JUDGMENT : Satyen Vaidya, J. Both the appeals are being decided together as these arise out of the same award. 2. FAO No.66 of 2018 has been filed by the owner of the vehicle (insured) as the liability to pay compensation has been fastened upon him and FAO No.130 of 2018 is by insurer as learned Tribunal has directed the compensation to be paid by the insurer in the first instance and then to recover the same from the owner (insured). 3. On 26.02.2007 at about 12:15 PM an accident took place near place Malyana on Shimla by-pass road involving car No. HP-35-0333 and truck bearing registration No.HP-14A-1839. The car was being driven by Rajinder Singh Bodh and the truck by Het Ram (hereinafter referred to as “driver”). Rajinder Singh Bodh (hereafter referred to as deceased) succumbed to injuries suffered in the accident. His legal representatives i.e. the mother Smt. Kaushalya Devi, wife Smt. Urmila Bodh and minor son Master Shreshth (hereinafter referred to as “claimants”) filed MAC Petition No.37 of 2007 under Section 166 of Motor Vehicles Act before the Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahar (for short, “the Tribunal”). The cause of accident was allegedly attributed to rash and negligent driving of the driver of the truck. 4. The truck No. HP-14A-1839 was owned by Shri Parveen Dhiman, who is appellant in FAO No.66 of 2018 (hereinafter referred to as “Owner”). 5. The notice in the claim petition could not be served upon the driver and for such reason his name was ordered to be deleted from array of respondents vide order dated 25.06.2010. 6. The owner filed his reply. The contents of claim petition were denied in generality. He disclosed that there was a contract of insurance between him and the Oriental Insurance Company Limited (hereinafter referred to as “insurer”) in respect of truck number HP-14A-1839. The allegations of rash and negligent driving against driver of the truck were denied and as a counter it was alleged that the accident had taken place on account of rash and negligent driving of the deceased. 7. The insurer filed separate reply. The owner was blamed with violation of terms and conditions of the policy of insurance. It was specifically contended that the driver did not possess valid and effective driving license at the time of accident. 8. 7. The insurer filed separate reply. The owner was blamed with violation of terms and conditions of the policy of insurance. It was specifically contended that the driver did not possess valid and effective driving license at the time of accident. 8. The National Insurance Company Limited was also impleaded as one of the respondents being the insurer of car No. HP-35-0333. The said respondent also filed its separate reply, however, its contents need not be noticed here keeping in view the issues involved in these appeals. 9. Learned Tribunal framed the following issues: “1. Whether the deceased Rajinder Singh Bodh died on 26-2-2007 due to rash and negligent driving of driver of vehicle No. HP-14A-1839 near Malyana at Bye Pass road Dhalli Shimla, as alleged? OPP. 2. Whether the petitioners are entitled for compensation, if so to what amount and from whom? OPP. 3. Whether the petition is not maintainable on behalf of petitioners as they are not the legal heirs of the deceased Rajinder? OPR-1. 4. Whether respondent No.3 is not liable to indemnify insured as there is violation of the terms and conditions of the insurance policy? OPR-3. 5. Whether the petition is not maintainable as the driver of the vehicle bearing No. HP-14A-1839 (truck) was not possessing a valid and effective driving licence at the time of accident? OPR-3. 6. Whether the accident had taken place due to rash and negligent driving of the deceased and the petitioners are not entitled for compensation? OPR-3. 7. Whether the petition is not maintainable against respondent No.3 as the deceased cannot be regarded as third party? OPR-3. 8. Whether the petition does not disclose any cause of action against the respondents? OPR-3. 9. Whether the deceased/insured had violated the mandatory terms and conditions of the insurance policy and respondent No. 4 is not liable to pay compensation to the L.Rs of deceased/insured? OPR-4. 10. Whether the petition is not maintainable as the insured/owner-cum-driver of the car No. HP-35A-0333 did not possess a valid and effective driving licence at the time of accident? OPR-4. 11. Relief.” 10. All issues, except issues No.1 and 2, were decided in negative. The petition was allowed vide Award dated 1.8.2011. The claimants were awarded compensation of Rs.28,67,560/- along with interest @ 7.5% per annum from the date of petition till realization. The liability to pay compensation was fastened on the insurer. 11. OPR-4. 11. Relief.” 