1. ' BASHARAT AHMAD SHAIKH, J.---The present appeal arises out of an order of the High Court passed on 14-12-1991 in dismissing the writ petition filed by the Azad Jammu and Kashmir Transporters Mutual Assistance Co-operative Society, the appellant before us. The writ petition had been filed by the aforesaid Society in order to get rid of the liability imposed on it, initially by the Claims Tribunal and subsequently upheld by the appellate authority, that the Society should pay a sum of Rs,88,000 as compensation for the death of five persons and injuries to four persons caused by a road accident. They all were travelling in Bus No,AJK-A-875 belonging to Bani Hussain respondent.
2. The case of the Society is that it is Bani Hussain who is legally liable to pay compensation and that the liability has been illegally fixed on the Society.
3. ' It is provided in Section 67 of the Azad Jammu and Kashmir Motor Vehicles Ordinance, 1971 that if any death or injury is caused as a result of use of stage/contract carriage the permit-holder shall be liable to pay compensation as specified in law. For adjudication of claims for compensation a Claims Tribunal is constituted by the Government under Section 67-A and appeal lies to an appellate authority. The liability imposed on the permit-holder, however, can be shifted in accordance with clause (c) of Section 49A(1) of the Ordinance if a Transporters Mutual Assistance Co-operative Society registered under the Co-operative Act guarantees by issuing a certificate that it would make the payment of compensation payable by the permit-holder. The appellant Society answers to the description of a mutual society and has admittedly issued a certificate in favour of respondent Bath Hussain. Before the Claims Commissioner, the appellant Society as well as Bani Hussain respondent, who is owner of bus under reference, were impleaded as respondents.
4. It was pleaded on behalf of the appellant Society that at the time of accident the bus was being driven by an incompetent driver who was not even licensed to drive the vehicle. It was contended that due to this violation of the Motor Vehicles Ordinance the Society was not liable to pay the compensation. The Tribunal held that so far as the owner of the bus was concerned he had taken the necessary precautions and was not guilty of any infringement of the Motor Vehicles Ordinance.
5. It was found that the driver who was employed by the bus owner was an experienced and licensed driver and on the day when the bus met the accident under reference it was the licensed driver who was driving the bus but, a few kilometres short of Chakothi the driver gave the bus to an unauthorised person Ali Hussain. A judicial inquiry was also reportedly held and result of the inquiry led to the same finding as just mentioned.
6. ' Before noticing the relevant provisions it may be observed that so far as the facts are concerned they are undisputed. It was not the case of the appellant in the writ petition filed by it that the findings recorded by the Claims Tribunal as affirmed by the appellate authority were wrong. In fact in the writ petition filed in the High Court the findings of the Claims Tribunal as well as the result of the judicial inquiry were relied upon.
7. ' The case of the appellant is that in the certificate issued under Section 49-A of the Motor Vehicles Ordinance by the appellant Society it is clearly mentioned that the Society would not be responsible for the payment of compensation if any provision of the Motor Vehicles law is contravened. Respondent Bani Hussain also does not deny that in case of any such contravention the Society is not responsible for the payment. However, it has been contended on his behalf by Mr. Abdullah Shah Masudi, Advocate, that he has not been guilty of any contravention.. Sardar Rafique Mahmood Khan, the learned counsel for the appellant, however, vehemently contended that in Section 3 of the Ordinance there is a prohibition that a person who does not hold an effective licence shall not drive a motor vehicle in any public place and Section 5 provides that the owner of a motor vehicle shall not cause or permit any person who does not have a valid licence to drive a motor vehicle in public place. He contended that the Claims Tribunal bias found that the bus was being driven at the relevant time by an unlicensed person which was a clear contravention of law.
8. Therefore, the liability was not that of the appellant Society.
9. ' We have given earnest thought to the sole point involved in the case. So far as Bani Hussain respondent is concerned the provision which is relatable to him is section 5 of the Ordinance to which a reference has already been made. The section is in following terms:- "5. Owners of motor vehicles not to permit contravention of section 3 or 4. No owner or person in charge of a motor shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehcile."
10. Bani Hussain could be held guilty of contravention of the Motor Vehicles Ordinance only if he had permitted an unlicensed person to drive the bus but he has done no such thing. As is undisputed, the person engaged by him to drive the vehicle was a responsible and experienced driver who carried a valid driving licence. The fact is that when the bus left Muzaffarabad it was being driven by the same regular driver. It is not a case in which an owner finds that the regular driver is not available and he asks an unlicensed person to drive the bus so that he may be able to make some money. The violation of law has been done by Ali Hussain, who is not the owner of the bus, by unauthorisedly driving the bus without having a licence. In these circumstances the owner of the bus cannot be held responsible for contravention of the Ordinance. The certificate issued by the appellant Society does lay down that the Society would not be liable to pay compensation if the law relating to motor vehicles is violated but the reasonable construction is that the contravention of law referred to in the certificate is that contravention which is by one of the parties to the arrangement and not by third persons. If any other interpretation is adopted then the Society would be absolved of its responsibility if the licensed driver crosses speed limit and thus violates the law. The Society issues a certificate under clause (c) of Section 49-A in lieu of a bank guarantee. In turn the bank guarantee is a "security for payment of any compensation that the applicant (permit holder) many be required to pay under the provisions of section 67". Therefore, the certificate has to be treated as interchangeable with the bank guarantee for all practical purposes. However, the certificate would not extend to those cases in which there has been a violation of the motor vehicles law by the permit-holder.
11. We find that no case was made out before the High Court because the order impugned before the High Court was not an order without lawful authority and of no legal effect. The appeal arising therefrom also has thus no force. However, there would be no order as to the costs in this Court.