JUDGMENT : (Jaspreet Singh, J.) 1. Heard Shri Vaibhav Raj, learned counsel for the appellant and Shri Vishal Talhani, learned counsel for the claimants-respondents. None has put in appearance on behalf of the respondent No.2, accordingly, the appeal has been heard in his absence. 2. The instant appeal has been preferred by the appellant Insurance Company under Section 173 of the Motor Vehicles Act, 1988 assailing the award dated 08.04.2023 passed in MACP No.310/2006, whereby the MACT/Special Judge (E.C. Act), Lucknow has awarded a sum of Rs.1,66,672/-along with interest @ 6% per annum from the date of the claim application till the date of payment and the award has been directed to be honoured by the Insurance Company. 3. Learned counsel for the appellant while assailing the impugned award dated 08.04.2013 has raised a three fold submission. (i) The primary attack is on the ground that the driver of the offending vehicle did not possess a valid and subsisting driving licence on the date of the accident, consequently, the liability could not have been fastened on the Insurance Company. The other limb of the argument is that even the vehicle in question did not possess a valid fitness certificate and as such the liability could not be fastened on the Insurance Company. In support of his submission, he relied upon the decision of the Apex Court in National Insurance Co. Ltd. v. Vidhyadhar Mahariwala and others, (2008) 12 SCC 701 . (ii) The other ground of attack is that the accident was a case of contributory negligence as shall be evident from the statement made by the claimant witness and in view thereof, the Tribunal has erred in not deducting any percentage from the amount awarded as it was a head on collision and at least 50% should have been deducted on that count. (iii) The award is assailed also on the ground that the amount as awarded for the injuries sustained by the claimant-respondent No.1 is on the higher side and since there was no requisite material evidence to substantiate the quantum, accordingly, the amount as determined by the Tribunal is by mere estimation ignoring the material on record, hence, the appeal deserves to be allowed. 4. 4. Learned counsel for the appellant has also relied upon the decision of the Apex Court in Rani and others v. National Insurance Company Ltd., and others, 2018 ACJ 2430 , Shamanna and another v. Divisional Manager, Oriental Insurance Company Ltd., and others, (2018) 9 SCC 650 . 5. Per contra, learned counsel for the claimant-respondent submits that the driver had the requisite licence and even if at all there was any discrepancy either in the licence or for want of fitness certificate, it cannot be termed as a fundamental breach of the policy and for the said reason, the Insurance Company cannot avoid its liability. 6. Learned counsel for the claimants-respondents further submits that there was no pleadings treating the accident in question to be a case of contributory negligence rather the evidence which was led clearly indicated that the accident was caused on account of sheer negligence of the driver of the offending vehicle and as such it cannot be said that the Tribunal has faulted in ascertaining the negligence and fastening the responsibility on the respondent No.2. Lastly, it is urged by the learned counsel for the claimants-respondents that the quantum is also in consonance with the settled legal principles and the record would indicate that the claimant, who was serving in the Defence Forces had suffered 30% disability and had undergone surgery for which he had furnished the necessary details as well as the X-ray plates. Merely because the treatment of the claimant was in a Defence Hospital will not mean that he would not be entitled to compensation and thus considering the aforesaid, the sum as awarded by the Tribunal requires no interference and the appeal deserves to be dismissed. 7. The Court has heard learned counsel for the parties and also perused the material on record. 8. The record indicates that by means of the order dated 19.08.2017, notices were issued to the respondents and as per the office report dated 18.11.2021, the notice on the respondent No.2 was deemed sufficient despite the same, none has put in appearance. 9. Before adverting to the respective submissions, the brief facts giving rise to the instant appeal are being noticed first. 10. 9. Before adverting to the respective submissions, the brief facts giving rise to the instant appeal are being noticed first. 10. The claimant-respondent No.1 instituted a claim petition No.301/2006 before the MACT/Special Judge (E.C. Act), Lucknow with the averments that on 25.09.2005 at around 12:00 PM in the afternoon, the claimant was near Nadarganj crossing under the PS Sarojni Nagar and was on his way to the Military Camp at Transport Nagar. At the relevant time, a Vikram Tempo No.UP-78-AA-2880 which was being driven rashly and negligently came and dashed against the claimant, who received grievous injuries and his thigh bone of the left leg was fractured for which the claimant-respondent No.1 had to undergo a surgery and a rod was inserted. In his right leg below his knee, two bones were broken and again after a surgery a plate was inserted. The claimant-respondent No.1 at the relevant time was said to be of 42 years and was serving with the Second MT Battalion, AMC Centre at Lucknow. It is in the aforesaid context that the claimants-respondents had filed a claim petition claiming a sum of Rs.10,00,000/- as compensation. 11. The owner namely Mohd. Irfan Qurasi filed his written statement denying the accident. However, took a plea that notwithstanding the denial of the accident, yet the vehicle in question was duly insured with the appellant and that the driver namely Abdul Rashid had a valid and a subsisting licence. It was also pleaded that the claimant No.1 himself was driving negligently, accordingly, no liability can be fastened on the owner. 12. The Insurance Company filed its separate written statement and took a plea that the driver of the offending vehicle did not possess the requisite driving licence and that there appears to be some collusion between the owner and the claimant and for the aforesaid reasons, the claim petition deserves to be dismissed. 