JUDGMENT M. S. Sonak, J. - Heard Mr Saumen Vidyarthi, who appears along with Mr Rushabh Vidyarthi and Mr Vibhav Amonkar for the appellant. Mr James Lopes appears for respondent no.1-insurance company, and Mr Sudesh Usgaonkar appears for respondent no.3 to 5 (original claimants). 2. Both these appeals challenge the judgments and awards dated 16.02.2019 made in Claim Petitions No.119/2015 and No.120/2015 mainly to the extent they make a "pay and recovery order", thereby giving liberty to the insurance company to recover the awarded amounts from the appellant (owner of the offending vehicle). 3. The learned counsel agree that a common judgment and order can dispose of both the appeals because Claim Petitions No.119/2015 and No.120/2015 were instituted by the original claimants to claim compensation for the death of their parents in the vehicular accident which occurred on 30.04.2015. The Tribunal has directed the insurance company to compensate the claimants and, after that, recover the same from the appellant (owner). The Tribunal reasoned there was a fundamental breach of the terms and conditions of the insurance policy since the driver of the vehicle did not have an authentic license or had a fake license at the time of the accident. 4. Mr Vidyarthi, the learned counsel for the appellant, submits that the burden of proving a breach of the terms and conditions of the insurance policy is squarely upon the insurance company. He submits that the insurance company did not discharge such a burden. Therefore, the Tribunal erred in making a "pay and recover order". 5. Mr Vidyarthi submitted that no charges were framed under Sections 3 and 5 against the driver and the offending vehicle's owner. The insurance company issued no notice to the owner declining indemnification. The RTO officials were never examined regards the photocopy of the so-called fake license that was admitted in evidence. The police officials who were examined in this matter were also not questioned about the authenticity or otherwise of the license. Mr Vidyarthi submitted that these are significant factors that vitiate the "pay and recover order". 6. Mr Vidyarthi submits that there was no proper service on the appellant or the driver because there is nothing on record to show that steps to serve by the regular mode were adopted before the service was effected through publication. Mr Vidyarthi submitted that these are significant factors that vitiate the "pay and recover order". 6. Mr Vidyarthi submits that there was no proper service on the appellant or the driver because there is nothing on record to show that steps to serve by the regular mode were adopted before the service was effected through publication. He submits that due to such unlawful service, the appellant and the driver were deprived of effective opportunity to contest the claim petitions. 7. Mr Vidyarthi relies on National Insurance Co. Ltd. Vs. Swaran Singh & Ors. - (2004) 3 SCC 297 , Nirmala Kothari vs. United Insurance Co. Ltd. - (2020) 4 SCC 49 , Rishi Pal Singh vs. National Insurance Co. Ltd. & Ors. - 2022 ACJ 1868, Neha Nilesh Arlekar vs. S. D. Reddy & Ors. - (2022) SCC OnLine Bom 409 and New India Assurance Co. Ltd. Vs. Nelufer Bi & Ors. - (2022) SCC OnLine Bom 3787 to support his above contentions. Based on all this, Mr Vidyarthi submits that the impugned awards to the extent they make a "pay and recover order" may be set aside. 8. Mr James Lopes, the learned counsel for the insurance company, defends the impugned "pay and recover order" based on the reasoning adopted by the Tribunal. First, he submitted that the driver's license was fake, established by producing the necessary communication from the RTO authorities. Second, he presents that there was no requirement to examine the RTO authorities because, despite good service, the appellant and driver did not appear and contest the issue of the fake license. Third, he submitted that there was no explanation why the appellant and the driver did not participate in the proceedings or why the driver did not enter the witness box and produce a valid license, if he had one on the date of the accident. Fourth, he submits that the Tribunal was justified in drawing an adverse inference. Finally, he submits that the insurance company squarely discharged the burden; therefore, this appeal may be dismissed. 9. Mr Sudesh Usgaonkar, the learned counsel for the claimants, submitted that any finding on the issue of "pay and recover" makes no difference to the claimants he represents. However, he submitted that there was good service on the appellant and the driver through substituted service. 10. The rival contentions now fall for my determination. 11. 9. Mr Sudesh Usgaonkar, the learned counsel for the claimants, submitted that any finding on the issue of "pay and recover" makes no difference to the claimants he represents. However, he submitted that there was good service on the appellant and the driver through substituted service. 10. The rival contentions now fall for my determination. 11. Upon due consideration of the rival contentions and the material on record, the following two points arise for determination in these appeals:- (A) Was there good service on the appellant (owner) and the driver by the Tribunal? (B) Is the "pay and recover order" made by the Tribunal legal and proper? 12. On the first point, the records show that attempts were made to serve the appellant (owner) and the driver at the address the original claimants obtained from the documents that were made available to them. After such efforts failed, leave was sought and obtained from the Tribunal to serve the appellant (owner) and the driver by substituted service. 