10. All issues, except issues No.1 and 2, were decided in negative. The petition was allowed vide Award dated 1.8.2011. The claimants were awarded compensation of Rs.28,67,560/- along with interest @ 7.5% per annum from the date of petition till realization. The liability to pay compensation was fastened on the insurer. 11. Insurer preferred an appeal against the award passed by learned Tribunal, which was registered as FAO No.327 of 2011 in this Court. A coordinate Bench of this Court while deciding FAO No.327 of 2011 noticed that the insurer was required to be afforded opportunity to examine witness as sought to be examined on commission in the application filed under Order 26 Rule 4 read with Section 151 of the Code of Civil Procedure and the said appeal was accordingly decided vide judgment dated 1.8.2017 in following terms: “10. In view of what has been observed, I need not to go to other questions raised while arguing before this Court, as non-affording of rare, meaningful and effective opportunity is sufficient to remand the case. Therefore, without touching the merits of the case, this appeal is remanded to the learned Tribunal below with a direction to permit the appellant to examine the witness sought to be examined on commission in the application filed under Order 26 Rule 4 read with Section 151 CPC. 11. Needless to say, the opposite party shall not only have a right to cross-examine but shall also have independent right to examine this witness with respect to licence in question. 12. As regards the other findings, the learned Tribunal below shall confine its findings to the validity of the driving licence as the other questions otherwise have attained finality. In so far as the owner and the claimant are concerned shall not be disturbed/interfered by it. 13. However, before parting it needs to be clarified that in the event of question being decided against it i.e Insurance Company, it shall be open to question not only the said findings but raise all the questions as have been raised in the instant appeal. 14. However, as regards the owner,in the event of the issue of driving licence being decided against him, he shall be entitled to raise all the questions in the appeal so filed by him. 14. However, as regards the owner,in the event of the issue of driving licence being decided against him, he shall be entitled to raise all the questions in the appeal so filed by him. Whereas the claimants would be dis-entitled to file any appeal as the award passed by the learned Tribunal against them has already attained finality. 15. With these observations, the appeal is allowed in the aforesaid terms, so also the pending application(s), if any, leaving the parties to bear their own costs.” 12. Thereafter, learned Tribunal appointed a Local Commissioner to examine the Registration and Licensing Authority, Mathura or the custodian of record. The commission was executed. The statement of the witness Shri Mohammad Ibrahim, Senior Assistant, in the office of Regional Transport Authority, Mathura was recorded. 13. The owner was afforded opportunity to lead evidence in rebuttal, but the owner chose not to lead any evidence. 14. Learned Tribunal, vide impugned award dated 02.11.2017, held that the driver was not possessing valid driving license at the time of accident. Thus, the insurer was held to have proved violation of terms and conditions of the policy of insurance. However, placing reliance on the judgment passed by this Court in New India Assurance Company Ltd. Vs. Usha Devi and others, reported in 2012 (2) TAC 831 (HP), learned Tribunal directed the insurer to satisfy the award in the first instance and to recover the same subsequently from the owner. 15. In the above backdrop of facts, these appeals have been preferred. 16. I have heard learned counsel for the parties and have also perused the record carefully. FAO No.66 of 2018 17. Mr. Bimal Gupta, learned Senior Advocate, representing the owner, contended that the liability to pay compensation could not be fastened upon the owner merely on proof of the fact that the driving license of the driver was fake. He submitted that the insurer was further required to prove that the violation of the terms of policy, if any, was willful on the part of the owner. He submitted that the insurer was further required to prove that the violation of the terms of policy, if any, was willful on the part of the owner. He placed reliance upon the judgments passed by Hon’ble Supreme Court in Ram Chandra Singh v. Rajaram and Ors., (2018) 8 SCC 799 ; Nirmala Kothari vs. United India Insurance Company Limited, (2020) 4 SCC 49 ; Rishi Pal Singh vs. New India Assurance Company & others, (2018) 3 SCC 208 ; FAO No.340 of 2017, titled M/s Northern International Education & Research Centre Society vs. Rita Devi & others, decided by this Court on 01.01.2018 and FAO No.135 of 2018, titled Hari Ram vs. Jamuna Devi and others reported in ( 2019) SCC Online HP 2380. 