JUDGMENT Hon’ble U.C. Dhyani, J. (Oral) Instant appeal has been filed by the appellant, being aggrieved against the impugned judgment and award dated 18.11.2009, passed by learned Motor Accident Claims Tribunal / District Judge, Rudraprayag in MACT Case No. 17 of 2008 ‘ Rakesh Singh and another Vs. Oriental Insurance Company Ltd. and others’. There was delay of seven days’ in filing the appeal, which has been condoned by this Court, vide order dated 04.03.2010. 2. The facts giving rise to the present Appeal are as follows:- The applicants are the residents of village Kanda (Daira), Patwari Circle Daira, District Rudraprayag. On 17.06.2008, their father (deceased Gopal Singh) was going from Ukhimath to his village Kanda in Jeep No. U.A. 7 J-4183, when this vehicle reached near the place Huddu Goan, in between Tala Barangali motor road, it met with an accident due to the rash and negligent driving by its driver in which deceased Gopal Singh died on the spot. At the time of accident, deceased Gopal Singh was the retired Police Personnel from Madhya Pradesh Police of 62 years old and getting Rs. 6,000/- per month as pension. The F.I.R. of this accident was lodged at Patwari Circle Daira, District Rudraprayag. O.P. No. 1 is the Insurance Company of this vehicle and O.P. No. 2 is the owner of the vehicle. Therefore, the claimant has filed the claim petition for the compensation of Rs. 8 lakhs from the opposite parties. 3. Owner of the vehicle (O.P. No. 2 before the Tribunal) submitted his written statement and admitted all the facts of the claim petition. The owner of the vehicle also averred in his written statement that on the date of accident, the vehicle was fully insured for all the liabilities with Oriental Insurance Company (O.P. No. 1. before the Tribunal). It was further averred that the vehicle was being driven by the competent driver, having duly valid license. The accident occurred due to the technical fault in the vehicle. It was pleaded by the owner of the vehicle that the liability to pay the compensation to the petitioners is with the Insurance Company. 4. The Oriental Insurance Company (O.P. No. 1 before the Tribunal) also filed its written statement denying all the facts of the petition. The accident occurred due to the technical fault in the vehicle. It was pleaded by the owner of the vehicle that the liability to pay the compensation to the petitioners is with the Insurance Company. 4. The Oriental Insurance Company (O.P. No. 1 before the Tribunal) also filed its written statement denying all the facts of the petition. It was averred that the petitioners are not entitled to get any compensation and any claim petition filed thereof, is liable to be dismissed. The petitioners have no cause of action to file the claim petition. The petitioners did not file any document relating to the accident. F.I.R., Post mortem report, driving license, registration, permit of the vehicle, tax payment certificate, etc. were missing. According to Insurance Company, the petition was filed on the basis of concocted facts. The accident did not occur due to the technical fault, but due to the rash and negligence driving of the driver. According to the Insurance Company, the owner of the vehicle is only responsible to pay the compensation to the petitioners. 5. On the basis of the pleadings of the parties, following issues were framed by the learned Tribunal:- 1. Whether, on 17.06.2008 at about 5:30 p.m. near the village Huddu Gaon, Patwari Circle Daira, District Rudraprayag, vehicle no. UA 07 J/4183 Jeep met with an accident due to rash and negligent driving by its driver, in which, Gopal Singh was travelling and died? 2. Whether, on the date of accident, the driver of vehicle no. UA 07 J/4183 Jeep has valid and effective driving license, and all other relevant papers of the vehicle were updated, and the said vehicle was insured with the Oriental Insurance Company Ltd. for whole liabilities. If yes, then its effect? 3. Whether, the petitioners are entitled to get any amount of compensation? If so, then what amount and from whom? 6. PW1 Rakesh son of deceased appeared before the Tribunal for the petitioners and also filed copy of F.I.R., copy of post mortem report, copy of Pariwar Register, copy of D.L., copy of registration certificate, copy of insurance cover note, copy of pollution certificate and copy of permit. No oral or documentary evidence was adduced on behalf of respondents / opposite parties. 7. As regards, issue no. 1, the learned Tribunal found that vehicle no. No oral or documentary evidence was adduced on behalf of respondents / opposite parties. 7. As regards, issue no. 1, the learned Tribunal found that vehicle no. UA 07 J/4183 Jeep was met with an accident on 17.06.2008 at 5:30 p.m., near the village Huddu Gaon, due to rash and negligent driving of the driver, as a consequence of which, Gopal Singh died. 8. This Court, having heard learned counsel for the parties and having gone through the entire material available on record, is of the opinion that the findings recorded by the learned Tribunal in respect of issue no. 1 is not interferable. 