Judgment : 1. Heard Ms. Kalyankar, learned Counsel appearing on behalf of the appellant, Mr. Mulgaonkar, learned Counsel appearing on behalf of respondent no. 1, and Mr. Dessai, learned Counsel appearing on behalf of respondent no. 2. 2. This appeal is directed against the judgment and order dated 22/04/2013 passed by the Motor Accident Claims Tribunal, South Goa, Margao ('Claims Tribunal') in Claims Petition No. 195/2011. 3. In the said Claims Petition, appellant was respondent no. 3; respondent no.1 was the claimant; respondent no. 2 was the respondent no. 1 (driver) and respondent no. 3 was the respondent no. 2 (owner of the vehicle). Parties shall, hereinafter, be referred to as per their status in the said Claims Petition. 4. The claimant had filed an application under Section 166 of the Motor Vehicles Act, 1988 for compensation of total amount of Rs. 6,59,000/-on account of injuries, resulting in permanent disability, sustained by her in a motor vehicular accident. 5. Case of the claimant was that she was a housewife and a vegetable vendor earning an amount of Rs. 9,000/- per month and that on 09/08/2011 at about 16.25 p.m. at Simpal, Sancoale, Goa she was a pedestrian on extreme left side of a Kaccha Road i.e. road leading from Vasco to Cortalim when respondent no.1 rode the motor cycle bearing No. GA-06/H-0536 towards Cortalim direction in a rash and negligent manner and at a fast speed, due to which, he went off the road i.e. towards the wrong side and hit the claimant and stopped at a distance of 10 metres. On account of the accident, the claimant suffered injuries resulting in permanent disability. 6. Respondent no. 3 (insurance company) in its written statement had alleged that respondent no.1 was not holding a valid driving licence and by allowing respondent no.1 to ride the motor cycle, respondent no. 2 had breached the terms of the insurance policy, due to which, respondent no. 3 was not liable to pay any compensation to the claimant. On merits also, respondent no. 3 denied the case of the claimant. 7. Two issues were framed by the learned trial Court. The claimant examined herself as AW1, one Shri Ashok Naik as AW2, Shri Vinayak Naik as AW3 and Dr. Zelio D'Mello as AW4. Respondent no.1 (driver) examined himself as DW1 and respondent no.3 (insurance company) examined its Senior Legal Executive as DW2. 8. 3 denied the case of the claimant. 7. Two issues were framed by the learned trial Court. The claimant examined herself as AW1, one Shri Ashok Naik as AW2, Shri Vinayak Naik as AW3 and Dr. Zelio D'Mello as AW4. Respondent no.1 (driver) examined himself as DW1 and respondent no.3 (insurance company) examined its Senior Legal Executive as DW2. 8. Upon consideration of the entire evidence on record, the trial Court held that the accident had occurred due to the rash and negligent riding of the motor cycle by respondent no. 1 and the said accident caused injuries leading to permanent disability to the extent of 50 % to the claimant. The trial Court held that the claimant was entitled to receive additional compensation of Rs. 3,35,635/- and that respondents no. 2 and 3 were jointly and severally liable to pay the said sum to the claimant along with interest thereon at the rate of 9 % p.a. from the date of the application i.e. from 31/10/2011 till the date of deposit of the amount in the Tribunal. Respondent no. 3, being aggrieved by the said judgment and order, has filed the present appeal. 9. Ms. Kalyankar, learned Counsel appearing on behalf of respondent no. 3 (insurance company) submitted that the respondent no. 1(driver) was admittedly charged for an offence under Section 3 of the Motor Vehicles Act, since he was not holding a valid driving licence on the date of accident. She submitted that though the respondent no. 1 was holding a learner's licence, the conditions required in respect of the learner's licence were not complied with inasmuch as there was no pillion rider having licence to give instructions nor there was letter 'L' painted on the front and rear of the said motor cycle. Learned Counsel submitted that the evidence of the respondent no.1 did not prove that the respondent no. 2 had complied with Rule 3 of the Central Motor Vehicle Rules. She, therefore, submitted that the owner of the vehicle had handed over the motor cycle to the driver, who was not holding a valid driving licence and thus, had committed the breach of the terms of the policy, due to which respondent no. 3 was not liable to pay any compensation. She relied upon the following authorities : (i) United India Insurance Company Ltd. Vs. Gian Chand, [ AIR 1997 SC 3824 ]. 