18. Before adverting to the judgments relied upon by learned Senior Advocate for the owner, it will be necessary to consider the factual aspect of the case in hand. As noticed above, the insurer had raised a specific defence that the driver did not possess a valid driving license. In order to prove such fact, the insurer examined an official from the office of Regional Transport Authority, Mathura as witness. From the deposition of said witness, it has been proved that the driving license held by the driver was not genuine as the same had not been issued from the office of Regional Transport Authority, Mathura. Noticeably, the driving license, which was eventually proved to be fake, was placed on record by learned counsel for the owner. The owner had chosen not to lead any other evidence. He did not step into the witness box. More importantly, when learned Tribunal afforded the owner opportunity to rebut the evidence produced by the insurer in the shape of statement of official from Regional Transport Authority, Mathura, the owner had refused to produce any evidence. 19. Thus, the contention now being raised on behalf of owner, is clearly without merit. The judgments relied upon by learned Senior Counsel representing the owner do not expound the law as is sought to be canvassed. In all the said cases the version of owner, as to his conduct in ensuring the existence of driving license of the driver employed by him, was on record. The judgments relied upon by learned Senior Counsel representing the owner do not expound the law as is sought to be canvassed. In all the said cases the version of owner, as to his conduct in ensuring the existence of driving license of the driver employed by him, was on record. On the contrary in the facts of the case at hand, the owner had not pleaded that that he had prima facie satisfied himself about the genuineness of the driving license held by the driver and his driving skill. The owner also did not choose to place such version on record by leading evidence. The owner, as noticed above, did not even step into the witness box. 20. In the fact situation, as discussed above, no fault can be found with the impugned award as the only version before the learned Tribunal was with respect to the driving license held by the driver being fake. In absence of any explanation from the owner, as detailed above, learned Tribunal was not in a position to appreciate or assess the conduct of owner while employing the driver. In such circumstances, adverse inference was liable to be drawn against the owner. The insurer could not be presumed to prove a fact in negative. It could only be in the special knowledge of owner as to under what circumstances he had employed the driver and how he had satisfied himself, if at all, regarding the genuineness of driving license, if any, and the skill of the driver. 21. A three Judge Bench of Hon’ble Supreme Court in Pappu and others vs. Vinod Kumar Lamba & another 2018 (3) SCC 208 has held as under: “12. This Court in the case of National Insurance Co. Ltd. (supra), has noticed the defences available to the Insurance Company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The Insurance Company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time. 13. The onus would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time. 13. In the present case, the respondent No.1 owner of the offending vehicle merely raised a vague plea in the Written Statement that the offending vehicle DIL-5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, the respondent No.1 did not enter the witness box or examine any witness in support of this plea. The respondent No.2 Insurance Company in the Written Statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. The respondent No.1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. Only then would onus shift, requiring the respondent No.2 Insurance Company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending Truck was not enough for the respondent No.1 to make the Insurance Company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The Insurance Company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle - that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the Written Statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The Insurance Company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle. 14. In the present case, the Tribunal has accepted the claim of the appellants. It has, however, absolved the respondent No.2 Insurance Company from any liability for just reasons. The High Court has also affirmed that view. It rightly held that there can be no presumption that Joginder Singh was driving the offending vehicle at the relevant time.” 22. Further in identical fact situation as the one in case at hand a three judges bench of Hon’ble Supreme Court in Singh Ram v. Nirmala , (2018) 3 SCC 800 has observed as under: 7. In the present case it is necessary to note, as observed by the Tribunal, that the owner did not depose in evidence and stayed away from the witness box. He produced a licence which was found to be fake. Another licence which he sought to produce had already expired before the accident and was not renewed within the prescribed period. It was renewed well after two years had expired. The appellant as owner had evidently failed to take reasonable care [Proposition (vii) of Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 since he could not have been unmindful of facts which were within his knowledge. 