JUDGMENT : 1. The appellants/non-claimants No.1 and 2 have preferred these misc. appeals under Section 173 of the M.V. Act, 1988 assailing the validity of the judgments and awards dated 21.12.2016 passed by learned Judge, Motor Accident Claims Tribunal, Pali (‘Tribunal’) in MAC Case Nos.230/2015 & 149/2015 respectively, whereby the learned Tribunal partly allowed the claim petitions filed by respective claimants and the liability to satisfy the award was fastened upon the appellants/non-claimants No.1 and 2 while exonerating the non-claimant No.3 i.e. insurance from its liability to satisfy the award. 2. Briefly stated, the facts of the case are that the respondents/ claimants filed claim petitions claiming compensation under Section 163-A and 140/166 of the M.V. Act, 1988 respectively on account of death of Ms. Chhotu @ Chhotu Kanwar and Sh. Guman Singh, who lost their life in vehicular accident which took place on 15.05.2015. The respondents/claimants in MAC Case No.230/2015 claimed compensation of Rs.4,34,000/-, whereas in MAC Case No.149/2015, the respondents/claimants claimed compensation of Rs.75,22,000/- on account of death of their sole breadwinner Sh. Guman Singh. In the claim petitions, it was inter-alia stated that on 15.05.2015, deceased Ms. Chhotu @ Chhotu Kanwar and deceased Guman Singh along with their relatives at about 05:30 pm were coming from Jodhpur to Pali on NH-65 in a Scorpio Vehicle bearing registration number RJ-22-TA-2122. When the said vehicle reached near Nimbali Toll Booth, the driver of the Scorpio vehicle lost his control over the vehicle and it dashed into a blue bull (‘uhy xk;’) and turned turtle. The said accident took place due to negligence on the part of the driver of the offending vehicle, wherein both the deceased and other occupants sustained injuries. Ms. Chhotu @ Chhotu Kanwar died during the course of treatment and Sh. Guman Singh died on the spot. An FIR of the incident was lodged at Police Station- Rohat, District Pali being FIR No.98/2015. 3. On receipt of the summons, the non-claimants No.1 and 2, appellants herein, filed reply to the claim petitions while denying the facts stated therein for want of knowledge. It was stated that there was no fault on the part of driver of the offending vehicle and the accident occurred all of sudden, as a Blue Bull came on the road and dashed with the Scorpio, as a result of which the vehicle turned turtle. It was stated that there was no fault on the part of driver of the offending vehicle and the accident occurred all of sudden, as a Blue Bull came on the road and dashed with the Scorpio, as a result of which the vehicle turned turtle. It was stated that the vehicle was insured with non-claimant No.3 and, therefore, the liability if any, was of the insurance company. 4. The non-claimant No.3 i.e. insurance company also filed its reply while refuting the claim laid by the claimants. An objection with regard to driver of offending vehicle not having valid and effective licence was raise. Apart from the above, an objection with regard to fitness and permit was also taken and it was pleaded that on account of violation of the conditions of the policy, the insurance company was not liable to pay the compensation. A prayer for rejection of the claim petitions was made. 5. On the basis of pleadings of the parties, the learned Tribunal framed four issues. In support of their claim petitions, the claimants examined their witnesses and also exhibited certain documents. On behalf of non-claimant No.3 insurance company, NAW.1 Rajendra Kumar was examined and five documents were exhibited in defence. 6. The learned Tribunal thereafter heard the arguments and after considering and scrutiny of the evidence led by the respective parties vide impugned judgments and award dated 21.12.2016 partly allowed the claim petitions and awarded compensation of Rs.5,30,000/- in MAC Case No.230/2015 and Rs.11,62,600/- in MAC Case No.149/2015 respectively along with interest @ 9% p.a. from the date of filing the claim petition. The learned Tribunal exonerated the non-claimant No.3 insurance company from its liability to pay the compensation and the liability was fastened upon the appellants, however, the learned Tribunal granted liberty to the insurance company to first pay the compensation and thereafter recover the same from the non-claimants No.1 and 2/appellants herein. 7. In both the misc. appeals, a Coordinate Bench of this Court after hearing the learned counsel for the appellants and respondent insurance company, vide order dated 05.12.2017 stayed recovery from the appellants by the respondent insurance company pursuant to impugned award dated 21.12.2016 passed by the learned Tribunal till decision of the appeals. 8. Learned counsel for the appellants submits that the learned Tribunal has erred in fastening the liability upon the appellants and exonerating the insurance company from its liability. 