Mansoor Ahmad Mir, J.
1. This appeal is directed against the judgment/award dated 30.12.2002 and order dated 31st March, 2003 passed in claim petition titled Mst. Sara v. Bashir Ahmad Sofi and Ors. which shall be hereinafter referred to as impugned judgment.
2. Learned Counsel for appellant argued that Tribunal had wrongly saddled the appellant Company with liability because the driver, respondent No. 2, was not having valid licence. While developing the argument argued that driver was having licence to ply 'heavy goods vehicle' and was not duly licenced to drive and ply heavy passenger buse(s). The finding returned by the Tribunal that driver was duly licenced driver is illegal erroneous.
3. Learned Counsel for respondents argued that appellant failed to prove that owner committed any breach in terms of Section 149 of Motor Vehicles Act. The finding returned by the Tribunal is legal one needs no interference.
4. The claimants, respondents 3 to 8, filed a claim petition before Motor Accident Claims Tribunal, Srinagar, on 18th March, 1998, which came to be, diarized as claim petition No. 59 of 1998 and, granted vide impugned judgment dated 30.12.2002. The Tribunal while granting the claim petition awarded Rs. 5,48,000+2000+10,000 minus Rs. 50,000/- with 9% interest from the date of institution of the claim petition i.e. 18th March, 1998, till final realization, in favour of the claimants and against the appellant (insurer).
5. A copy of the impugned judgment came to be forwarded to the appellant for satisfying the award. The appellant made an application before the Tribunal for rectifying the error which had crept in while calculating the awarded amount which came to be granted vide order dated 31st March, 2003, and accordingly it was ordered that inadvertently clerical mistake had crept in and amount be read as 4,48,000/- instead of Rs. 5,48,000/-.
6. The bone of contention in this appeal is whether the Tribunal has rightly saddled the appellant with liability?
In order to return finding on this issue, it is necessary to reproduce issue No. 3, herein, which reads as under:
3. Whether Res. No. 1 was not holding valid driving licence at the time of the accident and hence the claim petition is not maintainable? OPR-3.
7. The parties had lead evidence. Appellant/insurer had examined only one witness i.e. Pirzada Noor-ud-Din, Record Keeper of Regional Transport Office, Srinagar, who stated that as per the record driving licence No. 50834 was issued in the name of Bashir Ahmad Sofi who is competent to drive light, medium and heavy vehicles and can ply a passenger bus but the licence was not renewed on the date of occurrence.
8. The appellant/insurer had not lead any evidence in order to prove that owner had committed a breach. There is no evidence on the file that the licence which was not renewed at the time of occurrence was the cause of accident.
9. Division Bench of this Court in case titled as New India Asurance Company Ltd., v. Sughra Bibi and Ors. LPA No. 35/2001, decided on 30.11.2005, held as under:
A person, once found entitled to the issuance of a driving licence, would, thus, continue to be a person able to drive a motor vehicle regardless of the renewal of his driving licence unless five years have elapsed from the date when his existing driving licence has ceased to be effective. In this view of the matter, we find that the non renewal of licence, within a period of five years from the date of issue or renewal thereof, would, not bring such licence in the definition of 'Not a duly licensed person.
10. There is also no proof on the file that the driver was not holding licence to drive passenger bus. It was for the appellant to plead and prove that owner had committed breach and driver who has having licence to drive a particular kind of vehicle had driven another kind of vehicle and that was the cause of accident.
11. This Court in case titled as National Insurance Company Ltd. v. Abdul Gaffar Pantith reported in SLJ 2004(11) page 692, held as under:
7. In the recent case of National Insurance Company Ltd. v. Swaran Singh and Ors. : AIR2004SC1531 , a three-Judge Bench of the Apex Court has held that breach of policy condition, for example, disqualification of driver or invalid driving license of the driver has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defence available to the insurer against either the insured or the third parties. To avoid its liability towards 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 duly licensed driver or one who was not disqualified to drive at the relevant time. Thus the Insurance Company must not only prove, as a part of its defence, that the person driving the vehicle was disqualified or that he did not hold a valid driving license, it is also required to establish that the insured, i.e. the owner of the vehicle had made positive breach of the condition. As a matter of fact, the Supreme Court went to the extent of holding that where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid license by the driver or his qualification to drive during the relevant period, 'the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving license is are so fundamental and bound to have contributed to the cause of the accident.
12. Apex Court in case titled as Punam Devi and Anr. v. Divisional Manager, New India Assurance Co. Ltd., and Ors. reported in : AIR2004SC1742 , held as under:
2. In National Insurance Co. Ltd. Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 it was held that the insurance company cannot challenge the quantum of compensation awarded by the Tribunal. The only ground open to insurer is contained in Section 149(2) of the Motor Vehicles Act. In National Insurance Co. Ltd. v. Swaran Singh and Ors. 2004(1) Scale 180, this Court has held that '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 insured, the insurer has to prove that the insured was guilty of negligence or failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.' In the present case, the insurer has not led any evidence that the driver of the vehicle had no licence. The burden of proof that the driver had no licence was open to the insurer which it failed to discharge.
13. Apex Court in case titled as National Insurance Co. Ltd. v. Swaran Singh reported in : AIR2004SC1531 , held as under:
3. Defences raised by the petitioner-company in the claim petitions purported to be in terms of Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 (hereinafter referred to as ' the Act') were (a) driving licence produced by the driver or owner of the vehicle was a fake one; (b) driver did not have any licence whatsoever, (c) licence, although was granted to the concerned driver but on expiry thereof, the same had not been renewed; (d) licence granted to the drivers being for one class or description of vehicle but the vehicle involved in the accident was of different class or description; and (e) the vehicle in question was driven by a person having a learner's licence.
84...A person possessing a driving licence for 'motorcycle without gear', for which he has no licence. Cases may also arise where a holder of driving licence for 'light motor vehicles' is found to be driving a 'maxi-cab', 'motor- cab' or 'omnibus' for which he has no licence. In each case on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failure and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.
105...
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have 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 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 duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, 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 wherefore would, be on them.
(vi) Even where the insured is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said, breach or breaches on the condition of driving licence is/are so fundamental as are found to have, contributed to the cause of the incident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insured under Section 149(2) of the Act.
14. Whether licence was renewed or not that cannot be a ground for holding that driver was not duly licenced and was not having effective licence. It is worthwhile to mention herein that witness examined by the appellant stated that driver was competent to drive passenger vehicle.
15. In the given circumstances, I am of the considered view that finding returned by the Tribunal is correct and the compensation awarded is just.
16. Accordingly, the appeal is dismissed along with all connected CMP(s). Awarded amount be released in favour of the claimants in terms of the impugned judgment.