JUDGMENT : RADHAKISHAN AGRAWAL, J. 1. As both these appeals filed by the owner arising out of the same accident, therefore, they are heard together and are being disposed of by this common judgment. 2. Brief facts of the case are that on 07.09.2013, deceased persons namely Yaduvansh Singh and Sev Kumar went to Ambikapur, P.G. college to attend function and after attending function, they were returning to their village-Phulchuhi on bike and on way near village Sundarpur, the offending vehicle bus (transport vehicle) bearing registration CG-13-Q-0214 being driven by its driver/non-applicant No. 1 Birju Ram in a rash and negligent manner, dashed the deceased persons, as a result of which, they died on the spot on account of injuries received by them. At the time of accident, the offending vehicle was owned by non-applicant No. 2 (appellant herein) and insured with non-applicant No. 3/the New India Insurance Company Limited. 3. On account of death of deceased persons-Yaduvansh and Shiv Kumar separate claim petitions have been filed by the legal representatives/claimants under Section 166 of the Motor Vehicles Act claiming compensation of Rs. 31,62,000/- (in MACT No. 120/2013) and Rs. 33,38,000/- (in MACT No. 121/2013) under various heads. The Tribunal, considering the evidence led by the parties, awarded a compensation of Rs. 10,77,000/- in MACT No. 120/2013 and Rs. 10,23,000/- in MACT No. 121/2013 with interest @ 7% per annum from the date of application till realization while fastening the liability on the owner/driver of the offending vehicle with a further direction to the Insurance Company to pay the compensation amount to the claimants first and then recover the same from the owner/driver of the offending vehicle. 4. Being aggrieved by the impugned award dated 30.11.2015, non-applicant No. 2/owner of the offending vehicle has filed these appeals challenging the legality and validity of the impugned award. 5. Learned counsel for the appellant/owner submits that the impugned award passed by the learned Claims Tribunal fastening liability upon the owner/driver of the offending vehicle is perverse, illegal & erroneous. He further submits that as per the statement of NAW-1 Ali Raza/owner of the offending vehicle, non-applicant No. 1-Birju Ram/driver of the offending vehicle was having valid and effective driving licence to drive the offending vehicle and his licence was valid upto 09.03.2015 for driving transport vehicle along with other class of vehicle. He further submits that as per the statement of NAW-1 Ali Raza/owner of the offending vehicle, non-applicant No. 1-Birju Ram/driver of the offending vehicle was having valid and effective driving licence to drive the offending vehicle and his licence was valid upto 09.03.2015 for driving transport vehicle along with other class of vehicle. He also submits that the finding of Claims Tribunal is merely based on the report of the Commissioner in which Commissioner has recorded the evidence of Rajesh Kumar Bhargav, Staff of RTO, Raipur, without providing any opportunity of hearing to the parties and as per the statement of evidence of Rajesh Kumar Bhargav, Staff of RTO, Raipur, all the entries are computer generated and further according to his statement, driving licence of non-applicant No. 1 Birju was issued on 17.05.1988. The statement of Rajesh Kumar Bhargav further reveals that the record of the same was not available with the office of RTO, Raipur. Therefore, the report of the Commissioner is not reliable. It was next submitted by him that the report of the Commissioner is also not reliable on the ground that on 11.09.2015, when the matter was fixed for examination/cross-examination of witness Rajesh Kumar Bhargav, the Commissioner has, without issuing any notice and further without informing to the parties or their Advocates, declared ex parte on 11.09.2015. The Commissioner report indicates that notice has been issued to the respective parties to appear before the office of RTO, Raipur, however, in the record of the Commissioner as well as that of record of the Claims Tribunal, no such notice is available. It is further contended that it is the primary duty of the Insurance Company to prove the guilty of negligence of owner, but the Insurance Company has failed to discharge its duty. The learned Claims Tribunal has, only on the basis of report of the commissioner, which was based on the statement of Rajesh Kumar Bhargav and the same has not been examined or cross-examined by the parties, recorded a finding that there was breach of policy conditions by the owner of the offending vehicle at the time of accident and accordingly fixed the liability upon the appellant/owner, which is per se illegal, therefore, it is prayed that the said finding of the Tribunal may be set aside. In support of his contention, he has placed reliance on the decision of Supreme Court in the matter of Lal Chand vs. Oriental Insurance Co. Ltd. (2006) 7 SCC 318 6. Learned counsel for the Insurance Company submits that as per the statement of Rajesh Kumar Bhargav, an employee working in the Office of RTO Raipur, the driver of the offending vehicle was not having a valid and effective driving licence to drive the offending vehicle at the time of accident. He also submits that the Insurance Company has already deposited the entire amount of compensation before the concerned claims Tribunal and the same has been disbursed to the claimants. He further submits that the finding of the Tribunal with regard to pay and recover is just and proper which needs no interference by this Court. 