13. The service was by publication in Free Press Journal, which is a journal having substantially wide circulation. The appellant has not disputed the address. The contention about the publication not being made in a regional language newspaper is too hyper-technical, particularly since it is made by a private limited company, and that too, in a claim petition instituted by three minor daughters aged 14, 12 and 3 for the death of both their parents in a vehicular accident. Merely because the appellant claims not to have come across the public notice or the paper publication, there is no scope to hold that there was any irregularity in serving the appellant (owner) or the driver. 14. Therefore, the contention about the invalid or inadequate service of notice deserves no acceptance. The Tribunal, accordingly, did not err in marking the appellant and the driver ex-parte. Therefore, the first point for determination is answered against the appellant. 15. Regarding the second point for determination, it is, by now, well settled that the burden of proof is on the insurance company to establish a fundamental breach of the terms and conditions of the insurance policy. Therefore, since the insurance company had contended that the driver of the insured vehicle had no license or a fake license, the burden of proving this was entirely on the insurance company. 16. Therefore, since the insurance company had contended that the driver of the insured vehicle had no license or a fake license, the burden of proving this was entirely on the insurance company. 16. In Swaran Singh (supra), the Hon'ble Supreme Court held that the person who alleges breach must prove the same. Thus, the insurance company was required to establish the breach by cogent evidence. The usual rule is that once the insured proves that the compulsory insurance clause covers the accident, the insurer must prove that it comes within an exception. If the insurance company fails to prove that there has been a breach of policy conditions on the part of the insured, the insurance company cannot be absolved of its liability. 17. In Swaran Singh (supra), the Hon'ble Supreme Court further held that in claims for compensation for accidents, various kinds of breaches concerning driving licence conditions arise for consideration before the Tribunal. The breach of the policy condition, e.g. disqualification of the driver or invalid driving licence of the driver, as contained in Section 149(2)(a)(ii), has 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 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 the use of vehicles by a duly licensed driver or one who was not disqualified from driving at the relevant time. 18. In Swaran Singh (supra), the Hon'ble Supreme Court, in the context of the defence that the driver's license was fake, made the following observations in para 92:- "92. It may be true as has been contended on behalf of the petitioner that a fake or forged licence is as good as no licence but the question herein, as noticed hereinbefore, is whether the insurer must prove that the owner was guilty of the wilful breach of the conditions of the insurance policy or the contract of insurance. In Lehru case United India Insurance Co.Ltd. vs. Lehru - (2003) 3 SCC 338 , the matter has been considered in some detail. In Lehru case United India Insurance Co.Ltd. vs. Lehru - (2003) 3 SCC 338 , the matter has been considered in some detail. We are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish wilful breach on the part of the insured and not for the purpose of its disentitlement from raising any defence or for the owners to be absolved from any liability whatsoever. We would be dealing in some detail with this aspect of the matter a little later." 19. The summary of findings in Swaran Singh (supra) is set out in para 110. Clauses (iii) and (iv) of para 110 are relevant and therefore transcribed below:- "iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has 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 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. (iv) Insurance companies, 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." 20. Nirmala Kothari (supra) was a case where the vehicle involved in the accident was driven by the insured owner's driver, who did not have a valid/genuine license. In this context, the Hon'ble Supreme Court held that the employer must verify if the driver has a driving licence while hiring a driver. Still, suppose the driver produces a licence which looks genuine on the face of it. In this context, the Hon'ble Supreme Court held that the employer must verify if the driver has a driving licence while hiring a driver. Still, suppose the driver produces a licence which looks genuine on the face of it. In that case, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. Further, 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) of the M.V. Act 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 can 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 be liable. 21. In Rishi Pal Singh (supra), the truck owner involved in the accident challenged the "pay and recover order" made by the Tribunal against him. However, the Hon'ble Supreme Court relying upon Swaran Singh (supra) and Lehru (supra), reiterated that the owner of the vehicle is expected to verify the driving skills of the driver before appointing him and once he is satisfied that the driver is competent to drive he is not expected to verify the genuineness of the driving license issued to the driver. Based on this, the pay and recover order made by the Tribunal was set aside. 