ORDER :

1. This appeal arises out of judgment dated 16.07.2001 passed by the Motor Accident Claims Tribunal, Gulabpura, Camp at Shahpura, District Bhilwara (for short “the tribunal”) in Civil Misc. Case No. 123/2000 (C.M.38) by which the tribunal has held only the insurance company liable to make the payment of the compensation amount to the claimants. Being aggrieved by the judgment of the tribunal, the appellant insurance company has preferred the instant appeal.

2. In the present appeal, the question arises is whether on the basis of the facts of the case, can it be said that the driver of the offending vehicle was having valid driving licence?

3. The facts of the case are that on 19.09.1996 at about 2.15 p.m. when Suraj Karan @ Suraj Mal Mali was on his way to duty to the mill of his employer and reached near the Vivekanand School, he was hit by a speeding bus as a result of which he got injured. He was immediately taken to the hospital but he died within a short time. The legal heirs of the deceased filed an application for compensation under Section 140 and 166 of the Motor Vehicle Act, 1988 (for short “the act”). The appellant insurance company filed the written statement with a specific plea that the driver was holding the licence for driving the H.G.V. (Heavy Goods Vehicle) only where as he was driving a bus which was a Heavy Passenger Vehicle.

4. The owner has pleaded existence of insurance policy of the vehicle involved and fixing of liability upon the insurance company. Whereas the insurance company has denied manner of the accident, negligent driving by the bus driver and also taken a plea about non-existence of valid driving licence of the bus driver.

5. On the basis of pleadings, learned tribunal framed as many as 5 issues but only the determination qua the issue No.3 has been agitated by the appellant which is in respect of holding of valid driving licence by the driver of offending vehicle. Learned tribunal has considered the driving licence of bus driver and went on to hold that it is not prove that driver of the offending vehicle was not in possession of a valid and effective driving licence. Holding so, the insurance company was held liable to pay the award while absolving the owner.

6. Though appearance was put in, on behalf of owner of the bus but his counsel has not remained present for arguing the matter. Hence I am supposed to decide the appeal on following grounds:-

“Whether the driver of the offending bus was possessing a valid driving licence at the time of accident?”

7. Shri Jagdish Vyas, learned counsel appearing for the appellant insurance company has argued that learned tribunal has erred while holding the insurer to make the payment of the award without considering Section 3 of the Act as such the owner of the vehicle had breached the policy condition; that the learned tribunal without considering the Rule 2.2 of Rajasthan Motor Vehicle Rules, 1990 as well as Section 3 of the Act, has passed the impugned award against the insurance company hence, the insurance company cannot be held liable for the payment of the award. Learned tribunal has erred in not considering the fact that driver of the offending bus was having a licence for Heavy Goods Vehicle, but he was driving a passenger bus, for which the driver was required to have either a H.P.V. (Heavy Passenger Vehicle) category driving licence or an endorsement of H.P.V. authorization on his existing licence of H.G.V. category. The learned tribunal should have passed the award against the owner of the offending bus because he has given the vehicle to such a driver who was not authorized to drive the bus. On these grounds prayer has been made to re-consider the award. As against this, learned counsel appearing for respondent No.1 to 6 has supported the judgment.

8. I have heard the learned counsel for the parties and gone through the impugned award and perused the material place on record.

9. In the present case, the driver of the offending vehicle was iss