JUDGMENT : S.G. SHAH, J. 1. Heard learned advocate Mr. Dakshesh Mehta for appellant, learned advocate Mr. D. G. Chauhan for respondent No.2 and learned advocate Mr. Haresh H. Patel for respondent No.3. 2. All these three appeals are arising out of common impugned judgment and, therefore, they are heard together and decided by this common judgment, because same question of law is raised in all such appeals. 3. The appellant herein is insurance company being insurer of the vehicle in question which met with an accident, wherein original claimants have received grievous injuries for which, they have preferred Claim Petitions under the Motor Vehicles Act against driver, owner and insurer before the Motor Accident Claims Tribunal at Rajkot. Since claim petitions are by three different claimants, though tribunal has awarded compensation to all of them by common consolidated judgment in Motor Accidents Claim Petition Nos. 1392 of 1997 to 1394 of 1997 on 21.01.1999, since decree is different in all petitions for all claimants, the insurance company has filed three different appeals. However, considering the grounds in appeal, which are mainly regarding liability of the insurance company and breach of policy conditions by the insurer, only one set of reasonings would be suffice to decide all the appeals. 4. For the same set of affairs, practically when there is not much dispute about quantum of compensation, so also the nature of incident and negligence of driver, such facts are not much material. 5. However, following basic information would necessary to recollect here that the claimants of all the three claim petitions have received grievous injuries on 10.08.1993 when they were travelling in autorickshaw bearing No. GJ 3 T 5076, which was driven very rashly and negligently by its driver being respondent No.2 on Jasdan – Ghelasomnath Road. The incident has taken place because of rash and negligent driving of rickshaw, which was turned turtle, whereby claimants were thrown off the road. As aforesaid, when the issue is mainly regarding breach of policy conditions and liability of insurance company, rest of the factual details regarding injuries and quantum are not much material and, therefore it is avoided to be reproduced, since it is well described in the impugned judgment. As aforesaid, when the issue is mainly regarding breach of policy conditions and liability of insurance company, rest of the factual details regarding injuries and quantum are not much material and, therefore it is avoided to be reproduced, since it is well described in the impugned judgment. The grievance and contention of the appellant – insurance company is to the effect that the tribunal has failed to appreciate that driver of the vehicle was not holding valid driving licence and, hence, there was clear breach of terms and conditions of the policy and, therefore, insurance company cannot be held liable to indemnify the award. To substantiate their submission insurance company is relying upon copy of driving licence of the driver of the vehicle in question which is effective from 06.09.1991 to 08.04.1994 and thereafter renewed from 28.02.1997. Therefore, it is contended that on the date of accident i.e. on 10.08.1997 he was not having valid licence in favour of the respondent No.2 and, therefore, tribunal has erred in holding that insurance company has failed to brought on record cogent evidence to confirm that licence is not in existence on the date of accident. It is contended that there is no necessity for the appellant to examine any witness from RTO to prove such fact or to give notice to the owner to produce the licence or to examine respondent Nos. 1 and 2. The appellant is also relying upon the decision in case of United India Insurance Co. Ltd. vs. Gian Chand reported in 1997 ACJ 1065 = AIR 1997 SC 384. 6. In light of above contents, if we peruse the impugned judgment, the tribunal has in para 27 of the judgment while considering the issue of licence observed that; “It is not brought out by opponent No.3 – insurance company by leading any cogent and convincing evidence that opponent No.1 was prohibited from holding a valid driving licence during the period during which licence was not got renewed by opponent No.1. It appears to be a irregularity on the part of opponent No.1 which is set right by renewal of the licence from 20.12.1997 for a further period upto year 2000, and the said irregularity cannot have any adverse effect on the risk covered by the policy and it cannot be construed as an illegality amounting to breach of terms and conditions of the policy. However, if the licence would not have renewed thereafter, it would have certainly amounted to breach of terms and conditions of the policy and opponent No.3 would not have been liable to pay any compensation amount by way of indemnifying the opponent No.2.”