8. Learned counsel for the appellants submits that the learned Tribunal has erred in fastening the liability upon the appellants and exonerating the insurance company from its liability. Learned counsel for the appellants submits that the liability to prove that a valid permit was not there, was of the insurance company, which the insurance company failed to prove, however, the learned Tribunal has committed error while deciding the Issue No.2 against the appellants. Learned counsel for the appellants further submits that the vehicle in question was used for personal work and was plied in home district, therefore, there was no need to have a tourist permit, however, the learned Tribunal has not considered this aspect of the matter and wrongly exonerated the insurance company from its liability. Learned counsel for the appellants further submits that the RTO concerned has not produced the copy of permit despite issuance of notice by the insurance company. Learned counsel for the appellants submits that onus to prove that there was valid permit or not, was upon the insurance company, which the insurance company failed to prove and therefore, the learned Tribunal erred in exonerating the insurance from its liability to pay the compensation. Learned counsel for the appellants further submits that the alleged notices dated 17.05.2016 E.A/1 and A/2 were issued after one year of the accident to the owner and the RTO. 9. Learned counsel for the appellants relied upon judgments passed in National Insurance Co. Ltd. v. Yogesh & Ors. : 2010 (2) WLN 181 (Raj.) and in National Insurance Company Limited v. Savitri Devi & Ors. : 2017 (1) RAR 128 (Raj.). Learned counsel for the appellants submits that mere issuance of notice to the owner and driver of the offending vehicle to produce driving licence or permit would neither enable the insurance company to prove its objection nor any adverse inference can be drawn against the insured and the insurance company has to prove by production of authoritative documents duly testified by the examination of the officials of the Transport Department that owner did not have the valid permit. 10. On the other hand, learned counsel appearing for the respondent No.1 Insurance Company submits that conditions of the policy were violated, inasmuch as the vehicle was being plied without having a valid permit and, therefore, the learned Tribunal was justified in exonerating the insurance company from its liability. 11. 10. On the other hand, learned counsel appearing for the respondent No.1 Insurance Company submits that conditions of the policy were violated, inasmuch as the vehicle was being plied without having a valid permit and, therefore, the learned Tribunal was justified in exonerating the insurance company from its liability. 11. I have considered the submissions made by counsel for the parties at length and have perused the material available on record and the judgments cited at bar. 12. In the case of Yogesh (supra), the Hon’ble Division Bench of this Court has held as under: “9. Upon appeal filed by the claimants, while relying upon the judgment of the Supreme Court in the case of Narcinva V. Kamat & Another Vs. Alfredo Antonio Doe Martins & Others, reported in (1985) 2 SCC 574 , learned Single Judge of this Court held that insurance company has not established by legal evidence that the driver of the offending vehicle was not holding valid driving licence on the relevant date of the accident. Learned Single Judge has observed in the judgment that the learned Tribunal has committed error in arriving at the finding that the insurance company has sufficiently discharged its onus to prove that the driver Hanif Khan was not having a valid driving licence at the time of the accident; but, this finding is based upon wrong appreciation of material on record and deserves to be set aside. The issuance of notices to the owner and driver of the offending vehicle by the insurance company to produce the driving licence would neither enable the insurance company to prove its objections nor any adverse inference can be drawn against the insured. The driving licence is issued by the State authority i.e., the concerning Transport authority and it is the onus of the insurance company to prove its case of the insured committing breach of the terms and conditions of the insurance policy by allowing the vehicle to be driven by a person not having a valid driving licence by leading relevant evidence by way of production of authoritative documents duly testified by examination of some official of the department. But, these facts are not in existence in the present case. 10. But, these facts are not in existence in the present case. 10. In our opinion, also, the learned Single Judge has rightly followed the verdict of the Hon'ble Supreme Court, reported in (1985) 2 SCC 574 , in which, in para 12 and 14, following proposition has been laid down : "12. It is contended on behalf of the insurance company that the second appellant did not have a valid driving licence. It is the insurance