7. I have heard learned counsel for the parties and perused the record carefully. 8. Now the question that arises for consideration as to whether on the date of accident, driver of the offending vehicle was not possessing valid and effective driving licence? 9. Before the learned Claims Tribunal, owner of the offending vehicle was examined as NAW-1 Ali Raza on 17.11.2014 who has categorically stated that he has submitted all the relevant documents of offending vehicle before the learned claims Tribunal which were exhibited as Exs.D-1C to D-5C, i.e. registration certificate, fitness certificate, Insurance Policy, permit and driving licence of driver. He has also specifically stated that at the time of accident, driver of the offending vehicle was having valid and effective driving licence (Ex.D-5C) which was issued from the office of RTO Raipur. 10. Further, order sheet dated 17.03.2015 of MACT shows that an application on behalf of Insurance Company was moved praying for appointment of commissioner to record the statement of RTO, Raipur or its sub-ordinate staff which was allowed and the Commissioner was appointed and after that the Commissioner gave information in writing to RTO Officer, Raipur to appear on 12.06.2015 along with driving licence of the driver, as it appears from the order sheet dated 04.06.2015 and thereafter on 12.06.2015, it was mentioned that notice issued to RTO has returned un-served, therefore, no proceedings could be taken place. Again on 22.08.2015, notice has been issued to the concerned RTO and Advocates for their appearance before the concerned RTO on 11.09.2015. Again on 22.08.2015, notice has been issued to the concerned RTO and Advocates for their appearance before the concerned RTO on 11.09.2015. It is pertinent to mention here that from perusal of the records, it appears that in place of date 22.08.2015, the date 07.09.2015 was overwritten in the record of Claim Case No. 120/2013, whereas in the record of Claim Case No. 121/2013, the said date was shown as “22.08.2015” and this apart, two signatures were shown in the said order sheet, but it is not specifically mentioned that by whom the said signatures were got done. A report of the Commissioner dated 21.09.2015 shows that notices were issued to Advocates of the parties for their appearance before the Office of RTO on 11.09.2015 for recording the statement of RTO or its sub-ordinate staff, but on that day, neither of the parties nor their Advocates was present. It is also pertinent to mention here that no copy of notice, purported to have been issued to the parties and their Advocates, has been made available on record nor mentioned in any order sheet that notice was issued to the concerned parties or their Advocates. Despite that the Commissioner declared them as ex parte and recorded the statement of one Rajesh Kumar Bhargav, who, based on entry in the computer, has stated that driving licence of the driver of offending vehicle has been issued on 17.05.1988 which was valid upto 25.10.2011 and it was not renewed from 26.10.2011 to 25.09.2013 and further stated that from 26.09.2013 till 09.03.2015, the said licence was renewed, as per computer data available from its office. However, he has stated that the record of 17.05.1988 is not available in his office and he has submitted the computerized entry with respect to licence vide Ex.D-1. 11. A perusal of above evidence coupled with the respective order sheets of the Tribunal would clearly reveal that the learned Claims Tribunal has proceeded merely on the basis of report of Commissioner and statement of Rajesh Kumar Bhargav and accordingly fixed the liability upon the owner, but a bare perusal of the record would clearly reveal that the learned claims Tribunal has not given proper opportunity to the parties to examine and cross-examine themselves and witnesses. 12. 12. At this stage, it would be apt to mention Sections 137 & 138 of the Indian Evidence Act, 1872, which says Examination in Chief and Order of Examinations, the same being relevant are reproduced hereunder: “137. Examination-in-chief - The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-Examination - The examination of a witness by the adverse party shall be called his cross-examination. Re-Examination - The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. 