Oral Judgment: 1. Admit. Notice made returnable forthwith. Heard finally by consent at the time of admission. 2. This appeal is directed against the order dated 15.09.2012 passed by the Presiding Officer, Motor Accident Claims Tribunal, Mapusa in Claim Petition No. 37/2011 thereby directing the owner/driver (appellant), i.e. respondent no. 1 in the said claim petition to pay the compensation of Rs. 25,000/-within a month from the date of the order and in default to pay the same with interest at the rate of 9% per annum; towards no fault liability. The order was passed in an application filed by the original claimant under Section 140 of the Motor Vehicle Act, 1988 (M.V. Act). 3. The accident had taken place on 18.04.2011 when the original claimant had parked his vehicle and was standing near his tempo and at that time, the appellant who was driving his own vehicle ie. the tempo bearing registration no. GA-01-V-6211 took reverse in rash and negligent manner and dashed against the original claimant. The original claimant fell down and the tyre ran over his right leg. He sustained multiple compound fracture to his right leg. The original claimant was taken to the hospital and treated. He suffered permanent disability, hence he filed the claim petition under Section 166 of the M.V. Act for compensation and an application under section 140 of the Act was filed for interim relief. The learned Presiding Officer on this application granted relief of Rs. 25,000/-for no fault liability. While passing the order the learned Presiding Officer discharged the insurance company ie. Respondent no. 2 from its liability and the owner/driver ie. The appellant was directed to pay the entire compensation amount of Rs. 25,000/- within one month. Therefore, this appeal is filed by the appellant/owner/driver of the offending vehicle. 4. In this matter the accident is not disputed, so also, involvement of two vehicles is also admitted. Moreover, on 18.04.2011, the owner of the vehicle who was driving the vehicle was not holding a valid driving licence is also not disputed. The entire appeal was argued on the point based on the law laid down by the Hon'ble Supreme Court and the precedent of the Bombay High Court. The appellant was holding a driving licence bearing no. GA-42921 which was expired on 28.09.2004. Thereafter, new licence was issued on 04.07.2011. The entire appeal was argued on the point based on the law laid down by the Hon'ble Supreme Court and the precedent of the Bombay High Court. The appellant was holding a driving licence bearing no. GA-42921 which was expired on 28.09.2004. Thereafter, new licence was issued on 04.07.2011. Thus, the appellant was not holding a valid licence from 29.09.2004 to 03.07.2011 and accident had taken place in between ie. 18.04.2011. The learned Presiding Officer by taking into account this factual position has held that holding a valid licence is a condition in the policy and as a valid licence was not with the appellant-driver the same condition was breached and violated. Therefore, the insurance company is not liable to pay any amount to the original claimant but, amount of compensation is the entire responsibility of the owner/driver of the vehicle. 5. The learned Counsel for the appellant based his submission on the law laid down by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. vs. Swaran Singh & Ors., reported in AIR 2004 SC 1531 and so also the judgment dated 19th July, 2013 passed by the learned Single Judge of the High Court of Bombay at Goa in the case of National Insurance Co. Ltd. vs. Mrs. Salouni Subhashchandra Nagzarkar in First Appeal No. 28 of 2008. He submitted that the Presiding officer did not consider the law laid down by the Hon'ble Supreme Court in the case of SwaranSingh (supra) and once the licence was obtained by the person and if at all it was not renewed and accident took place interregnum before its renewal then it cannot be said as a fundamental breach of the condition of the driving licence. The insurance company cannot be exonerated from liability to indemnify the insured. He submitted that the Hon'ble Supreme Court in SwaranSingh (supra) has distinguished two terms used in the Motor Vehicle Act, i.e., “Effective licence” u/s. 3/5 of the Act and “Duly licenced” which is used under Section 149(2)(a)(ii) of the Motor Vehicle Act. He argued that even though there is fundamental breach, it is not sufficient to discharge the liability of the insurer, it is necessary for the insurance company to bring on record whether the breach has contributed to the cause of the accident occurred. He argued that even though there is fundamental breach, it is not sufficient to discharge the liability of the insurer, it is necessary for the insurance company to bring on record whether the breach has contributed to the cause of the accident occurred. It was necessary for the learned Single Judge to consider these aspects before fastening