JUDGMENT [ENTITY], J.
1. This judgment shall govern the disposal of both the aforesaid appeals.
2. [CASE NUMBER] has been filed by the claimants for enhancement of compensation. In a third party claim, Tr[ENTITY] has awarded compensation of Rs. 50,000 for the death of the deceased [ENTITY] a boy of about 15 years.
3. [CASE NUMBER] has been filed by the insurance company on the ground that the driver who was driving the offending vehicle was not having a valid driving licence, therefore, the insurance company cannot be made liable to indemnify the liability on account of breach of terms and conditions of the insurance policy.
4. The brief facts of the case are that on 26.11.1996, deceased [ENTITY] after purchasing vegetables from the market was going back to his house on bicycle. The offending truck No. CIH 7561 was being driven by the respondent No. 3 [ENTITY]. He was driving the same rashly and negligently and hit the deceased from behind without giving any horn and as a result of the accident, boy fell down and the said truck passed over the body of the boy and he died on the spot. The matter was reported to P.S., Gwalior. Crime was registered and respondent was prosecuted under [SECTION], [ACT].
5. Parents of the deceased filed claim petition for grant of compensation. After due service of notice, driver and owner both remained ex parte before the Claims Tr[ENTITY]. Insurance company contested the case, filed written statement and also took the objection that driver of the vehicle was not having a valid driving licence and he was driving the vehicle contrary to the terms and conditions of the insurance policy and, therefore, insurance company is not liable for the compensation. Insurance company examined DW 1 Dr. [ENTITY] and DW 2 [ENTITY]. DW 1 Dr. [ENTITY] was working as a legal officer in the insurance company and he deposed that after the accident, the said truck was put to fire by the mob. The insured had filed claim case, Exh. D-2, in which he has mentioned the number of the driving licence issued by the R.T.O., Agra and along with Exh. D-3 he has produced copy of the driving licence and by letter, Exh. D-7, he had forwarded the copy of the driving licence to the R.T.O. for verification. DW 2 [ENTITY], surveyor conducted the survey and had also verified the licence and it was found that as per the date of licence, i.e., 26.6.1988, it was a Sunday and the R.T.O. office was closed and as per the report of R.T.O., the said licence was not issued from the office of R.T.O., Agra.
6. Tr[ENTITY] discarded the aforesaid evidence on the ground that surveyor neither interrogated the owner and driver of the vehicle nor collected any information from them and placing reliance on the decision of the Apex Court in the case of [PRECEDENT], rejected the objection of the insurance company and found that the insurance company has failed to prove that the driver was not having valid driving licence. Tr[ENTITY] also found that when the owner of the truck filed the claim case, Exh. D-2, before the insurance company and mentioned the number of the driving licence and along with another application, Exh. D-3, submitted the copy of the driving licence to the insurance company, it shows that owner of the vehicle was having bona fide belief that the driver is having a valid driving licence and found that insurance company has not produced any cogent, reliable and sufficient evidence that the driver was not having valid driving licence and rejected the objection and awarded the compensation.
7. Tr[ENTITY] found that the deceased was aged about 13 years and awarded a lump sum compensation of Rs. 50,000 on the principle of no fault liability against which both have filed the aforesaid appeals.
8. First of all we would like to consider the objections and submissions made by the insurance company in [CASE NUMBER]. Mr. [ENTITY], the learned counsel for the insurance company, vehemently submitted that Tr[ENTITY] has wrongly discarded the evidence of the insurance company about driving licence. He submitted that the copy of the driving licence was referred for verification to R.T.O., Agra from where the licence was issued, but as per the report of the licensing authority of R.T.O., Agra, Exh. D-4, the said licence was not issued from the said office. He further submitted that on the basis of the aforesaid report of the licensing authority, it is clear that driver was not having a valid driving licence and committed a breach of terms and conditions of the insurance policy, therefore, the insurance company is not liable for grant of compensation. He has not objected that this is a third party claim and the insurance company has not taken permission under [SECTION] of the [ACT] to contest the claim on all the grounds.
9. In reply the learned counsel for the claimants Mr. [ENTITY] supported the award and submitted that insurance company has not discharged its burden, nor interrogated the driver and owner of the vehicle and had also not summoned the record of R.T.O., therefore, the Tr[ENTITY] has rightly discarded their evidence and has held that insurance company cannot be exonerated from its liability.
10. So far as the liability of the insurance company as has been raised in [CASE NUMBER] filed by the insurance company is concerned, the Tr[ENTITY] has discarded the evidence of DW 1, Dr. [ENTITY] and DW 2 surveyor [ENTITY]. This evidence requires to be examined in the light of the decision of the Supreme Court. Here it is also worth mentioning that the owner and driver both have remained ex parte and they have also not assisted the court by producing any evidence whether the driver was having any valid driving licence or not.
11. In the case of [PRECEDENT], though the said decision related to the corresponding provisions of the predecessor Act ([ACT]), but observations made in the judgment are quite germane. Now as the corresponding provisions are materially the same as in the Act of 1988, it was pointed out that insistence of the legislature that the motor vehicle can be used in a public place only if that vehicle is covered by a policy of insurance is not for the purpose of promoting the business of the insurance company, but to protect the members of the community who become sufferers on account of accidents arising from the use of motor vehicles. Such protection would have remained only a paper protection if compensation awarded by the courts were not recoverable by the victims of the accidents.