9. So far as the issue no. 2 is concerned, the learned Tribunal inferred that on the date of the accident, the owner of the vehicle had a valid permit, valid insurance policy and valid driving license. 10. The learned Tribunal, therefore, decided issue no. 2 in favour of the claimants as also the owner and against Insurance Company. 11. This Court will revert back to the findings as regards issue no. 2 in a short while from now. 12. So far as issue no. 3 is concerned, the learned Tribunal has rightly calculated the quantum of compensation to the tune of Rs. 1,22,412/-. The same is also, therefore, not interferable. 13. The only question, which is left for determination of this Court is as to who will pay the compensation? Whether Insurance Company or the owner of the vehicle? And that brings us back to the decision of issue no. 2. 14. It is the submission of learned counsel for the appellant that the accidental vehicle (Mahindra Maxi Cab), was 10 seater vehicle, but 18 passengers were insured. The certificate-cum-policy schedule issued by the appellant/ Insurance Company depicts that the policy type is “package policy for Zone C pass, carrying commercial vehicle for 4WH (carrying)”. In the same certificate-cum-policy schedule, the make of the vehicle is Mahindra Maxx, in which 18 passengers are covered, although sitting capacity is 10, including the driver. 15. Paper no. 17-c is also issued by the Transport Commissioner for commercial vehicle. Paper no. 11-c (driving license) issued by Licensing Authority on 05.08.2008, filed before the learned Tribunal shows that Devendra Singh son of Jaspal Singh was authorized to drive LMV (non transport vehicle only). Column no. 15. Paper no. 17-c is also issued by the Transport Commissioner for commercial vehicle. Paper no. 11-c (driving license) issued by Licensing Authority on 05.08.2008, filed before the learned Tribunal shows that Devendra Singh son of Jaspal Singh was authorized to drive LMV (non transport vehicle only). Column no. 7 of the driving license shows that the driver was authorized to drive LMV only and according to column no. 8, the class of license was non transport, which means that the holder of driving license could only run the vehicle for private use and not for public use, carrying passengers. 16. The question for determination of this Court, therefore, is whether a person holding a license for LMV (non transport) can drive a transport vehicle? 17. Section 2 (21) of the Motor Vehicles Act, 1988 defines light motor vehicles as follows:- (21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed [7,500] kilograms; 18. “Maxicab” has been defined separately at Section 2(22) of the Act as follows:- (22) “maxicab” means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward; 19. It will also be useful to reproduce Section 3 of the Motor Vehicles Act, 1988 which reads as below:- 3. Necessity for driving license.-(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle [other than [a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving license specifically entitles him so to do. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government. 20. Therefore, no person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorizing him to drive the vehicle. 20. Therefore, no person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorizing him to drive the vehicle. The driver Devendra Singh, in the instant case, was a holder of driving license for LMV (non transport vehicle), he could not, therefore, drive a transport vehicle, i.e. maxicab, which means any motor vehicle adapted to carry more than 6 passengers, but not more than 12 passengers excluding the driver for hire or reward. Therefore, there was breach of conditions of insurance as well as breach of provisions of Motor Vehicles Act. Reliance can be placed upon a judgment rendered by Chhattisgarh High Court reported in 2008 (2) T.A.C. 35, New India Assurance Company Limited Vs. Smt. Meena Jasuja and others, which heavily places reliance on Hon’ble Apex Court’s ruling, para no. 3, 7, 8 and 9 of which can be extracted herein below for convenience. “3. Admittedly, the respondent No. 3/ driver possessed a licence only to drive light motor vehicle (for short “LMV”) and there was no endorsement on licence Ext. D-1 authorizing him to drive a transport vehicle or a passenger carrying commercial vehicle. It is also not disputed that the offending bus i.e., Mini Bus bearing Registration NO. C.G.