3 was not liable to pay any compensation. She relied upon the following authorities : (i) United India Insurance Company Ltd. Vs. Gian Chand, [ AIR 1997 SC 3824 ]. (ii) JeetSingh Vs. National Insurance Co. Ltd. and Ors., (iii) National Insurance Company Limited Vs. Dupati Singaiah and Ors., [ AIR 2009 AP 142 ] (iv) Manager, United India Insurance Co. Ltd. Vs. Kamlabai Mukunda Kumare and others, (v) United India Insurance Co. Ltd. Vs. Anubai Gopichand Thakare, [2008 ACJ 213] 10. Without prejudice to the above, learned Counsel appearing on behalf of respondent no.3 (insurance company), urged that the claimant had failed to prove the income as alleged in the claim petition. She contended that there was no evidence to establish that the injured claimant was a vegetable vendor and was earning Rs. 4,500/- per month. Learned Counsel further pointed out that though the claimant had sustained only 50% of permanent disability, however, the Claims Tribunal granted compensation as if there was disability of 100%. She, therefore, submitted that the appeal be allowed and the impugned judgment and order be quashed and set aside insofar as respondent no. 3 is concerned. 11. Mr. Mulgaonkar, learned Counsel appearing on behalf of the claimant submitted that respondents no. 1 and 2 have not challenged the judgment and order and respondent no. 3 in the cross-examination of the claimant did not challenge the fact that the claimant had sustained 50% permanent disability and that she was a vegetable vendor and was earning Rs. 4,500/- per month. He, therefore, submitted that respondent no. 3 cannot challenge the quantum of compensation. 12. Mr. Dessai, learned Counsel appearing on behalf of respondent no. 1(driver) submitted that respondent no.1 (driver) had a learner's licence as on the date of the accident and subsequently, he also obtained a driving licence. He submitted that respondent no. 3 (insurance company) did not prove that respondent no. 2 (owner of the vehicle) had violated the terms of the policy. He further submitted that there was no evidence on record showing that respondent no. 2 was aware of the fact that respondent no.1(driver) did not have a valid driving licence as on the date of the accident. He relied upon the judgment of the Apex Court in the case of “National Insurance Company Ltd Vs. He further submitted that there was no evidence on record showing that respondent no. 2 was aware of the fact that respondent no.1(driver) did not have a valid driving licence as on the date of the accident. He relied upon the judgment of the Apex Court in the case of “National Insurance Company Ltd Vs. Swaran Singh and others, [ (2004) 3 SCC 297 ].” and the judgment of the Karnataka High Court in the case of “Oriental Insurance Co. Ltd. Vs. Felix Correa”, [1989(1) Kar. L.J. 490]. 13. I have gone through the original record and proceedings. I have considered the submissions advanced by the learned Counsel for the parties and also the judgments relied upon by them. 14. The first question is whether the respondent no.1 (driver) rode the motorcycle in a rash and negligent manner and caused injuries to the claimant. The evidence on record of the claimant (AW1) and her witnesses namely Ashok Naik (AW2) and Vinayak (AW3) duly proves that the accident had occurred due to the rash and negligent riding of the motorcycle by the respondent no.1. PW2, Vinayak Naik also acted as one of the pancha witnesses to the panchanama of scene of accident and sketch (Exhibit 22-colly). The sketch shows that the motorcycle travelled further to a distance of 10.10 metres after giving dash to the claimant. The panchanama and the sketch has been duly proved by PW2. There can be no dispute that as a result of the said accident, the claimant had sustained grievous injuries leading to permanent disability. The evidence of AW4 Dr. Zelio D'Mello proves that the claimant had sustained fractures to left tibia fibula, distal end of the right radius and fracture dislocation of left shoulder, besides head injury with chest trauma. The claimant had sustained 50 % permanent disability due to severe limitation of movement of the left shoulder joint. 