company which complains that there has been a breach of one of the important terms of the contract of insurance as evidenced by the policy of insurance (the whole of which was not shown to us) and that the second appellant who was shown to be driving the vehicle at the relevant time, did not have a valid driving licence to drive the pick-up van. The insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance. If a breach of a term of contract permits a party to the contract to not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led. The language and the format in which issues Nos. 7 and 8 have been cast by the Tribunal clearly casts the burden of proof on the insurance company. Not an iota of evidence has been led by the insurance company to show that the second appellant did not have a valid driving licence to drive the vehicle. Mr. J. Sharma, learned counsel who appeared for the appellant urged that a question was asked in the cross- examination of the second appellant whether he would produce his driving licence, and that as he failed to produce the same, an adverse inference must be drawn against him that he did not have a valid driving licence. Mr. J. Sharma, learned counsel who appeared for the appellant urged that a question was asked in the cross- examination of the second appellant whether he would produce his driving licence, and that as he failed to produce the same, an adverse inference must be drawn against him that he did not have a valid driving licence. The High Court has recorded a finding in this behalf which may first be extracted in its own words : Mr Cardoso's contention proceeds on a misreading of clause (b) indented above, which brings to the forefront that the person driving the vehicle must be 'in the insurer's employ' and further, being in such employment was driving the vehicle on the order of the insurer or with his permission. In this case, the very first premise is missing for the simple reason it is not even the second appellant's case that he was ever in the employment of the first appellant firm but was at all material times a partner thereof. Even if the first appellant held a valid driving licence, clause (b) wouldf not absolve him from liability for payment, if the van had been driven by him at the relevant time. The High Court took no notice of the fact that the van belonged to the firm and every partner for that reason would be the owner of the property of the firm because the firm is not a legal entity in the sense in which the company under the Companies Act has a juristic personality. Firm is a compendious name for the partners. And the High Court limited its enquiry to ascertain whether the first part of the condition is satisfied viz. Whether the driver was in the employ of the insured. It completely overlooked the second clause that the driver, appellant 2 was driving with the permission of the insured, the firm in this case. Two clauses are disjointed by a disjunctive 'or'. On a proper analysis and interpretation of the term of contract of insurance, the insurance company cannot escape the liability if (a) the insured himself was driving the vehicle or (b) the driver is insured or (c) he is driving with his permission. The words 'with his permission' does not qualify the expression 'is in the insured's employ'. The clause can be properly read thus : any person with insured's permission'. The words 'with his permission' does not qualify the expression 'is in the insured's employ'. The clause can be properly read thus : any person with insured's permission'. This ought to be so because a friend can always be permitted if he has a valid driving licence to drive a friend's car. If in every such situation where the person driving the vehicle is not shown to be the insured himself or someone in his employment, the contract of insurance would afford no protection and the insurance company having collected the premium would wriggle out of a loophole. Therefore, the proper construction of this condition must be to read it as stated hereinbefore. …….. ……… ……… …….. ……… ……… 14. The last question is whether he had a valid driving licence. The High Court has not recorded a clear cut finding on this point. The finding of the Tribunal is more evasive than the one by the High Court. Mr. Sharma did not dispute that the second appellant had a driving licence. His grievance is that he having failed to produce the same when called upon to do so in the cross-examination, an adverse inference be drawn against him that he did not have a valid licence to drive a pick-up van. The submission fails to carry conviction with us. The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company to wriggle out its liability under the contract of insurance. Further the R.T.A. Which issues the driving licence keeps a record of the licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate its allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company." 