-04/D/4509 (henceforth “the Mini Bus”) was insured as a passenger carrying commercial November, 2006 at about 1.30 p.m., due to rash and negligent driving of mini bus by the respondent no. 3, Rounak Jasuja, aged about 1 & + years got crushed underneath the mini bus and died. The Tribunal awarded compensation of Rs. 1,65,000/- jointly and severally against the appellant and the respondent nos. 3 & 4. vehicle under policy Ext. D-2 on the date of the accident. Admittedly, on 22nd (7) In new India Assurance Co. Ltd. V. Prabhu Lal, 2007 A.I.R. S.C.W. 7677:2008(1) T.A.C 401, while exonerating the Insurance Company from liability to pay compensation, the Apex Court placed reliance on a decision rendered by in Chandra Prakash Saxena, (SLP No. 17794 of 2004) in which the vehicle involved in accident was a jeep Commander made by Mahindra & Mahindra, a passenger carrying commercial vehicle and the driver was holding a licence only to drive light motor vehicle. It was held that the driver was not authorized to ply the vehicle in question, and, therefore, the Insurance Company could not be held liable to pay compensation. It was held that the driver was not authorized to ply the vehicle in question, and, therefore, the Insurance Company could not be held liable to pay compensation. (8) Placing implicit reliance on Oriental Insurance Co. Ltd. Vs. Syed Ibrahim & Others, New India Assurance Co. Ltd. Vs. Prabhu Lal and Chandra Prakash Saxena, (S.L.P. No. 17794 of 2004) (supra), I am of the considered opinion that since in the present case also the vehicle in question was a Mahindra and Mahindra mini bus insured as a passenger carrying commercial vehicle and fell into the category of transport vehicle being a educational institution bus, the appellant/Insurance Company was not liable to indemnify the award as the driver was holding a licence only to drive LMV and there was no authorization on his licence to drive a passenger carrying commercial vehicle or a transport vehicle. (9) In the result, the appeal is allowed. It is held that the appellant/Insurance Company is not liable to pay compensation which shall be recovered jointly and severally from the respondent Nos. 3 and 4.” 21. The aforesaid decision of Chhattisgarh High Court, based upon various Supreme Court’s rulings, is applicable to the facts of present case, in which holding of license for LMV (non transport vehicle) was driving a transport vehicle, as against the condition given in the insurance cover and Motor Vehicle Act. The driver was not authorized to ply such vehicle, therefore, the Insurance Company was not held to be liable to pay compensation as was held by Hon’ble Chhattisgarh High Court (supra). 22. It was held by Hon’ble the Apex Court in para nos. 5 to 9, in United India Insurance Co. Ltd. Vs. Sujata Arora and others, reported in 2013 (3) T.A.C. 29 (S.C.) as follows:- “5. The Claims Tribunal had recorded a categorical finding that the offending van at the relevant point of time was not being driven by a person holding a valid licence. 5 to 9, in United India Insurance Co. Ltd. Vs. Sujata Arora and others, reported in 2013 (3) T.A.C. 29 (S.C.) as follows:- “5. The Claims Tribunal had recorded a categorical finding that the offending van at the relevant point of time was not being driven by a person holding a valid licence. Relevant finding in this regard is reproduced herinbelow: “In view of the above I hold that since the respondent No. 1 – owner entrusted the offending van to the respondent No. 2, who was not holding a valid driving licence at the time of accident, the respondent No. 1 violated the conditions of the insurance policy and, therefore, the Insurance Company is not liable to indemnify the respondent No. 1-owner in accordance with the terms of the policy. As such I hold that the respondent Nos. 1 and 2 only are liable to pay the compensation amount in this case to the petitioners. Accordingly, this issue is decided in favour of the petitioners and against the respondent Nos. 1 and 2.” In the light of the aforesaid finding the Claims Tribunal in our opinion rightly directed that the amount should be paid by the owner and driver of the vehicle only. No liability was fastened on the Insurance Company as at the relevant point of time, Van was being driven by a person who was not holding a valid driving licence. This certainly amount to violation of the condition of the Insurance policy. 6. However, learned Single Judge of the High Court proceeded on wrong assumption and held it otherwise giving rise to filing of the present appeal. The findings of learned Single Judge that even if driver was having a fake licence, would not exonerate the Insurance Company as he was not negligent in driving, are certainly erroneous. Driving without licence or with a fake licence as driving a vehicle negligently are two different aspects of the matter. Holding a valid driving licence is a requirement of law, was being driven by a person holding a valid licence, but rashly and negligently, is a matter of evidence. The very fact which stood established that licence of driver Jagdish was a fake one, would completely exonerate Insurance Company. 7. Holding a valid driving licence is a requirement of law, was being driven by a person holding a valid licence, but rashly and negligently, is a matter of evidence. The very fact which stood established that licence of driver Jagdish was a fake one, would completely exonerate Insurance Company. 