23. In light of above discussion, I do not find merit in the contention raised on behalf of the owner and in result FAO No.66 of 2018 is dismissed. FAO No.130 of 2018 24. In this appeal, Mr. G.C. Gupta, learned Senior Advocate, for the insurer has contended that the impugned award was bad to the extent that the learned Tribunal had directed the insurer to satisfy the award in the first instance and then to recover the same from the owner. In order to support his contention, he has placed reliance on the judgments passed by Coordinate Bench of this Court in United India Insurance Company Limited vs. Nirmala Devi, 2020 (1) Shimla Law Cases 281 . Reliance has also been placed on the judgments passed by Hon’ble Supreme Court in Pappu and others vs. Vinod Kumar Lamba & another, 2018 (3) SCC 208 ; Shamanna and another vs. Divisional Manger, The Oriental Insurance Co. and others, 2018 (9) SCC 650 . 25. Reliance has also been placed on the judgments passed by Hon’ble Supreme Court in Pappu and others vs. Vinod Kumar Lamba & another, 2018 (3) SCC 208 ; Shamanna and another vs. Divisional Manger, The Oriental Insurance Co. and others, 2018 (9) SCC 650 . 25. First coming to the facts of the case at hand, the insurer had sought to avoid its liability on the ground that the driver of the offending vehicle did not hold and possess a valid driving license. The learned Tribunal has upheld the defence of the insurer to this effect. In light of the evidence on record as also what has been discussed and held hereinabove, the finding of learned Tribunal that the driving license held by the driver was fake, needs to be affirmed. 26. The question, however, is whether the impugned award directing the insurer to satisfy the award in the first instance and to recover the same later from the owner/insured requires interference by this Court? 27. The above issue has to be viewed from the perspective that in the instant case the violation of terms of insurance policy has been found on account of fake driving license held by the driver of the offending vehicle. That being so, a distinction has to be drawn with cases where violation is proved on account of death or bodily injury caused to an unauthorized or gratuitous passenger. In the case in hand there is no dispute as to the victim of the accident being a third party and for such reason his statutory coverage under the policy, but in other case, as noticed above, the victim of the accident may not be entitled to coverage under the insurance policy. The difference in two situations can be marked for the reason that in the former there is a subsisting contract of Insurance covering the risk and there is a violation of a certain condition in the contract of insurance and the latter deals with cases where there is no contract covering the risk. 28. In National Insurance Co. Ltd Vs Swaran Singh (2004) 3 SCC 297 a three judges bench of Hon’ble Supreme Court while dealing with facts where the violation of terms of policy of insurance was due to defect of license or no license has held as under: 104. 28. In National Insurance Co. Ltd Vs Swaran Singh (2004) 3 SCC 297 a three judges bench of Hon’ble Supreme Court while dealing with facts where the violation of terms of policy of insurance was due to defect of license or no license has held as under: 104. It is, therefore, evident from the discussions made hereinbefore that the liability of the insurance company to satisfy the decree at the first instance and to recover the awarded amount from the owner or driver thereof has been holding the field for a long time. 105. Apart from the reasons stated hereinbefore, the doctrine of stare decisis persuades us not to deviate from the said principle. 106. It is a well-settled rule of law and should not ordinarily be deviated from. (See Bengal Immunity Co. Ltd. v. State of Bihar [ AIR 1955 SC 661 : (1955) 2 SCR 603 ] , SCR at pp. 630-32, Keshav Mills Co. Ltd. v. CIT [ AIR 1965 SC 1636 : (1965) 2 SCR 908 ] , SCR at pp. 921-22, Union of India v. Raghubir Singh [ (1989) 2 SCC 754 : (1989) 3 SCR 316 ], SCR at pp. 323, 327, 334, Gannon Dunkerley and Co.v. State of Rajasthan [ (1993) 1 SCC 364 ], Belgaum Gardeners Coop. Production Supply and Sale Society Ltd.v. State of Karnataka [1993 Supp (1) SCC 96 (1)] and Hanumantappa Krishnappa Mantur v. State of Karnataka [1992 Supp (2) SCC 213 : 1992 SCC (Cri) 667] .) 