11. In this view of the matter, we find that there is no substance in the argument of the learned counsel appearing on behalf of the appellant insurance company that the learned Single Judge has committed any error while reversing the finding of the learned Tribunal on issues No.3 and 4.” 13. In this view of the matter, we find that there is no substance in the argument of the learned counsel appearing on behalf of the appellant insurance company that the learned Single Judge has committed any error while reversing the finding of the learned Tribunal on issues No.3 and 4.” 13. In the case of NIC v. Savitri Devi (supra), a Coordinate Bench of this Court while relying upon the judgment passed in the case of Yogesh (supra) has held that mere non-production of driving licence in investigation and issuance of notice to owner for production of driving licence of driver, is not sufficient to discharge the burden of proof lack of driving licence. The relevant extract of the judgment passed in the case of Savitri Devi (supra) reads as under: “13. So far as the issue raised by the appellant Insurance Company regarding its liability to pay compensation is concerned, the plea raised pertains to lack of valid & effective driving licence with the driver of the offending Truck. The owner and driver of the vehicle remained ex-parte. The burden to prove the said issue about the violation of Policy condition/lack of valid driving licence has been squarely on the appellant Insurance Company. The Insurance Company on its part got recorded the statement of two witnesses and exhibited certain documents including Ex.A/2 to Ex.A/7. Ex.A/2 pertained to notice issued by the Advocate of the appellant Insurance Company to the owner & driver of the vehicle for producing the licence. The owner of the vehicle gave a response Ex.A/6 inter alia indicating that the vehicle was being driven by Laxman Singh at the time of accident, the driver after the accident left the service and has not given him his driving licence. The driving licence is with the driver and, therefore, he was not in a position to produce the same. Document Ex.A/7 pertained to investigation report by one Balraj Pabbi inter alia indicating that he has made investigation regarding the driving licence of the driver and that the driver had no driving licence. 14. The plea taken by the owner of the vehicle regarding his inability to produce the licence as the driver has already left his service, cannot lead to a conclusion that the driver was not in possession of a valid driving licence. 14. The plea taken by the owner of the vehicle regarding his inability to produce the licence as the driver has already left his service, cannot lead to a conclusion that the driver was not in possession of a valid driving licence. The investigation report produced by the Insurance Company also is ipse dixit inasmuch as the investigator has simply gone through the record of the criminal case which pertained to the accident and as the licence was not produced in those proceedings, he has recorded his conclusion that the driver was not in possession of a valid driving licence, which investigation report is laconic inasmuch as the investigator has not cared to even contact the driver/owner of the vehicle in this regard. 15. In view thereof, the burden which was on the appellant Insurance Company to prove that the vehicle was driven by the driver without valid/effective driving licence has not been discharged by the appellant Insurance Company. The Division Bench of this Court in the case of Yogesh (supra) has held that mere issuance of notice to the owner/driver is not sufficient to discharge the burden of the Insurance Company to prove lack of driving licence. In view thereof, the submissions made by the appellant Insurance Company regarding lack of valid driving licence with the driver of the Truck cannot be accepted and the finding recorded by the Tribunal in this regard does not call for any interference.” 14. This Court finds that the learned Tribunal has framed as many as four issues, which reads as under: 1- vk;k vizkFkhZ la- ,d dSyk'kiqjh us fnukad 15-05-2015 dks fuEcyh Vksd ukds ls FkksM+k igys okgu LdkWfiZ;ks la[;k vkj-ts-&22&Vh-,-&2122 dks mlds Lokeh vizkFkhZ la- nks f'koyky ds fu;kstu ,oa fu;a=.k esa jgus gq, rst xfr o ykijokgh ls pykdj nq?kZVuk dkfjr dh] ftlesa mDr okgu LdkWfiZ;ks la[;k vkj-ts-&22&Vh-,-&2122 esa lokj e`rdk NksVw mQZ NksVw daoj ds pksVsa dkfjr gksdj muls mldh e`R;q gqbZ\ 2- vk;k vizkFkhZ la- rhu chek daiuh vius tokc esa of.kZr izkFkfed vkifRr;ksa o vfrfjDr dFkuksa ds vk/kkj ij izLrqr bl izfrdj izkfIr ds izkFkZuk i= esa izkFkhZx.k dks izfrdj vnk;xh ds vius nkf;Ro ls eqDr gksus ;ksX; gS\ 3- vk;k izkFkhZx.k izfrdj izkfIr gsrq izLrqr bl izkFkZuk i= esa pkgh xbZ izfrdj jkf'k ;k vU; dksbZ U;k;laxr izfrdj jkf'k vizkFkhZx.k ls izkfIr ds vf/kdkjh gS] ;fn gka rks fdl dnj\ 4- vuqrks'k\^^ 15. The learned Tribunal after considering the evidence available on record proceeded to decide Issue No.1 in favour of claimants. The issue No.2 was decided