JUDGMENT : J.C. DOSHI, J. 1. Since both the First Appeals filed u/s 173 of the Motor Vehicles Act, 1988 (in short “the Act”) arise out of selfsame accident having common judgment and award in M.A.C.P. No.46 of 2013 passed by the learned Motor Accident Claim Tribunal (Aux), Mehsana at Visnagar, they are being disposed of by this common order. First Appeal No.2759 of 2024 is filed by original claimant, whereas First Appeal No.4127 of 2023 is filed by the Insurance Company. 2. The brief facts of the case are as under. 2.1 The deceased Madhuben wife of Rameshbhai Raval was standing nearby the Madhasana DP Bus Station on 15.03.2013 at 15.00 hours. Opponent No.3 driver of the motorcycle bearing Registration No.GJ-090AP-3528 came in rash and negligent manner and dashed his motorcycle with Madhuben and caused the road accident which resulted into death of Madhuben. Hence, the claimants have filed claim petition before the learned Tribunal which came to be partly-allowed. Hence, these appeals. 3. Heard learned advocate Mr.Nishit Bhalodi for the claimants, learned advocate Mr.Nitesh Jain for driver and owner of the offending vehicle and learned advocate Ms.Kirti Pathak for the Insurance Company. 4. Learned advocate Mr.Nishit Bhalodi after arguing to some extent withdraws First Appeal No.2759 of 2024. Accordingly, the appeal stands disposed of as withdrawn. 5. As far as appeal of Insurance Company is concerned, learned advocate Ms.Kirti Pathak submits that the driver of the offending vehicle was not holding any driving licence which could be culled out from the charge-sheet at Exhibit-27. It is also submitted that police authority after investigating into offence charged driver of the offending vehicle with offence under the Act for not holding valid and effective driving licence on the day of accident. Effectively, putting such charge proves that driver of offending vehicle was not holding valid and effective driving licence. She would further submit that the Insurance Company has issued notice to the driver and owner of the of the vehicle to produce driving licence at Exhibit-55 to 59 but it was not complied by the opponent Nos.1 and 3. She would further submit that to support the contention of non holding of the driving licence at the time of accident, the Insurance Company has also examined its officer at Exhibit-45. She would further submit that to support the contention of non holding of the driving licence at the time of accident, the Insurance Company has also examined its officer at Exhibit-45. She would submit that in such a way by leading evidence the Insurance Company has proved its defense that at the time of road accident driver of the offending vehicle was not holding valid and effective driving licence. This factual aspect proved breach of terms and conditions of the policy and as such exonerates Insurance Company from liability to pay compensation for and on behalf of the owner. She would further submit that learned Tribunal has committed error in holding that in application under Section 163-A of the Motor Vehicle Act, 1988 the Insurance Company cannot raise defense available under Section 149 of the Act. Therefore, she submits that learned Tribunal erred in fastening the liability upon the Insurance Company. 5.1 In support of her submissions, learned advocate Ms.Pathak has referred to the following judgments : (i) Bhuwan Singh vs. Oriental Insurance Company Limited and another – 2009 (5) SCC 136 . (ii) United India Insurance Company Limited vs. Gian Chand and others – 1997 (7) SCC 558 . (iii) United India Insurance Company Limited vs. Rakesh Kumar Arora and others – 2008 (13) SCC 298 . (iv) National Insurance Company Limited vs. Brij Pal Singh and another – 2002 ILR ALL (3) 778. (v) Mahmad Rafik Munnebhai Ansari vs. Gujarat State Road Transport Corporation, being First Appeal No.3173 of 2021 along with other First Appeal. 5.2 Upon above submissions, she would submit to allow the first appeal filed by the Insurance Company and to exonerate it. 5.3 Alternatively, she submits that for breach of terms and conditions of the policy since claimant is third party, order of pay and recover may be passed. 6. In reply, learned advocate Mr.Nishit Bhalodi submits that learned Tribunal has not committed any error much less error of understanding the facts and law. He submits that therefore the appeal of the Insurance Company be dismissed. 7. Needless to state that unless and until the breach is established, the Insurance Company cannot escape from the liability to pay the amount of compensation. He submits that therefore the appeal of the Insurance Company be dismissed. 7. Needless to state that unless and until the breach is established, the Insurance Company cannot escape from the liability to pay the amount of compensation. If we examine the liability in background of arguments canvassed by learned advocate Ms.Kirti Pathak, she mainly relied upon the certain sections of Motor Vehicle Act, 1988 stated in the charge-sheet at Exhibit-27 and the deposition of the officer of the Insurance Company at Exhibit-45 to submit that the driver of the offending vehicle was not holding valid and effective driving licence on the day of the accident. According to this Court, merely making allegations in the charge-sheet for not holding the driving licence would per se not sufficient to establish that the driver was not holding the driving licence of the offending vehicle at the relevant point of time. As far as deposition of officer of the Insurance Company is concerned, he is not a specialized person who can give opinion without any evidence on record to say that driver of the offending vehicle was not holding any driving licence. It is settled principle of law that the Insurance Company is required to discharge the burden by leading necessary evidence to prove its defense that the driver of the offending vehicle was not holding any valid and effective driving licence within knowledge of the owner. As such, the Insurance Company failed to establish that the owner of the offending vehicle was knowing that the driver of the offending vehicle was not holding driving licence and yet he has allowed the driver to drive the vehicle. According to this Court, the Insurance Company has failed to establish breach of the terms and conditions of the policy. The evidence which learned advocate Ms.Pathak referred to are insufficient to discharge the burden. 8. According to this Court, the Insurance Company has failed to establish breach of the terms and conditions of the policy. The evidence which learned advocate Ms.Pathak referred to are insufficient to discharge the burden. 