13. Considering the pleadings of the respective parties, the Tribunal framed five issues and thereafter considering the entire matter, it went on to award a sum of Rs.1,66,672/-along with 6% interest in favour of the claimant-respondent by means of the award dated 08.04.2013 which is under challenge. 14. 13. Considering the pleadings of the respective parties, the Tribunal framed five issues and thereafter considering the entire matter, it went on to award a sum of Rs.1,66,672/-along with 6% interest in favour of the claimant-respondent by means of the award dated 08.04.2013 which is under challenge. 14. Considering the arguments advanced by the learned counsel for the parties, it will be appropriate to take up, first, the submission of the appellant regarding the fitness certificate as well as the driving licence of the driver of the offending vehicle. In this regard, it would be seen that the Tribunal has dealt with the aforesaid aspect while dealing with the Issues No.3 and 4 and had recorded a finding that the fitness certificate was brought on record which was valid for a period from 17.10.2002 to 16.10.2004 and that on the date of accident i.e. 25.09.2005 the fitness certificate was not valid. It also recorded a finding that the driving licence was valid for the period 02.09.2006 to 01.09.2009 but on the date of the accident, it was not valid. 15. In light of the aforesaid findings, the Tribunal clearly held that the licence as well as the fitness certificate was not valid but has awarded a sum in favour of the claimants. Also permitting the appellant to recover the aforesaid sum from the owner. Thus, the recovery rights have been given to the insurer. This has been assailed by the appellant on the premise that once the driving licence was not valid and that the fitness certificate was also not valid. Accordingly, in light of the decision of the Apex Court in Vidhyadhar Mahariwala (supra) no liability could have been affixed on the Insurance Company. 16. From a perusal of the decision of the Apex Court in Vidhyadhar Mahariwala(supra), it is found that even in the said case, the driving licence was not valid on the date of the accident though it had been renewed later and thereafter the Apex Court has merely reiterated the view taken by the Apex Court in the case of Ishwar Chandra and others v. Oriental Insurance Co. Ltd. and others, (2007) 10 SCC 650 that the Insurance Company would have no liability and allowed the appeal. Ltd. and others, (2007) 10 SCC 650 that the Insurance Company would have no liability and allowed the appeal. Learned counsel for the appellant further submitted that in the said case, the Apex Court has also referred to the decision of the Constitution Bench in National Insurance Company Ltd. v. Swaran Singh, (2004) 3 SCC 297 and despite the same, it has agreed that no such liability would fall on the Insurance Company. Consequently, even in this case, the appellants are entitled the same benefit. 17. It will be relevant to notice that the Apex Court in Swaran Singh (supra) while dealing with the case relating to discrepancy of driving licence, has held as under:- "(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 wherefor 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 fulfil the requirements of law or not will have to be determined in each case." 18. This aspect of the matter has subsequently been considered by the Apex Court in Pappu and others v. Vinod Kumar Lamba and another, (2018) 3 SCC 208 , wherein the decision of Swaran Singh (supra) has been applied to grant and recovery rights to the insurer . 19. Having considered the conspectus of the decisions rendered by the Apex Court, it would be found that it has consistently been held that where there are minor discrepancies, it is not open for the Insurance Company to absolve itself from liability. It is also to be noticed that before the Insurance Company absolves its liability, it must first show and establish that the owner was aware of the discrepancy in the licence and despite the same he continued to permit that discrepancy to subsist despite knowledge and the burden to prove this is on the insurer. Admittedly in the instant case, no such effort has been made rather the Insurance Company has not led any evidence at all nor could elicit any response in this regard in the cross-examination of the owner. 20. In view of the aforesaid, this Court is not inclined to accept the aforesaid submission of the learned counsel for the appellant. Admittedly in the instant case, no such effort has been made rather the Insurance Company has not led any evidence at all nor could elicit any response in this regard in the cross-examination of the owner. 20. In view of the aforesaid, this Court is not inclined to accept the aforesaid submission of the learned counsel for the appellant. Moreover, it would be seen that even otherwise mere non-validation of the fitness certificate is not so relevant nor it has any nexus with the cause of the accident and may not be a fundamental breach of the policy to absolve the insurer of his liability altogether as held by the Apex Court in Sant Lal v. Rajesh and others, (2017) 8 SCC 590 . The Apex Court in Nirmala Kothari v. United India Insurance Company Limited, (2020) 4 SCC 49 , in Paragraph 9 to 12 after applying Swaran Singh (supra) has held as under:- "9. Having set forth the facts of the present case, the question of law that arises for consideration is what is the extent of care/diligence expected of the employer/insured while employing a driver? To answer this question, we shall advert to the legal position regarding the liability of the insurance company when the driver of the offending vehicle possessed an invalid/fake driving licence. In United India Insurance Co. Ltd. v. Lehru [United India Insurance Co. Ltd. v. Lehru, (2003) 3 SCC 338 : 2003 SCC (Cri) 614] a two-Judge Bench of this Court has taken the view that the insurance company cannot be permitted to avoid its liability on the ground that the person driving the vehicle at the time of the accident was not duly licenced. It was further held that the wilful breach of the conditions of the policy should be established. The law with this respect has been discussed in detail in PEPSU RTC v. National Insurance Co. [PEPSU RTC v. National Insurance Co., (2013) 10 SCC 217 : (2013) 4 SCC (Civ) 713 : (2013) 4 SCC (Cri) 768 : (2014) 1 SCC (L&S) 750] . We may extract the relevant paragraph from the judgment : (PEPSU case [PEPSU RTC v. National Insurance Co., (2013) 10 SCC 217 : (2013) 4 SCC (Civ) 713 : (2013) 4 SCC (Cri) 768 : (2014) 1 SCC (L&S) 750] , SCC p. 223, para 10) “10. We may extract the relevant paragraph from the judgment : (PEPSU case [PEPSU RTC v. National Insurance Co., (2013) 10 SCC 217 : (2013) 4 SCC (Civ) 713 : (2013) 4 SCC (Cri) 768 : (2014) 1 SCC (L&S) 750] , SCC p. 223, para 10) “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. 