to the various issues as raised in these petitions is 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) An insurer is entitled to raise a defence in a claim petition filed under Section 163A 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 the 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 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 duly licensed driver or one who was not disqualified to drive at the relevant time. 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 duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) 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 wherefore 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 fulfill 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. (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. 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 the 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 the 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 the insurer against the 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." 12. It is thus held by the Hon'ble Court that mere absence of driving license for driving at the relevant time is not in itself defence available to the insurer against their 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 duly licensed driver or one who was not disqualified to drive at the relevant time. It was further held that the Court cannot be laid down any criteria as to how the said burden would be discharged, in as much as the same would depend upon the facts and circumstance of each case. It was also held that even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding on a valid license by the driver or his qualification to drive during the relevant time, the insurer would not be allowed to avoid its liability towards the 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. 13. In para seven of the case of New India Assurance Co. Ltd. v. Kusum & Ors. 13. In para seven of the case of New India Assurance Co. Ltd. v. Kusum & Ors. (supra) Hon'ble Supreme Court has held as below:- "An owner of a vehicle in terms of the provisions of the Motor Vehicles Act is legally obligated to get the vehicle insured. The rights and liabilities of the parties to the contract of insurance would be governed thereby subject to the provisions of the Motor Vehicles Act. One of the conditions which would make the insurance company liable to reimburse the owner of the vehicle in respect of payment of the amount of compensation in favour of a claimant is that the driver of the vehicle must possess a valid driving licence. The owner has a duty to see that a vehicle is driven by a person having a valid driving licence. The licence of the driver of the said bus was proved to be invalid. The owner did not raise any contention that he has used due diligence in allowing the driver to drive the vehicle." 14. In the case of National Insurance Co. Ltd. v. Kaushalya Devi & Ors. (supra), in a case in which a goods vehicle was involved in the accident and the same was being driven by a person not having a valid and effective driving license to drive such a vehicle, Hon'ble Supreme Court held that if the owner of the vehicle did not step into the witness-box to state anything, the High Court was justified in holding that insurance company is not liable to make payment and the owner alone is liable to make payment of the amount of compensation. 15. In the case of United India Insurance Co. Ltd. v. Gian Chand & Ors. (supra), it was found as a fact that the insured handed over the vehicle for being driven by a unlicensed driver and taking into consideration the proved facts Hon'ble Supreme Court exonerated the insurance company from its liability to meet the claim of the third party to pay compensation. 16. Ltd. v. Gian Chand & Ors. (supra), it was found as a fact that the insured handed over the vehicle for being driven by a unlicensed driver and taking into consideration the proved facts Hon'ble Supreme Court exonerated the insurance company from its liability to meet the claim of the third party to pay compensation. 16. The well settled legal position emerging out from the aforesaid decisions of Hon'ble Supreme Court is that mere absence of a valid and effective driving license although itself not a valid defence exonerating the insurance company to make payment of compensation in favour of a third party and burden is upon it to prove that the owner of the vehicle consciously allowed the driver to drive its vehicle, but at the same time it is also duty of the owner of the vehicle to appear as a witness before the Tribunal or the Court and to clarify his stand in what circumstances his vehicle was driven by a person having no valid and effective driving license. The legal position is also that no definite criteria can be laid down by the Court as to the manner in which the burden caste upon the insurance company is to be discharged and the same would depend upon the facts and circumstances of each case. 17. In the light of the aforesaid well settled legal position, if the facts of the present case are considered, I am of the view that the learned Tribunal has wrongly fastened liability to make payment of the compensation on the appellant-Insurance Company. As already said, it is an admitted position that the driver of the offending vehicle at the time of the accident was having no valid and effective driving license to drive any type of the vehicle. It is also on record that although a learning license was issued in his favour for a period of six months, but the same expired well before the accident took place. 18. In the present case, although, reply to the claim petition was jointly filed by the driver and owner of the vehicle, but it was not explained by the owner of the vehicle in what circumstances the offending vehicle was being driven by a person having no valid and effective driving license. 18. In the present case, although, reply to the claim petition was jointly filed by the driver and owner of the vehicle, but it was not explained by the owner of the vehicle in what circumstances the offending vehicle was being driven by a person having no valid and effective driving license. The only stand taken by him was that at the relevant time the vehicle was insured with the appellant and, therefore, the appellant is liable to make payment of the amount of compensation, if any, to be awarded in favour of the claimants. It is also relevant to note that neither the owner nor driver appeared as witness explaining the circumstances in which the offending vehicle was being driven by a person having no valid and effective driving license. In absence of any explanation on the part of the owner insured, it must be held that he consciously allowed a person to drive his vehicle having no valid and effective licence. 19. The net result of the aforesaid discussion is that in the facts and circumstances of the case the appellant-Insurance Company was not liable to make payment of the compensation and the learned Tribunal has wrongly fastened liability upon it. 20. The second issue involved in the present case has also been considered in some detail by Hon'ble Supreme Court in the aforesaid case of National Insurance Co. Ltd. v. Swaran Singh & Ors. (sura). 20. The second issue involved in the present case has also been considered in some detail by Hon'ble Supreme Court in the aforesaid case of National Insurance Co. Ltd. v. Swaran Singh & Ors. (sura). Although, it was held by Hon'ble Court that even if it is found that the insurance company is not liable to make payment of the compensation even then the liability of the insurance company to satisfy the decree at the first instance and to cover the awarded amount from the owner and driver thereof is well settled, but at the same time it was further held by the Hon'ble Court that the Tribunal and the Court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a beach of contract of insurance, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Section 165 and 168 of the Act. From the aforesaid observations of Hon'ble Supreme Court, the legal position emerging out is that the Tribunal or the Court is not bound in each and every case to issue direction to the insurance company to first make payment to the victim and then to realise from the owner or driver of the vehicle and it would depend upon the facts and circumstances of each case whether such a direction is to be made or not. 21. If in the light of the aforesaid legal position facts and circumstances of the present case are considered, I am of the definite view that no such direction could be made to the appellant-Insurance Company to first pay the claimants and thereafter realise the same from the respondent owner and driver of the vehicle. 22. As already said although joint reply to the claim petition was filed on behalf of the owner and driver of the offending vehicle, but no pain was taken by them to explain the circumstances in which the vehicle was being driven by a person having no valid and effective driving license. 22. As already said although joint reply to the claim petition was filed on behalf of the owner and driver of the offending vehicle, but no pain was taken by them to explain the circumstances in which the vehicle was being driven by a person having no valid and effective driving license. Even none of them appeared before the Tribunal as witness to explain the same. In such circumstances it would be travesty of justice if the appellant-Insurance Company is directed to pay the amount and to recover the same from the owner and driver of the vehicle as it would face immense difficulties to recover the same by filing a execution petition after such a long period. 23. Consequently, by setting aside the judgment and award dated 12.08.1997 passed by the Motor Accident Claims Tribunal, Kota in Motor Accident Claim Case No. 275/1993, the appeal filed by the appellant-Insurance Company is allowed, but without any order as to costs. The respondent-claimants are free to recover the amount-of compensation from the owner and driver of the vehicle involved in the accident in accordance with the procedure prescribed by law. However, it is further made clear that the amount already paid by the appellant-Insurance Company under Section 140 of the Act would not be liable to be refunded to it by the claimants, but the appellant may recover the same from the owner/driver of the vehicle. Any amount deposited by the appellant-Insurance Company in the learned Tribunal in pursuance of the interim stay order dated 27.1.1997 by this Court shall be refunded by the Tribunal to the appellant-Insurance Company alongwith interest, if any, accruing thereon.Appeal allowed. *******