15. The next question is as to what compensation would be just and reasonable in the present case. A perusal of the cross-examination of AW1 by the learned Counsel for respondent no.3 (insurance company), reveals that the fact as stated by AW1 that she was a vegetable vendor and that she was earning Rs. 4,500/- per month was not denied. Even otherwise, the claimant had stated on oath that she was earning about Rs. A perusal of the cross-examination of AW1 by the learned Counsel for respondent no.3 (insurance company), reveals that the fact as stated by AW1 that she was a vegetable vendor and that she was earning Rs. 4,500/- per month was not denied. Even otherwise, the claimant had stated on oath that she was earning about Rs. 9,000/- per month, but the trial Court restricted the income of the applicant to Rs. 4,500/- per month, which in my view, is just and reasonable and cannot be faulted. 16. It is seen that the claimant was 67 years old as on the date of the accident, but she had sustained only 50 % disability due to the fracture dislocation of left shoulder, because of which, there was severe limitation of movement of left shoulder joint. Relying upon the Judgment of the Apex Court in the case of “Sarla Varma and others Vs. Delhi Transport Corporation and another”, [ 2009 ACJ 1298 ], the trial Court rightly held that the multiplier to be used was 5. In the case of the claimant, as already stated above, the income of the claimant held to be Rs. 4,500/- per month was also just and reasonable. The trial Court however, held that though the claimant had suffered 50% disability, she did not produce any evidence to show that she could not do any other work. Thus, the trial Court does not appear to have held that there was 100% loss of earning capacity in respect of the claimant on account of the said 50% disability. In such circumstances, it could not be held that the claimant was entitled to compensation for 100% loss of earning capacity. The trial Court has granted an amount of Rs. 2,72,000/- towards loss of income and future loss of income taking it for granted that there was 100% disability. In my view, since the claimant had sustained only 50% of disability but could do some work, other than as vegetable vendor, the amount to be awarded to her on account of permanent disability would only to be Rs. 1,35,000/- which is half of Rs. 2,72,000/-. Insofar as the medical expenses are concerned, there was documentary evidence to prove that the said expenses were to the extent of Rs. 70,725/-. Towards Taxi charges, a meager amount of Rs. 1,800/- has been awarded which cannot be held to be exorbitant. 1,35,000/- which is half of Rs. 2,72,000/-. Insofar as the medical expenses are concerned, there was documentary evidence to prove that the said expenses were to the extent of Rs. 70,725/-. Towards Taxi charges, a meager amount of Rs. 1,800/- has been awarded which cannot be held to be exorbitant. Towards pain and suffering, the amount of Rs. 10,000/- has been rightly awarded. Lastly, towards the court fee, an amount of Rs. 6,610/- has been awarded and towards the costs, an amount of Rs. 1,500/- has been awarded. In the circumstances above, the total compensation, to which the claimant is entitled, becomes Rs. 2,00,635/- rounded up to Rs. 2,00,700/-. Therefore, the claimant is held to be entitled to the said amount of Rs. 2,00,700/- as compensation along with interest at the rate of 9 % p.a. from the date of the application till the date of actual payment. 17. The main question is whether the respondent no. 3 (insurance company) is liable to indemnify the owner of the said motorcycle. It is true that respondent no.1 did not have a full-fledged driving licence as on the date of the accident. However, it is a fact that he had a valid learner's licence at the relevant time and subsequently, i.e. after the accident, he had obtained the full-fledged driving licence. Thus, as on the date of accident, the respondent no. 1 was not disqualified from holding an effective driving licence. The insurance policy contained the following clause under the head of driver:- “DRIVER: Any person including the insured: Provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learner's licence may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the central Motor Vehicles Rules, 1989.” Rule 3 of the central Motor Vehicles Rules, 1989 lays down as under: General. Provided also that the person holding an effective Learner's licence may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the central Motor Vehicles Rules, 1989.” Rule 3 of the central Motor Vehicles Rules, 