107. We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage. 29. In Oriental Insurance Co. Ltd. Vs Zaharulnisha and others (2008) 12 SCC 385 again in a case where driving license was not found valid, Hon’ble Supreme Court has held as under: 19. The judgment (in Swaran Singh case [ (2004) 3 SCC 297 : 2004 SCC (Cri) 733] ) proceeds to hold that under the MV Act, holding of a valid driving licence is one of the conditions of the contract of insurance. Driving of a vehicle without a valid licence is an offence. However, the question herein is whether a third party involved in an accident is entitled to the amount of compensation granted by the Motor Accidents Claims Tribunal although the driver of the vehicle at the relevant time might not have had a valid driving licence but would be entitled to recover the same from the owner or driver thereof. It is trite that where the insurers, relying upon the provisions of violation of law by the assured, take an exception to pay the assured or a third party, they must prove a wilful violation of the law by the assured. In some cases, violation of criminal law, particularly violation of the provisions of the MV Act, may result in absolving the insurers but, the same may not necessarily hold good in the case of a third party. In any event, the exception applies only to acts done intentionally or “so recklessly as to denote that the assured did not care what the consequences of his act might be”. In any event, the exception applies only to acts done intentionally or “so recklessly as to denote that the assured did not care what the consequences of his act might be”. The provisions of sub-sections (4) and (5) of Section 149 of the MV Act may be considered as to the liability of the insurer to satisfy the decree at the first instance. The liability of the insurer is a statutory one. The liability of the insurer to satisfy the decree passed in favour of a third party is also statutory. 22. In the result, the appeal is allowed to the limited extent and it is directed that the appellant Insurance Company though not liable to pay the amount of compensation, but in the nature of this case it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle viz. Respondent 8, particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this Court to contest this appeal. This direction is given in the light of the judgments of this Court in National Insurance Co. Ltd. v. Baljit Kaur [ (2004) 2 SCC 1 : 2004 SCC (Cri) 370] and Deddappa v. National Insurance Co. Ltd. [ (2008) 2 SCC 595 : (2008) 1 SCC (Cri) 517] 30. The above principle has been followed by Hon’ble Supreme Court in Pappu and others Vs Vinod Kumar Lamba and others (2018) 3 SCC 208 (3 Judges) ; Singh Ram Vs Nirmala and others (2018) 3 SCC 800 (3 Judges); Shamanna and another vs. Divisional Manger, The Oriental Insurance Co. and others, 2018((9) SCC 650 and recently in M. Anathi and others vs P. Venkatesan and others Civil Appeal No. 1175 of 2025 decided on 29.01.2025. 31. Even in Shamanna (supra), the award directing the insurer to pay and recover passed by the Tribunal was upheld and the verdict of the High Court to the contrary was set aside. Reliance was placed on National Insurance Company Ltd. Vs. Swaran Singh, (2004) 3 SCC 297 and National Insurance Co. Ltd. vs. Laxmi Narain Dhut, (2007) 3 SCC 700 . The Hon’ble Supreme Court had made the observations in light of the fact that in a reference made to Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Reliance was placed on National Insurance Company Ltd. Vs. Swaran Singh, (2004) 3 SCC 297 and National Insurance Co. Ltd. vs. Laxmi Narain Dhut, (2007) 3 SCC 700 . The Hon’ble Supreme Court had made the observations in light of the fact that in a reference made to Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Parvathneni, (2009) 8 SCC 785 on the question as to whether the Supreme Court in exercise of powers under Article 142 of Constitution of India can direct insurer to pay and recover even in the case of violation of terms and conditions of insurance policy, had been kept open as a question of law to be decided in appropriate case. 32. Noticeably, the Co-ordinate Bench of this Court in Nirmala Devi’s case (supra) has placed reliance on judgment passed by Hon’ble Madras High Court in the matter of Bharati AXA General Insurance Co. Ltd Vs Aandi and others reported in 2018 SCC Online Mad 13295 in which the case involved the issue of liability of insurer to pay and recover in respect of gratuitous passenger. In the case of Nirmala supra the coordinate bench of this court was again ceased of the fact situation involving gratuitous passenger. In this view of the matter the insurer cannot derive benefit from the said judgment. 33. In light of above analysis, FAO No.130 of 2018 also deserves dismissal and is accordingly dismissed. 34. Both the appeals are accordingly disposed of so also the pending application(s), if any.