12. In the case of [PRECEDENT], the Supreme Court has held that driver of the vehicle was not summoned and record from Regional Transport Authority was not produced. Therefore, in the light of the aforesaid circumstances, it was held that the insurance company has not discharged the burden cast upon it under [SECTION] of the [ACT].
13. In the case of [PRECEDENT], Apex Court has held that Tr[ENTITY] and also High Court have failed to appreciate that production of a photocopy was not sufficient to prove that the driver had a valid licence when that fact was challenged by the appellant and genuineness of the photocopy was not admitted by it.
14. In the case of [PRECEDENT], it has been held that the insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition but the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence. It was further contended on behalf of insured that it is enough if he establishes that he made all due enquiries and believed bona fide that the driver employed by him had a valid driving licence in which case there was no breach of policy conditions and in the context of the aforesaid controversy the Apex Court directed that if the insurance company succeeds in establishing that there was breach of the policy condition, the Claims Tr[ENTITY] shall direct the insured to pay that amount to the insurer. In default, the insurer shall be allowed to recover that amount from the insured.
15. Recently, in the case of [PRECEDENT], a three-Judge Bench of the Supreme Court has settled the controversy about the liability of the insurance company in third party risk cases and it is held 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. Therefore, the doctrine of stare decisis persuades us not to deviate from the said principle as it is well settled rule. It would be useful to repeat the summary of findings of the said judgment as under:
"(i) [SECTION] of the [ACT] providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under [SECTION] or [SECTION] of [ACT], inter alia, in terms of [SECTION] of the said Act.
(iii) The breach of policy conditions, e.g., disqualification of driver or invalid driving licence of the driver, as contained in [SECTION], 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 wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer 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 of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tr[ENTITY]s in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under [SECTION] of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The Claims Tr[ENTITY] constituted under [SECTION] read with [SECTION] is empowered to adjudicate all claims in respect of the accidents involving death or bodily injury or damage to property of third party arising from use of motor vehicle. The said power of the Tr[ENTITY] is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tr[ENTITY] has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and the insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in [SECTION] of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the Tr[ENTITY] arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of [SECTION] read with Sub-section (7), as interpreted by this court above, the Tr[ENTITY] can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tr[ENTITY]. Such determination of the claim by the Tr[ENTITY] will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tr[ENTITY] to the Collector in the same manner under [SECTION] of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by [SECTION] of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tr[ENTITY].
(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tr[ENTITY] and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances the adjudication of their claims inter se might delay the adjudication of the claims of the victims."
16. Therefore in the light of the aforesaid discussion and decisions of the Apex Court on the point in dispute, the law is well settled. The trial court has recorded a finding that the insurance company has failed to discharge its burden and the insurance company has failed to prove that the driver was not having any valid driving licence. Insurance company has not produced the copy of driving licence nor the surveyor has examined or interrogated the owner or driver of the vehicle but merely on this ground the conduct of owner and driver cannot be exonerated. It is clear that owner and driver both remained ex parte and have also not produced the original driving licence and have not satisfied the insurance company on the question that the driver was having a valid driving licence and the owner was under bona fide belief and they have not committed any breach of the conditions of the insurance policy. In such facts and circumstances of the case, it is directed that in view of the law laid down, the insurance company first shall pay the amount of compensation awarded to the claimants and after payment, the company shall have liberty to recover the same from the insured, i.e., owner or driver of the vehicle.
17. As regards the appeal of claimants is concerned, we have heard the learned counsel for the parties and perused the evidence on record. PW 1 [ENTITY], father of the deceased has stated that deceased [ENTITY] was aged about 13 years and was a student of 7th class, but in addition to his studies, he was also engaged in the business and was selling toffees and biscuits and running a shop at his residence itself. He was earning Rs. 40 to Rs. 50 per day. Claims Tr[ENTITY] has not adopted any multiplier system on the ground that a 13 years' old boy cannot run any business and has awarded compensation of Rs. 50,000 on the principle of no fault liability. On the basis of the evidence of PW 1, even if for determining the compensation the Second Schedule for compensation for third party fatal accidents claim cases is taken into consideration and it is considered that he was having notional income of Rs. 15,000 per annum. The amount of dependency would be 1/3rd as claimants are the parents. That would be Rs. 5,000 per year. Age of the mother has been shown as 42 years. Therefore, multiplier of 15 would be applicable, i.e., Rs. 5,000 x 15 = Rs. 75,000. The amount of compensation comes to Rs. 75,000. To this amount a further sum of Rs. 20,000 is added towards funeral expenses, loss to estate, etc. and the total compensation is determined at Rs. 95,000 (rupees ninety-five thousand only). The claimants shall also be entitled to the interest on the aforesaid enhanced amount of compensation at the rate of 6 per cent per annum from the date of filing of claim petition with costs.
18. In the result, appeal of the claimants ([CASE NUMBER]) is allowed and award is modified to the extent indicated above and appeal filed by the insurance company ([CASE NUMBER]) is dismissed with liberty that the insurance company shall be entitled to recover the said amount from the owner or driver of the vehicle.