Judgment : Mansoor Ahmad Mir, J. Insurer has questioned the judgment and award dated 29.11.2008, made by the Motor Accident Claims Tribunal-cum- Presiding Officer, Fast Track Court, Mandi, H.P., in Claim Petition. Nos. 126/02, 243/2005 titled Madhvender Kuthleharia versus Kusum Lata Sood and others, whereby compensation to the tune of Rs.5,37,000/- with 7.5% interest was awarded in favour of the claimant and insurer/appellant herein came to be saddled with the liability, hereinafter referred to as “the impugned award”, for short, on the grounds taken in the memo of appeal. 2. Claimant/injured, owner Kusum Lata Sood and driver Amarnath have not questioned the impugned award on any ground, thus, it has attained finality so far it relates to them. 3. The insurer-United India Insurance Company has questioned the impugned award on the ground that the driver was not having a valid and effective driving licence at the time of accident. Thus, the only question to be determined in this appeal is whether the owner has committed any willful breach? 4. The claimant filed a claim petition before the Tribunal for the grant of compensation to the tune of Rs.3 lacs, as per break-ups given in the claim petition, on the ground that on 20.7.2002, he was going on his scooter towards Mandi-Pandoh, on his extreme left side of the road and when he reached at Jagar, near Pandoh, one private bus bearing registration No. HP-34-A-0925 came from Kullu side towards Mandi, hit the scooter and he sustained injuries, rendering him permanently disabled. 5. The owner, driver and insurer have filed replies to the claim petition and resisted the claim petition. 6. The Tribunal, after examining the pleadings and the documents of the parties, framed following issues: (i) Whether the claimant sustained injuries in the Motor Vehicle Accident caused by the Rash and Negligent driving of the respondent No.2 as alleged? OPP (ii) If the above issue is proved in the affirmative the quantum of compensation, the claimant is entitled and from whom? OPP (iii) Whether the breach of the terms and conditions of the Insurance Policy was occasioned or not? OPR3. (iv) Relief. 7. The claimant examined Dr. D.K. Arora as PW1, Prithvi Raj PW2, Pawan Kumar PW3, Narender Kumar PW4 and claimant himself stepped in to the wetness-box as PW5. 8. The owner has examined Vidya Sagar as RW1 and Amar Nath driver himself stepped into the witness-box as RW2. OPR3. (iv) Relief. 7. The claimant examined Dr. D.K. Arora as PW1, Prithvi Raj PW2, Pawan Kumar PW3, Narender Kumar PW4 and claimant himself stepped in to the wetness-box as PW5. 8. The owner has examined Vidya Sagar as RW1 and Amar Nath driver himself stepped into the witness-box as RW2. 9. The insurer has not led any evidence. Thus, the evidence led by the claimant, owner and driver has remained unrebutted. 10. In this appeal, the findings recorded on Issues No. 1 and 2 are not in dispute, thus upheld. 11. Issue No.3. It was for the insurer to discharge the onus, but it has failed to do so. However, I have gone through the statements of RW1 and RW2. The Tribunal has discussed the said statements in para 18 of the impugned award, is well reasoned, needs no interference. 12. It was for the insurer to plead and prove that the owner has committed any willful breach in terms of Sections 147 and 149 of the Motor Vehicles Act read with National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004 Supreme Court 1531. It is apt to reproduce relevant portion of para 105 of the judgment herein: “105. ..................... (i) ......................... (ii) ........................ (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 wherefore would be on them. (v)......................... (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 wherefore would be on them. (v)......................... (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.” 13. It would also be profitable to reproduce para 10 of the judgment rendered by the Apex Court in Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217, herein: “10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh case. If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation.” 14. Applying the test, the Tribunal has rightly recorded the findings and saddled the insurer with the liability and are upheld. 15. Viewed thus, the impugned award is upheld and appeal is dismissed. 16. Registry is directed to release the amount in favour of the claimants strictly, in terms of the condition contained in the impugned award, through payee’s cheque account. 17. Send down the record, forthwith, after placing a copy of this judgment.