7. In the light of the aforesaid we are of the considered opinion that the impugned judgment, insofar as it fastens the liability on the Appellant Insurance Company, cannot be upheld. The same is to be set aside. We accordingly do so. 8. We are also fortified in our view in the light of the two judgment of this Court reported in 2007 (4) SCALE 36 :2007 (2) T.A.C. 398, “National Insurance Company Ltd. V. Laxmi Narain Dhut” and 2011 (5) SCALE 494 : 2011 (3) T.A.C.12, “Jawahar Singh v. Bala Jain and other”, wherein it has been held that in case it is found that the offending vehicle was driven by driver who was either holding no licence or a fake licence, then it amounts to violation of terms and conditions of policy and in that circumstances, no liability can be fastened on the Insurance Company. 9. We accordingly allow the appeal to the aforesaid extent and the finding insofar as liability has been fastened on the Insurance Company is set aside. The Award of the Claims Tribunal is restored. Parties to bear their own costs.” 23. At this stage, learned counsel for the claimants/respondent nos. 1 and 2 submitted that these issues were never raised by the appellant/Insurance Company before the learned Tribunal. Learned counsel for the claimants further submitted that there was no factual determination of commercial and non commercial vehicle, therefore, the matter should be remanded back to the learned Tribunal for determination in accordance with law. 24. Learned Senior Counsel for the appellant, on the other hand, drew attention of this Court towards para 23 of the claim petition, which reads as below:- “The deceased was completely sound and healthy before his death, who was employed in Madhya Pradesh Police; he retired recently and was not getting any pension. (Kha). Father of the applicants was boarded in vehicle No. UA 7-J/4183. (Kha). Father of the applicants was boarded in vehicle No. UA 7-J/4183. Applicants’ father was returning to his house from Ukhimath on 178.06.2008 and due to rash and negligent driving of its driver, the said vehicle met with an accident and father of applicants’ succumbed to their injuries received in the accident. Mother of the applicants was also travelling in the said vehicle, who also died in the accident and on account of sad demise of their parents, their entire family fell in deep distress and they have been deprived of from love and affection as well as financial support for ever from their parents.” 25. Since, the petitioner, in their claim petition, have nowhere taken a plea that the father of respondent nos. 2 & 3 was a gratuitous passenger, therefore, it is always open to the appellant to take such a plea, which plea has been taken by the appellant before this Court. Moreover, the legal aspects can always be taken by any party, at any stage of litigation. 26. Section 3 of the Motor Vehicles Act clearly envisaged that unless the driver holds an effective driving license issued to him authorizing him to drive the vehicle and no person shall so drive a transport vehicle other than a motor cab, unless his driving license specifically entitles him so to do. 27. This Court, therefore, holds that learned Tribunal has committed a mistake, while deciding issue no. 2 holding that liability to pay the compensation to the petitioners is of Oriental Insurance Company (appellant herein). The finding of said issue, therefore, calls for interference by this Court. 28. In this appeal, the owner of the vehicle was issued notice, but he did not appear before this Court to contest the appeal filed by the Insurance Company. Conclusion, therefore, would be that whereas the findings recorded by the learned Tribunal regarding issue nos. 1 and 3 are not interferable, the findings, as regards issue no. 2, calls for interference. 29. The claim petition is, accordingly, allowed for compensation of Rs. 1,22,412/- against the owner of the vehicle/respondent no. 3. The direction given to the Insurance Company to pay compensation to the claimants/respondent nos. 1 and 2 is, therefore, set-aside. Consequently, the appeal is allowed. 30. The consequential order, therefore, would be that the petitioners would be entitled to claim a sum of Rs. 1,22,412/- against the owner of the vehicle/respondent no. 3. The direction given to the Insurance Company to pay compensation to the claimants/respondent nos. 1 and 2 is, therefore, set-aside. Consequently, the appeal is allowed. 30. The consequential order, therefore, would be that the petitioners would be entitled to claim a sum of Rs. 1,22,412/- from the owner of the vehicle/respondent no. 3 with simple interest @ 7 % per annum from the date of the petition till the date of actual payment as compensation, excluding the amount already received by them along with interest. The amount will be paid to the petitioners in equal shares. Rs. 25,000/-, which is deposited by the appellant under statutory provision before the Registry be remitted back to the learned Tribunal. The appellant/Insurance Company shall be entitled to withdraw the entire amount lying with the Claim Tribunal and shall also be entitled to recover a sum of Rs. 60,000/- (sixty thousand) from the owner of the vehicle.