. In para 28, the tribunal has observed that; “28. It is for the insurance company to prove that the driver was disqualified from holding a driving licence. Once it is proved that he was holding licencne, then it is required to be proved by the insurer that the driver was disqualified from holding a driving licnence at the relvant time. The insurer has not issued any notice to the driver to produce driving licence. The insurer has also not examined any witness from RTO to prove that on the date of accident, opponent No.1 was not holding a driving licence at all. Further, the insurer has not given any notice to the owner to produce licence to the driver. The insurer has not examined opponent No.1 nor opponent No.2. Therefore, adverse inference can be drawn against opponent No.3 insurance company. It is well established principle that insurer has to prove the contentions raised by the insurance company under the provisions of the Motor Vehicles Act, 1988. Here, in this case, specifically it is contended that driver was not holding driving licence at the relevant time. However, it is not the case of the insurer that the driver was not holding driving licence which is produced at Ex.43. Then it is bounden duty and mandatory duty for the insurer to lead congent evidence and to prove that on the date of accident, driver was not holding a driving licence. The opponent No.3 has failed to prove the contention raised by it and further, insurance company has failed to prove that opponent No.1 was disqualified from holding a driving licence at the relevant time and therefore opponent No.1 insurance company cannot be exonerated from its liability to indemnify awards against opponent No.2 owner of the rickshaw. I, therefore, come to the conclusion that opponent No.3 insurance company is liable to indemnify awards that may be passed against opponent No.2 in these cases. Therefore, opponent Nos.1, 2 and 3 are jointly and severally liable to pay compensation to applicants in these claim petitions.” 7. I, therefore, come to the conclusion that opponent No.3 insurance company is liable to indemnify awards that may be passed against opponent No.2 in these cases. Therefore, opponent Nos.1, 2 and 3 are jointly and severally liable to pay compensation to applicants in these claim petitions.” 7. Therefore, in addition to above ground, it is to be recollected here that for non – renewal of licence in time the licencing authority is empowered and is generally imposing a fine or penalty when person seek renewal beyond the time permitted to get the licnece renewed. Thus when in case of non – renewal of licence in time when fine is recovered, it makes clear that it does not confirm that for that period, person is prohibited to drive the vehicle or he does not have any authority to drive vehicle. 8. Whereas now this issue has been well settled by the Hon’ble Supreme Court that mere absence or invalid driving licnce or even disqualification of a driver to drive at the relevant time are not themselves defence available to the insurer against insured or 3rd party but disqualification of a driver under Section 149(2)(A)(II) of the Motor Vehicles Act has to prove and, therefore, if no evidence is lead to establish absence of licence or disqualification for holding the same, insurance company cannot be exonerated from making payment to the claimants. Such principle has been confirm in case of National Insurance Company Ltd. vs. Swaran Singh reported in case of AIR 2004 SC 1531 : 2004 (3) SCC 297 9. In that case, Insurance Company should have called for the information from the police investigation or charge-sheet or even in the prescribed form No.54 under the concerned Act to prove that the information and evidence produced by it is relating to none but the respondent No.1 driver. Therefore, in absence of such clinching evidence, it would be difficult to hold that respondent No.1 was not holding valid licence, more particularly, in his absence because what is served upon respondent Nos.1 and 2 is the copy of claim petition alone and wherein there is no disclosure about inability of the driver to drive a particular vehicle or that there is breach of policy condition by the opponent No.1 for which, respondent No.3 may not be held liable to satisfy the award. 10. 10. The Insurance Company has also not examined any of its Officers or person to prove that they have called upon the owner to disclose the information of valid licence but owner has failed to do so and, therefore, there should be presumption against him. Similarly, Insurance Company has not bothered to call upon the driver and owner to produce relevant evidence on the issue either by issuing witness summons to them or by issuance of a notice on any application by them under Order XI of Code of Civil Procedure which provides that how better information can be gathered and proved either from the litigant or from anybody else. Therefore, in absence of opponent Nos.1 and 2 and more particularly, in absence of any notices upon them regarding their disability and breach of policy condition as claimed by the appellant, prima-facie, it seems that appellant has no case in its favour to avoid to satisfy the award as per impugned judgment, only because they have preferred such appeal. 