22. In the present case, the insurance company examined Ashok Karne, its legal retainer, in support of the contention about the breach of the terms and conditions of the insurance policy. This witness deposed that the driver of the offending vehicle was not holding a valid and effective driving license at the time of the accident. He deposed that driving license No.MH-01/2007/21405 produced at Exh.34 does not belong to the driver Santosh Kumbhar. He produced an extract from RTO Mumbai Central and claimed that one Gajendra Vekaria holds driving license No.MH-01/2007/21405, and one Abdul Rahim Ansar holds driving license No.MH-01/2007/21205. He further deposed that both the licenses concern driving a non-transport vehicle and the offending was a transport vehicle. 23. He produced an extract from RTO Mumbai Central and claimed that one Gajendra Vekaria holds driving license No.MH-01/2007/21405, and one Abdul Rahim Ansar holds driving license No.MH-01/2007/21205. He further deposed that both the licenses concern driving a non-transport vehicle and the offending was a transport vehicle. 23. Mr Karne also produced on record the insurance policy. This policy provides that any person, including the insured, provided such person holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license, would be the person or classes of the persons entitled to drive. 24. Mr Vidyarthi contended that since the policy employs the word "and" to connect the phrases "person driving holds an effective driving license at the time of the accident" "is not disqualified from holding or obtaining such a license", both these conditions must be read and construed conjunctively and not disjunctively. In this matter, it is unnecessary to go into the correctness of this contention. However, suppose the evidence on record is evaluated on the touchstone of the principles in Swaran Singh (supra), Nirmala Kothari (supra) and Rishi Pal Singh (supra). In that case, it is evident that the insurance company has failed to discharge the burden in the context of a fundamental breach of the terms and conditions of the insurance policy. 25. In the first place, what is produced on record is only a photocopy of the driver's license. Secondly, even Ashok Karne produced an extract from the RTO Mumbai on record. No RTO official from Mumbai was ever examined. The record evidence shows that the appellant (owner) is a transport company. Mr Vidyarthi submitted that they have several trucks/transport vehicles. In such circumstances, the insurance company has not discharged the onus of proving breach of the terms and conditions of the insurance policy. 26. As noted in Swaran Singh (supra), 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. 26. As noted in Swaran Singh (supra), 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 the use of vehicles by a duly licensed driver or one who was not disqualified from driving at the relevant time. In this case, the insurance company failed to prove that the insurer did not take adequate care and caution to verify the genuineness or otherwise of the license held by the driver. 27. The police officials from whose custody, in all probability, the photocopy of the driver's license was procured were examined by the claimants in the context of rashness and negligence. However, at that stage, no questions were posed to these police officials about the genuineness or otherwise of the driver's license, even though the insurance company had an adequate opportunity to cross-examine the police officials on this aspect. 28. The record does not show that any prosecution was launched against the driver for driving without a license, with a fake license, or against the owner for permitting an unlicensed driver to drive the truck. 29. Thus, on a cumulative consideration of the above material on the touchstone of the principles laid down by the Hon'ble Supreme Court in Swaran Singh (supra), Nirmala Kothari (supra) and Rishi Pal Singh (supra), the insurance company cannot be held to have discharged the burden of proving any fundamental breach of the terms and conditions of the insurance policy. The insurance company failed to establish negligence on the appellant's part in not verifying whether its driver's license was authentic or fake. In such circumstances, the "pay and recover order" warrants interference. 30. As noted earlier, the burden of establishing a fundamental breach of the terms and conditions of the insurance policy is on the insurance company, which seeks to avoid liability. From the evidence led by the insurance company, this onus never shifted to the owner or driver. The evidence led was inadequate for the onus to shift. Therefore, there was no question of any adverse inference against the owner or driver. From the evidence led by the insurance company, this onus never shifted to the owner or driver. The evidence led was inadequate for the onus to shift. Therefore, there was no question of any adverse inference against the owner or driver. Besides, as noted earlier, nothing prevented the insurance company from examining the RTO officials or cross-examining the police officials from whose custody, in all probabilities, the photocopy of the driver's license was secured. All this, coupled with the fact that no prosecution was launched against the driver or the owner for driving/allowing such driving without a license or with a fake license, is sufficient to conclude that the onus never shifted upon the appellant or the driver. 31. The appeals are allowed for all the above reasons, and the direction for "pay and recover" made by the Tribunal in both the impugned orders is set aside. There shall be no order for costs. 32. Civil Applications, if any, do not survive the disposal of the appeals and the same are also disposed of.