138. Order of examinations - Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination - The re-examination shall be directed to the explanation of the matters referred to in cross-examination and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.” 13. A perusal of above provision contained in Section 137 of Indian Evidence Act, it provides that examination of a witness subsequent to cross-examination, by the party who called the witness, shall be called for re-examination of witness. As provided in Section 138 of the Indian Evidence Act, witness shall be first examined-in-chief and then, if the adverse party so desires shall be cross-examined, and thereafter if the party calling him so desires, the said witness shall be re-examined, however, re-examination shall be directed to the explanation of matters referred in cross-examination and new matter can be introduced in re-examination only by permission of the Court and in such eventuality adverse party may further cross-examine the witnesses upon the new matter. 14. 14. However, in the instant case, it is clear that no sufficient opportunity has been afforded by the Tribunal to the parties to examine or cross-examine the witnesses as per the provisions of Sections 137 & 138 of Indian Evidence Act, no date was properly informed to the parties for their appearance before the office of RTO, Raipur and further perusal of Ex.D-5(C) [driving licence of driver of offending vehicle], it is clear that it was issued by Regional Transport Authority, Raipur on 17.05.1988 and was valid till 09.03.2015 for driving the LMV, MCWG and TRANS, meaning thereby on the date of accident, driver of the offending vehicle was having valid and effective and driving licence, therefore, in view thereof, the statement of Rajesh Kumar Bhargav has no evidentiary value for want of examination or cross-examination of the parties and their witnesses. 15. Further, in the matter of Lal Chand (supra), the Supreme Court has held in paragraphs 10 to 12 which read as under: “10. Another decision rendered by a three Judges Bench of this Court in the case of National Insurance Co. Ltd. vs. Swaran Singh and Others, 2004 (3) SCC 297 , can also be usefully referred to in the present context. This Court in Para-110 of this judgment gave the summary of their findings to the various issues as raised in those petitions. We are concerned only with sub-para (iii) of paragraph 110. The said sub-para (iii) reads thus: (SCC p. 341) “110. (iii) The breach of policy condition e.g. Disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (1)(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.” 11. 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.” 11. As observed in the above paragraph, the insurer, namely the Insurance Company, has to prove that the insured, namely the owner of the vehicle, 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 point of time. 12. We respectfully agree and following the above ruling, we allow the appeal filed by the owner of the vehicle and absolve him from any liability as ordered by the High Court. It is now brought to our notice that the entire compensation has already been deposited and the same has been withdrawn by the claimants. No other point has been urged by both sides. We, therefore, allow the appeal and order no costs.” 16. In the light of above judgment, if the Insurance Company, in this case, was raising a specific plea regarding breach of policy conditions, then it is the primary duty of the Insurance Company to prove the guilty of negligence of owner, but the Insurance Company has failed to discharge its duty. In that view of the matter and considering the document i.e. Ex.D-5C (copy of driving licence of driver of offending vehicle), it is held that at the time of accident, driver of the offending vehicle was possessing valid and effective driving licence to drive the offending vehicle and the finding recorded by the Tribunal with respect to breach of policy conditions by the owner of the offending vehicle resulting into fixing the liability upon the owner/driver of the offending vehicle is hereby set aside. It is further held that the Insurance Company is liable to indemnify the compensation to the claimants as awarded by the Tribunal. It is already brought to our notice, during course of arguments by the learned counsel for the Insurance Company, that the entire compensation has already been deposited by the Insurance Company and the same has been disbursed to the claimants. 17. It is already brought to our notice, during course of arguments by the learned counsel for the Insurance Company, that the entire compensation has already been deposited by the Insurance Company and the same has been disbursed to the claimants. 17. In the result, both the appeals filed by the owner of the offending vehicle are allowed and the owner of the offending vehicle is exonerated to satisfy the compensation as awarded by the Tribunal. No order as to costs.