11. As against that, if we consider the legal issue then also, the applicability of law is certainly in favour of the claimants. The duty of the insurance is confirmed in such cases by legal provisions in the Motor Vehicles Act, 1988. The bare perusal of Section 147(3) makes it clear that once certificate of insurance has been issued as provided under Section 147(3) of the Act in favour of the person by whom the policy has been affected, judgment and award in respect of any such liability as is required to be covered by a policy under Section 147(1)(b) being liability covered by the terms of policy or under the provisions of Section 163(A) is obtained against any person insured by the policy, then, notwithstanding that insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provisions of this Section, pay to the persons entitled to the benefit of the decree in sum not exceeding the sum insured payable therein as if even the judgment debtor, in respect of the liability together with any amount payable in respect of cost and sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. 11.1 Words in above para are taken from Section 147 of the M. V. Act. 12. 11.1 Words in above para are taken from Section 147 of the M. V. Act. 12. The provisions of Section 149(2)(a)(i) of the M.V. Act, 1988 practically confirms the logic discussed in previous paragraphs that notwithstanding the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, its liability to satisfy the award and, therefore, there is logic that if at all the Insurance Company wants to avoid or cancel its liability, they have to do it with a positive act of such disclosure well-in-advance but not by an attempt to prove the breach of policy condition before the Court only, even if, they are entitled to avoid or cancel the policy. However, the provisions of law is otherwise that even if it is avoided or cancelled, the insurer shall, subject to the provisions of the Section, has to pay the person entitled to the benefit of decree. Whereas, for the condition precedent for enforcing liability of the Insurance Company, sub section (2) of the Section provides that the Insurance Company must have noticed through the Court before the commencement of the proceeding in which judgment or award is given. Whereas, for the condition precedent for enforcing liability of the Insurance Company, sub section (2) of the Section provides that the Insurance Company must have noticed through the Court before the commencement of the proceeding in which judgment or award is given. It is further made clear that in such sub section that even after notice of the proceedings though Insurance Company is entitled to be a party to such proceedings, it is entitled to defend the action on any of the grounds enumerated in it which are material to be recollected here and hence, reproduced as under: Section 149(2) No sum shall be payable by an insurer under subsection (I): xxx (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely: (i) a condition excluding the use of the vehicle (a) for hire or reward, where the vehicle is on the date of the contract of Insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organized racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without sidecar being attached where the vehicle is a motor cycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular. 13. Therefore, the bare reading of the above provision makes it clear that available defence includes limited issues only amongst all the issues, wherein so far as driving licence is concerned, Section 149(2)(a)(ii) provides that there could be breach of condition if there is a condition which excludes driving by named person or persons or by any person who is not duly licenced or of any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. Now, therefore, what is required is a breach of condition if any imposed in the policy to drive the vehicle by any particular class of people. Therefore, in absence of any specific condition in the policy that vehicle should not be driven by a person who is not holding an authorization to drive vehicle because he is not duly licence, may alone would not be enough to exonerate the Insurance Company from its liability to indemnify the owner in case of injuries to the third party by such a vehicle, more particularly, because the basic principle or the concept of such litigation is relating to the right of victim of vehicular accident to get compensation because of an accident arising out of the use of a motor vehicle. 14. The respondents-claimants are relying upon following judgments and submitted when the deceased and the injured were third party with respect to offending vehicle being Rickshaw, the Insurance Company cannot be exonerated from its liability. (1) National Inc. Co. Ltd. v. Swaran Singh reported in 2004 (3) SCC 297 wherein, the Honble Supreme Court held that unless the breach(es) regarding the condition of driving licence is/are not so fundamental and found to have contributed to the cause of the accident, the Insurance Company is liable; and 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. In the present case, the claimants are third party, the driver of Rickshow was having licence of Motor Cycle and Tractor since 21.12.96 and from 16.7.97 further endorsement of Auto Rickshow; the accident took place on 20.5.07, the