1989 lays down as under: General. The provisions of sub-section (1) of Section 3 shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as - (a) such person is the holder of an effective learner's licence issued to him in Form 3 to drive the vehicle; (b) such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle; and (c) there is painted, in the front and the rear of the vehicle or on a plate or card affixed to the front and the rear, the letter “L” in red on a white background as under:- Provided that a person, while receiving instructions or gaining experience in driving a motorcycle (with or without a side car attached), shall not carry any other person on the motorcycle except for the purpose and in the manner referred to in clause (b). 18. Thus, the respondent no. 1, could ride the said motorcycle, provided he had satisfied the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989. Though respondent no. 3 had alleged in its written statement that respondent no. 2 handed over the possession of the said motorcycle to respondent no.1 which amounted to willful breach of material terms and conditions of the policy, however, there is no clause in the insurance policy that the owner shall not hand over the possession of the vehicle to any other person. There is nothing on record to prove that respondent no. 2 was aware of the fact that respondent no.1 did not have a full-fledged driving licence and that he only had a learner's licence. Admittedly, the said motorcycle belonging to respondent no. 2 was insured with respondent no. 3 and the policy was valid as on the date of accident. 19. 2 was aware of the fact that respondent no.1 did not have a full-fledged driving licence and that he only had a learner's licence. Admittedly, the said motorcycle belonging to respondent no. 2 was insured with respondent no. 3 and the policy was valid as on the date of accident. 19. In the case of “Gian Chand and others” (supra), it appears that there was an exclusion clause in the insurance policy which did not permit the insured to hand over the vehicle for the purpose of driving to an unlicensed driver. It appears that the learner's driving licence was not covered by the insurance policy in the case supra. The above case is not applicable to the facts and circumstances of the present case. 20. In the case of “JeetSingh” (supra), the Delhi High Court has held that the presence of licensed driver with the learner's license holder was not shown by the police in criminal case nor any other reliable evidence was placed by the appellant to prove the presence of such person at the time of accident and that even if it is proved that such person was present still it cannot help the appellant since mere presence also cannot help the appellant, as admittedly such person was not an instructor as envisaged under Rule 3(b) of the central Motor Vehicles Rules and therefore, the appellant (insured) cannot claim exoneration from his liability to satisfy the award. In the case supra, the insurance company was directed by the Tribunal to pay the awarded amount and recovery rights were given to it to recover the award amount from the owner of the offending vehicle. The High Court held that there was no illegality in the award as above passed by the Tribunal. 21. In the case of “Dupati Singaiah and others” (supra), the Andhra Pradesh High court has held that it is sufficient if it is shown by the insurer that the insured-owner failed to exercise reasonable care in the matter of fulfilling conditions of the Policy. How the Insurance Company can prove that the insured failed to take reasonable care in the matter of fulfilling condition of the policy? The negative can be proved by getting evidence from the licensing authority. How the Insurance Company can prove that the insured failed to take reasonable care in the matter of fulfilling condition of the policy? The negative can be proved by getting evidence from the licensing authority. When such initial burden is discharged by the insurance company, it is for the owner who stands indemnified under the Policy of insurance to come forward and give evidence that in his capacity he has taken reasonable care and caution. The above was a case of fake licence. The High Court gave liberty to the Insurance company to recover the compensation from the owner of the offending vehicle. 