the liability of compensation to the owner and discharging the insurance company from such liability. The learned counsel submitted that in the case of SwaranSingh (supra) the issue pertaining to the availability of defence of the insurance company especially under Section 149(2)(ii)(a) of the M.V. Act, 1988 is discussed at length from various angles. He further submitted that summary of findings given by the Hon'ble Supreme Court in the said case is useful to understand how the liability to pay the compensation shall shift either to the insurance company or the owner, in the event of breach of terms and conditions of the policy. He further referred the judgment passed by the learned Single Judge of this Court in National Insurance Co. Ltd. vs. Mrs. Salouni Subhashchandra Nagzarkar (supra). In the said judgment, the learned learned Single Judge has considered the previous cases on the point of breach of condition of not holding valid licence and the effect of the same, while determining the issue of liability of the insurance company. He submitted that in the said case of National Insurance Company though the driver was not having a valid licence when the accident occurred, the learned learned Single Judge has held that the insurance company cannot disown its liability to pay the compensation and the insurance company is entitled to have it reimbursed from the insurer. He submitted that both these judgments were not placed before the learned Presiding Office and therefore, the Presiding Officer has taken a view contrary to law and saddled the entire responsibility of compensation of Rs. 25,000/- to the appellant/owner/driver and did not held insurance company to pay the amount and submits that the said order is to be set aside. 6. The learned Counsel for the insurance company argued vehemently in support of the order of the Tribunal. He submitted that in the case of SwaranSingh (supra), the Hon'ble Supreme Court has not laid down the straight jacket formula in fixing the liability on the insurance company. 6. The learned Counsel for the insurance company argued vehemently in support of the order of the Tribunal. He submitted that in the case of SwaranSingh (supra), the Hon'ble Supreme Court has not laid down the straight jacket formula in fixing the liability on the insurance company. The Hon'ble Supreme Court in the said case has held that each case is to be considered depending on its facts, therefore, in the present case the appellant/owner/driver was not holding a valid licence for the period of six years is required to be considered. He submitted that there is a clear breach of terms and conditions in the policy and the insurance company cannot be held responsible for payment of compensation if accident takes place. He further submitted that in the case of SwaranSingh (supra), the law is discussed upto certain point. However, SwaranSingh (supra) stops short at a particular stage and point not answered, is to what length of period is valid in the case of non-renewal under section 147(2)(a)(ii) of the M.V. Act, Section 15 of the Motor Vehicle Act states about the period of renewal of the licence. In view of Section 15(1) first proviso, if the licence is renewed within 30 days, then licence to be given retrospective effect and renewal of licence thereafter amounts to issuance of fresh licence. He submitted that when SwaranSingh (supra) stops short on this point, we have to rely on the judgment of Hon'ble Supreme Court in the case of Ram Babu Tiwari vs. United India Insurance Company Limited & Ors., reported in (2008) 8 SCC 165 . He also relied on the judgment of Hon'ble Supreme Court in the case of New India Assurance Company Ltd. vs. Suresh Chandra Aggarwal, reported in (2009) 15 SCC 761 . He submitted that in the case of Ram Babu Tiwari (supra), licencewas lapsed on 10.02.1993 and accident had taken place on 21.01.1996 and thereafter the licence was renewed on 07.06.1996, hence, there was a gap of 3 years. Considering this lapse, the Hon'ble Supreme Court has taken a view that it amounted to breach of policy and the insurance company is not liable to pay compensation. Considering this lapse, the Hon'ble Supreme Court has taken a view that it amounted to breach of policy and the insurance company is not liable to pay compensation. While answering to that issue the Hon'ble Supreme Court has taken into account Section 15 where period of 30 days for renewal of licence and a post facto effect for a period of 30 days and thereafter it cannot be considered as renewal and fresh licence is issued. The learned Counsel has further relied on the judgment of High Court, Aurangabad Bench in the case of New India Assurance Company Ltd. vs. Karbhari Hiralal Shinde, reported in 2011 (3) Bom. C.R. 454. The learned Counsel has pointed out that in the said judgment, the learned Single Judge has also considered all the previous cases wherein the law on the point of breach of condition of holding valid licence is discussed. The law laid down in the cases of SwaranSingh (supra), Ram Babu Tiwari (supra), and Suresh Chandra Aggarwal (supra) is considered. In the said case, nearly for a period of 10 years the licence was not renewed and it was held that non-renewal of the licence is not merely a technical aspect and the insurer is liable to indemnify the insured. 