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 [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] . 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.” 10. 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.” 10. While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake, however, the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of wilful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer. 11. The view taken by the National Commission that the law as settled in PEPSU case [PEPSU RTC v. National Insurance Co., (2013) 10 SCC 217 : (2013) 4 SCC (Civ) 713 : (2013) 4 SCC (Cri) 768 : (2014) 1 SCC (L&S) 750] is not applicable in the present matter as it related to third-party claim is erroneous. It has been categorically held in National Insurance Co. Ltd. v. Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] : (SCC p. 341, para 110) “110. … (iii) … 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 the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time.” (emphasis supplied) 12. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the insurance company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable." 21. Having applied the ratio to the present case, it would be clear that the driver did have valid licence for driving the particular vehicle but on the date of accident, it has been expired just 25 days prior and there is no evidence or plea that the owner was negligent and he knew that the licence was expired and yet he permitted the driver to drive the vehicle. Moreover the validity of the fitness certificate was not fundamentally interconnected with the accident. Accordingly, on the aforesaid two counts, the first submission of the learned counsel for the appellant fails. 22. Considering the other submission of the learned counsel for the appellant regarding contributory negligence, it would be seen that there was a clear averment of the claimant stating that he was on his left side and his motorcycle was at a very slow speed at 20 kms. per hour and he had seen the offending Vikram Tempo at a distance of 100 meters, but the Vikram Tempo came on the wrong side and dashed against the claimant. per hour and he had seen the offending Vikram Tempo at a distance of 100 meters, but the Vikram Tempo came on the wrong side and dashed against the claimant. It is in this context, if the submission of the learned counsel for the appellant is tested, it would be found that it cannot be a case of contributory negligence as the claimant was on his correct side of the road and his motorcycle was also at reasonable slow speed yet the offending vehicle came from the other wrong side and hit the claimant. No suggestions were made during the cross-examination to the claimant which could elicit any adverse response which may be affect the testimony of the claimant or could cast a doubt over his testimony. The negligence was clear and square of the offending Vikram Tempo driver and considering the aforesaid, the Tribunal has recorded a finding which cannot be said to be an erroneous and, therefore, having taken note of the aforesaid, this Court does not deem appropriate to interfere therein. Consequently, the second submission also fails. 23. Considering the third submission regarding the quantum of the award, again this Court finds that the Tribunal has considered the material available on record and it could not be disputed by the learned counsel for the appellant that the claimants suffered grievous injuries and had undergone a surgery in both of his legs and was also awarded a disability certificate indicating 30% disability. 24. In view of the aforesaid, the Tribunal has awarded a sum of Rs.1,66,672/-which by any means cannot be held to be on the higher side. Even noticing that the treatment of the claimant at the Defence Hospital, but nevertheless the scars which are left in the mind of a person, who undergoes a disability and has to depend on others for various day to day activities which reduces his functioning and mobility not only for the present but also in future and it may also give rise to certain complications and recurring medical treatment, hence, the amount as awarded by the Tribunal is appropriate especially noticing the fact that there is no challenge to the quantum by the claimant himself. 25. Considering the aforesaid, this Court finds that there is no merit in the appeal. 25. Considering the aforesaid, this Court finds that there is no merit in the appeal. Insofar as the issue of driving licence and fitness certificate is concerned, the Court could have interfered only to a limited extent but that is not the position in the instant case as the Tribunal has already granted recovery rights to the appellant Insurance Company. 26. It will be open for the appellant to first satisfy the award and thereafter recover the same from the owner. Any amount deposited before this Court shall be remitted to the Tribunal concerned to be released in favour of the claimants. The outstanding amount along with up-to-date interest as per the award shall be paid to the claimants, after deducting any amount already paid, within a period of 60 days from the date a certified copy of this order is placed before the authority concerned. 27. In view of the aforesaid, the appeal is dismissed. In the facts and circumstances, there shall be no order as to cost. 28. The record of the Tribunal concerned shall be returned expeditiously.