R.T.O. officer has deposed that having licence of this type can drive transport vehicle. In this case, the driver was having licence of Auto Rickshow and was driving Rickshow (delivery van) having same mechanism. It is not the case that Rickshow being delivery van is having different mechanism than the Auto Rickshow. In the present case, the Insurance Company has failed to prove that the breach was so fundamental. Therefore the Insurance Company is liable. It is not the case that Rickshow being delivery van is having different mechanism than the Auto Rickshow. In the present case, the Insurance Company has failed to prove that the breach was so fundamental. Therefore the Insurance Company is liable. The finding of the Hon'ble Supreme Court are as under: Summary of Findings: The summary of our findings to the various issues as raised in these petitions are 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) Insurer is entitled to raise a defence in a claim petitions filed under Section 163 A 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 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 defences raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof whereof 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. (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. 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 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. 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-sec.(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-sec.(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-sec.(4) with proviso thereunder and sub-sec.(5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover 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 insurer against 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. (2) S. Iyyapan v. United India Ins. Co. Ltd. 2013 (7) SCC 62 (Supreme Court) wherein also Insurer was held liable. Relevant Para 17 and 18 reads as under:” 17. (2) S. Iyyapan v. United India Ins. Co. Ltd. 2013 (7) SCC 62 (Supreme Court) wherein also Insurer was held liable. Relevant Para 17 and 18 reads as under:” 17. The heading "Insurance of Motor Vehicles against Third Party Risks" given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party Insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party Insurance is in force. 18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of Insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the Insurance policy.” (3) First Appeal No. 2584 of 2013 decided on 8.10.13 by Division Bench of this Honble Court, wherein, the accident took place on 9.2.2012 (after 2001) and the Division Bench has relied upon the decision of S. Iyyapan V. United reported in 2013 (7) SCC 62 has held that the question of liability for breach of condition of licence is already concluded by the judgment of the Apex Court and no different view can be taken. Ultimately held the Insurance Company liable. (4) First Appeal No. 1657 of 2013 decided on 5.2.14 by Division Bench of this High Court, wherein, the accident took place on 23.9.2007 (after 2001). Similar contention of amendment after 2001 was negatived and relying upon the decision of S.Iyyapan, ultimately the Insurance Company was held liable. (5) Kulwant Singh v. Oriental Ins. Co. reported in 2015 (2) SCC 186 Supreme Court, wherein, the accident took place on 8.10.2005 (after 2001). Similar issue had come up and the order of tribunal was restored holding Insurance Company liable. (6) National Ins. Co. Ltd. v. Jisha K.P. and Ors. (Full Bench Kerala HC) reported in 2015 STPL (web) 2046 KER decided on 16.12.14, wherein, the accident took place on 3.12.2005 (after 2001). Considering all the judgments including the judgments relied by the other side, the Full Bench of Honble Kerala High Court has held that Badge is a minor technical breach and not sufficient to exonerate Insurance Company from liability. It is further held that in absence of any evidence to show that the breach was so fundamental in causing accident, there cant be any automatic direction in allowing Insurance Company to recover the amount from owner also. (7) Bhailalbhai Garbabhai Vasava v. Munikhan Ismailkhan Sayed reported in 2003 (1) GLR 605 (Gujarat High Court), wherein, this Court held that if it is found that the driver is holding a valid licence to drive a particular category of vehicle, namely, light motor vehicle or heavy motor vehicle, then, the Insurance Company cant be exonerated of its liability to reimburse the damage. (8) Jawahar Singh v. Bala Jain & Ors. reported in 2011 (6)SCC 425 paragraph 14, wherein, the Injured and the deceased were third parties, the Insurance Company has to pay and recover the amount as per the following decisions. The Tribunal has power to pass an order to pay and/or to Recover it from owner. 15. In view of above position, the decision relied upon by the appellant in case of Ram Babu Tiwari vs. United India Insurance Co. Ltd. reported in 2008 ACJ 2654 cannot be relied upon when it could not over ruled. 16. Under the above circumstance, the appeal stands dismissed. Record and Proceedings be sent back to the concerned trial Court forthwith.