7. In reply, the learned Counsel for the appellant has submitted that in the judgment of KarbhariHiralal Shinde (supra) decided by the Aurangabad Bench, the learned Judge has only referred the case of SwaranSingh but not discussed the law laid down in SwaranSingh (supra). 8. After considering the submissions of the learned Counsel for both the side and after going through the case law cited before me I am of the view that law laid down in the case of Swarnsingh, which is a three Judges Bench is to be considered as authority on the point of effective licence. The Hon'ble Supreme Court in the said judgment has discussed and has enlightened on the point of difference between “Effective licence” and “Duly licenced”. The two terms, i.e., the term “Effective licence” under Section 3 and the term “Duly licenced” under Section 149(2)(a)(ii) of the M.V. Act are beautifully distinguished. The Hon'ble Supreme Court in the said judgment has discussed and has enlightened on the point of difference between “Effective licence” and “Duly licenced”. The two terms, i.e., the term “Effective licence” under Section 3 and the term “Duly licenced” under Section 149(2)(a)(ii) of the M.V. Act are beautifully distinguished. It can be culled out from the case of SwaranSingh (supra) that once the licence is obtained by the person than he falls in the category of “Duly licenced” person and if licence is lapsed, then he is not holding effective licence, contemplated under Section 3 of the M.V. Act. However, if the person once obtains a licence and is qualified to drive the vehicle and not holding a valid licence after lapse of this valid period, then it is not a fundamental breach. In paragraph 105 of the judgment, the Hon'ble Supreme Court has summed up its finding and has considered that even fundamental breach is not sufficient to absolve insurer from its liability to pay but it is necessary for the insurance company to show how the fundamental breach has contributed to the cause of accident. It laid down this principle by applying the rule of “main purpose” ie. object of social legislation. 9. It is true that as submitted by the learned Counsel for the respondent, the issue as to how much long period can be said or condoned by applying the interpretation of word “Duly licenced” is not dealt with in the case of SwaranSingh (supra). In the case of Ram Babu Tiwari (supra) the period of three years is considered as long period and therefore insurer's liability was excluded. In the case of KarbhariHiralal Shinde (supra), the learned learned Single Judge of Aurangabad Bench has given verdict on the basis of Ram Babu Tiwari (supra) as there was a lapse of 10 years and in the case of National Insurance Co. Ltd. vs. Salouni Subhashchandra Nagzarkar (supra), the learned Single Judge of the High Court of Bombay at Goa after considering the law laid down in the cases of SwaranSingh (supra), Ram Babu Tiwari (supra) and also in other cases cited above, has held that considering social objective of the Act, the insurance company cannot be absolved from payment of compensation and to indemnify the insured. 10. 10. It is to be noted that all these cases were decided after their respective enquiries under Section 166 of the M.V. Act were over and in the present appeal, the order of no fault liability under Section 140 of the M.V. Act is challenged. The parties are yet to lead evidence and all the issues including breach of the terms and conditions of the policy whether fundamental or not? During such long period, the ability to drive is reduced or not? Whether it itself is a negligence caused accident? etc. will be required to be decided on merit. The policy is to be placed on record and evidence on its breach of conditions and its implications is required to be tendered and other party should get an opportunity to bring relevant material on record and cross-examine the witnesses on the relevant material. 11. The issue of pay and recovery is referred to the Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Parvathneni & Anr. directing the insurance company to pay initially and then to recover from the insured. The directions of pay and recovery were given invoking power under Article 142 of the Constitution. Whether Article 142 permits the Court to create the liability where there is none, which is now pending before the larger Bench. I am informed by the learned Counsel for the respondent that in the said case of Parvathneni(supra) the larger Bench on 18.09.2013 in the Special Leave to Appeal (Civil) No. 22444/2009 has held that keeping in view the smallness of the amount disposed of the said petition. However, the Hon'ble Supreme Court kept open the question of law to be decided in the appropriate case. Thus, as on today the said question is not yet decided by the Hon'ble Supreme Court. He also informed that other reference made in the case of National Insurance vs. Roshan Lal by order dated 19.01.2007 in SLP no. 5699 of 2006 is still pending. 