partially in favour of Insurance Company and issues No.3 and 4 were decided in favour of claimants. The learned Tribunal while deciding Issue No.2 has specifically observed that burden to prove that there was no valid permit in favour of vehicle at the time of accident, was upon the insurance company. Upon perusal of the award, it is seen that the insurance company had examined NAW.1 Rajendra Kumar, Assistant Manager of O.I.C. Ltd., who in his statements had deposed that vehicle number RJ-22-TA-2122 was insured with them, however, the owner of the vehicle was not having permit at the time of accident and thus the policy conditions have been violated. The insurance company has led evidence by way of exhibiting notices (Ex.A/1 and Ex.A/2) along with their receipts while submitting that despite said notices being served upon the owner of the vehicle as well as the RTO, the permit of the vehicle was not produced. The learned Tribunal based on the said notices Ex.A/1 and Ex.A/2 has arrived at a conclusion that in absence of permit being placed on record by the owner of the vehicle and by the RTO, a conclusion can be drawn that the insured was not having a valid permit at the time of accident. This Court finds that the insurance company has taken categoric objection that the liability of paying compensation cannot be fastened upon the insurance company for the reason that the owner of vehicle was not having a valid permit and in such a case the onus to prove that owner of vehicle was not having a valid permit at the time of accident, was upon the insurance company, however, the insurance company has not sufficiently discharged its duty that the owner of vehicle was not having a valid permit at the time of accident. This Court also finds that the learned Tribunal has gravelly erred in holding that the owner of vehicle was not having valid permit at the time of accident, as such finding is based upon wrong appreciation of material on record, as simply upon issuance of notice to the owner of the vehicle and the concerned RTO by the insurance company to produce the permit, does not discharge the insurance company from its onus to prove that the owner of vehicle was not having a permit at the time of accident and further no adverse inference can be drawn against the insured. 16. This Court finds that while deciding the Issue No.2, the learned Tribunal after perusing the registration certificate of the offending vehicle has recorded a finding that it was a passenger vehicle and the vehicle was being plied by the owner and driver without a valid permit and thus there was violation of conditions of the policy. The learned Tribunal while deciding the issue No.2 has held as under: ^^---- tgka rd vizkFkhZ chek daiuh }kjk vius tokcnkok esa mBk;h xbZ vU; vkifRr;ksa dk iz'u gS] buds laca/k esa Hkh vizkFkhZ chek daiuh dh vksj ls dksbZ lk{; is'k ugha fd;k x;k gS] ,slh fLFkfr esa vizkFkhZ chek daiuh }kjk tokcnkos esa mBk;h xbZ vU; vkifRr;ksa dks Hkh [kkfjr fd;k tkrk gS] vr% ;g fook|d vkaf'kd :i ls chek daiuh ds fo:) r; fd;k tkrk gSA^^ 17. It is noticed that in the instant case notices (Ex.A/1) and (Ex.A/2) respectively were issued by the insurance company to the RTO and the owner of the offending vehicle on 17.05.2016 i.e. after a year of the accident for production of the valid permit of the offending vehicle. This Court finds that in view of judgment passed by Division Bench of this Court in the case of Yogesh (supra), mere issuance of the notices to the owner/driver and RTO concerned, would not ipso facto exonerate the insurance company from its liability to prove the said issue, whereas the onus was upon the insurance company prove that there was violation of the policy conditions and further to prove by some piece of evidence to demonstrate before the Tribunal that there was no valid permit at the time of accident. In the instant case, the non-claimant No.3 insurance company has utterly failed to lead evidence that the insured was not having a permit at the time of accident. The appellant/owner of the offending in his testimony has denied receipt of any notice, issued by the insurance company to him. 18. This Court is thus of the considered view that the learned Tribunal has committed error while exonerating the insurance company from its liability to pay the compensation, inasmuch as the insurance company has failed to prove the issue No.2 in its favour, as the onus was upon the insurance company. 19. Thus, in view of above discussion and considering the ratio decided by Division Bench of this Court in the case of Yogesh (supra), the instant misc. appeals preferred by the appellants are partly allowed. The finding recorded by the learned Tribunal vide judgments and awards impugned dated 21.12.2016 exonerating the insurance company from its liability, is set aside and no recovery of the compensation amount already paid to the claimants, shall be effected from the appellants. The judgments and awards impugned are modified accordingly. No costs.