22. In First Appeal No. 827 of 2006 (“United India Insurance Co. Ltd. Vs. Anubai Gopichand Thakare and others”) and other Appeals, by Judgment dated 04/08/2007, the learned Single Judge of the Aurangabad Bench of this Court has held that the directions given by the Apex Court to the insurer to satisfy the award in favour of the claimant and to recover the same from the owner of the vehicle are given in the exercise of extra ordinary jurisdiction of the Apex Court under Article 136 and Article 142 of the Constitution and the same powers are not available to the Tribunal or High Court. I have no hesitation to agree with the above. The question, therefore, of directing the Appellant to first pay the compensation to the claimant and then to recover the same from the owner does not arise. 23. In the case of “Felix Correa” (supra), the owner of the offending vehicle was himself driving his vehicle when the accident occurred. The said owner-cum-driver had only the learner's licence as on the date of accident. The Karnataka High court confirmed the order of the Tribunal making the Insurance Company as well liable on the ground that there cannot be valid or legal exclusion of the liability if the vehicle is driven by a person holding a learner's licence and was not disqualified from holding such a licence. 24. In the case of “Swaran Singh and others” (supra), the Hon'ble Apex Court held that the Motor Vehicles Act, 1988 provides for grant of learner's licence. A learner's licence is, thus, also a licence within the meaning of the provisions of the said Act. 24. In the case of “Swaran Singh and others” (supra), the Hon'ble Apex Court held that the Motor Vehicles Act, 1988 provides for grant of learner's licence. A learner's licence is, thus, also a licence within the meaning of the provisions of the said Act. It cannot, therefore, be said that when a vehicle is being driven by a learner subject to the conditions mentioned in the licence, he would not be a person who is not 'duly licensed' resulting in conferring a right on the insurer to avoid the claim of the third party. The Hon'ble Apex Court held that it cannot be said that a person holding a learner's licence is not entitled to drive the vehicle. Even if there exists a condition in the contract of insurance that the vehicle cannot be driven by a person holding a learner's licence, the same would run counter to the provisions of section 149(2) of the said Act. The Apex Court held that the owner of the vehicle cannot be held to be exclusive liable to pay the compensation amount unless and until it was proved that the said owner was aware of the fact that rider of the vehicle, to whom he handed over the vehicle, did not possess a valid driving licence. 25. As has been rightly observed by the learned trial Court, the ratio of the case of “Swaran Singh and others” (supra) fairly applies to the facts of the present case. In the present case, the respondent no. 1 was holding a valid learner's licence as on the date of the accident and thus, was not disqualified from holding or obtaining an effective driving licence. The insurance policy, in the present case, allowed a person holding effective learner's licence to drive the insured vehicle, provided, of course, the driver complies with the provisions of Rule 3 of the Central Motor Vehicles Rules. Thus, it was very difficult to hold that the respondent no. 2, while allowing the respondent no. 1 to ride his Motorcycle, knew that the respondent no. 1 would violate the conditions of Rule 3 of the Central motor Vehicles Rules. In such circumstances, respondent no. 2 cannot be held to have violated any terms of the Insurance policy. Therefore, the trial Court rightly held that respondents no. 2 and 3 are jointly and severally liable to pay the compensation to the claimant. 26. 1 would violate the conditions of Rule 3 of the Central motor Vehicles Rules. In such circumstances, respondent no. 2 cannot be held to have violated any terms of the Insurance policy. Therefore, the trial Court rightly held that respondents no. 2 and 3 are jointly and severally liable to pay the compensation to the claimant. 26. In the result, the appeal is partly allowed. The amount of additional compensation to be paid by respondents no. 2 and 3 of Claims Petition No. 195/2011 is reduced to Rs. 2,00,700/-which shall be paid by respondents no. 2 and 3 jointly and severally along with interest at the rate of 9 % p.a. as from the date of the application i.e. from 31/10/2011 till the date of actual payment. 27. Appeal stands disposed of accordingly.