12. Thus, in SwaranSingh (supra) the Hon'ble Supreme Court has observed that the breach of terms and conditions of policy in respect of valid licence is not a fundamental breach if once a licence is obtained on the basis of facts of each case and there is no specific law as on today that beyond how much period is to be considered as default and breach of the policy. There is no law on the point of how much specific period the insurance company can take the defence in respect of the breach of conditions of valid licence so also these facts are required to be answered by keeping in view the background summary of the finding given in SwaranSingh (supra). SwaranSingh (supra) did not close the door of the insurance company to take defence on the point of breach of terms and conditions in respect of valid licence. It only says that if at all licence is obtained, a person proves himself to be qualified for driving the vehicle and further if he fails to renew the licence that is not a fundamental breach. The concept of fundamental breach and what is not a fundamental breach is required to be decided and tested on the basis of evidence adduced by both the parties and how the defence taken by the insurance company is based on non renewal of licence for long period. For example, whether the period of 5 years reduces the capacity of the person to drive the vehicle properly or whether non renewal of the licence for long period is itself a negligence caused accident, is required to be answered after considering the evidence of both the parties. While deciding this issued, it is necessary for the Court to take into account under section 166 of M.V. Act that the Tribunal has to give just and appropriate compensation to the claimant. Suppose in a case where highly qualified person or a person having good amount of monthly income loses his life due to rash and negligent driving of a taxi driver, whose licence is expired and has not renewed his licence for a long period and an accident takes place, then the driver or the owner of the taxi driver has obviously no financial capacity to pay a huge amount of compensation which is an appropriate and just compensation, under such circumstances, if an insurance company is exonerated from its liability to indemnify the owner of the taxi, then the applicants will be deprived of their rightful legal claim to get the compensation and the order of the Tribunal will remain as a paper decree which will frustrate the very object of the Act. However, in other cases, where a vehicle is owned by a very big industrial company or a corporate firm and a driver did not renew its licence for a long period, then in such case, considering the period of non-renewal of the licence, then the Court may consider to saddle the compensation jointly and severally 50% or by 30% - 70% on the owner of the vehicle and the insurance company as the case may be. Due to the payment of the premium, the insurance policy exists and is valid, however, the terms are breached by the driver/owner of the vehicle. Therefore, to indemnify the insured is a basic liability of the insurance company. However, it cannot be a charity to a defaulter. Therefore, the discretion is available to the Tribunal to use it fairly and to balance a scale of just and appropriate compensation. The parties may lead the evidence by taking into account the requirement of law. The appeal under no fault liability is challenged, I am of the view that these questions not be answered at this stage by this Court but they are left open and let trial to proceed and complete. The original claimant/injured is definitely entitled to the amount of compensation under no fault liability and he has to be paid. As on today the reference on the point to pay and recovery is pending before the Hon'ble Supreme Court. Hence, I think it is appropriate to pass an order on the same lines directing the insurance company to pay this initial amount of Rs. 25,000 and the said amount can be recovered from the appellant/owner depending on the final verdict of the case. The direction can be given on the same lines as that in the case of National Insurance Co. Ltd. vs. Challa Bharathamma & Ors., reported in (2004) 8 SCC 517 and also in the case of S. Iyyapan vs. United India Insurance Company Limited and Anr. reported in (2013) 7 SCC 62 . 13. The appeal is allowed. The insurance company to deposit an amount of Rs. 25,000/- within 8 weeks from today before the Tribunal and the original claimant to withdraw the same thereafter.