8. In case of Skandia Insurance Company Limited vs. Kokilaben Chandravadan – (1987) 2 SCC 654 , the Hon’ble Supreme Court has held that : “When the insured had handed over vehicle to be driven by licensed driver and even if the licensed driver on his own and because of his negligence had allowed an unlicensed Cleaner to drive the vehicle it could not be said that there was any breach committed by the insured, so as to attract the exclusion clause in favour of the Insurance company as contemplated under Section 96 (2) (b) of the Motor Vehicles Act, 1939. In paragraph 14 of the Report it was observed that: "The word 'breach' in the expression "breach of a specified condition of the policy' in Section 96(2) (b) is of great significance. 'Breach' means infringement or violation of a promise or obligation'. This induces an inference that the violation or infringement on the part of the promisor must be willful infringement or violation, sub- clause (ii) of clause (b) of Section 96(2) enjoins the insurer to establish that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is 'guilty' of the breach of the promise that the vehicle will be driven by a licensed driver. The insurer cannot escape from the obligation to identify the insured when some mishap occurs by some mischance. When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of the licensed driver, with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach.” 9. In case of United India Insurance Company Limited vs. Lehru – 2003 ACJ 611 (SC), the Hon’ble Apex Court has held that : “17. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. In case of United India Insurance Company Limited vs. Lehru – 2003 ACJ 611 (SC), the Hon’ble Apex Court has held that : “17. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owners to make enquiries with RTO's, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2) (a)(ii). The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia 's Sohan Lal Passi 's and Kamla 's case. We are in full agreement with the views expressed therein and see no reason to take a different view.” 10. The issue has been examined by Larger Bench of Hon’ble Supreme Court in case of National Insurance Company Limited vs. Swaran Singh – 2004 ACJ 1 (SC). It has been held as under : “85. 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's case (supra), the matter has been considered at some details. In Lehru's case (supra), the matter has been considered at some details. 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 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 the owners be absolved from any liability whatsoever. We would be dealing in some details with this aspect of the matter a little later. xxx xxx xxx 92. So far as the purported conflict in the judgments of Kamla (supra) and Lehru (supra) is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case. 93. The court, however, in Lehru (supra) must not read that an owner of a vehicle can under no circumstances has any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case.” 11. In Rishi Pal Singh vs. New India Assurance Company Limited – 2022 ACJ 1868 , the Hon’ble Apex Court after referring to above judgments, in para 10 held as under : “10. The owner of the vehicle is expected to verify the driving skills and not run to the licensing authority to verify the genuineness of the driving license before appointing a driver. Therefore, once the owner is satisfied that the driver is competent to drive the vehicle, it is not expected from the owner thereafter to verify the genuineness of the driving license issued to the driver.” 12. In view of the above, it is the liability of the Insurance Company to prove that the owner of the vehicle despite having knowledge that the driver is unlicenced permitted the driver to drive the vehicle. The duty of the owner is to verify only driving skill of the driver of the offending vehicle. In view of the above, it is the liability of the Insurance Company to prove that the owner of the vehicle despite having knowledge that the driver is unlicenced permitted the driver to drive the vehicle. The duty of the owner is to verify only driving skill of the driver of the offending vehicle. In present case, the Insurance Company has failed to establish that the driver of the offending vehicle did not have skill to drive the offending vehicle. 13. Learned advocate Mr.Nitesh Jain for the driver and owner of the offending vehicle submits that the driver has been acquitted in Criminal Case No.285 of 2013 by the learned J.M.F.C., Vadnagar. 14. In view of the above submission of learned advocate appearing for the driver, even making some allegations in the charge-sheet for not holding the driving licence on the day of the accident does not survive. 15. As far as the judgments upon which learned advocate Ms.Pathak relied upon are concerned, in case of Bhuwan Singh (supra), the driver of the offending vehicle himself was the claimant. In this fact situation, the Hon’ble Apex Court held that driver must know that whether he is holding licence or not. This judgment would not help the case of the appellant. In case of Gian Chand (supra), it was observed that owner of the vehicle knowing that unlicenced driver was driving the vehicle. Again the facts of this case does not avail any assistance to the case of the appellant. In case of Rakesh Kumar Arora (supra), the driver was 15 years old which indicates that he was not legally entitled to drive the vehicle. This judgment would also not avail any benefit to the case of the appellant – Insurance Company. In Brij Pal Singh (supra), it has been held by Allahabad High Court that burden is upon the insurer to lead evidence that the driver was not holding driving licence and if such burden is discharged, third party would not be affected but order of pay and recover can be passed. Again this order in given facts does not render any assistance to the case of the Insurance Company. In case of Mahmad Rafik Munnebhai Ansari (supra), the Insurance Company by leading evidence proved non-existence of licence in background of issue of composite negligence. Again this order in given facts does not render any assistance to the case of the Insurance Company. In case of Mahmad Rafik Munnebhai Ansari (supra), the Insurance Company by leading evidence proved non-existence of licence in background of issue of composite negligence. Again this judgment would not be of any benefit to the case of the Insurance Company. 16. In wake of the above reasons, the appeal of the Insurance Company sans merit and it is, accordingly, dismissed. Registry is directed to send back the record and proceedings to the concerned Tribunal, forthwith.