Judgment :-

Ganguly, J.

1. Leave granted.

2. This appeal has been filed impugning the judgment and order dated 3.9.2007 passed by the National Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as `the National Commission).

3. The said National Commission in exercise of its revisional jurisdiction refused to interfere with the concurrent findings of both the District Forum and the State Commission.

4. The facts which were alleged in the complaint filed before the District Forum, Mehboob Nagar, are as follows:

5. The husband of the complainant late Beesana, obtained policy bearing No.6200001644/2005 from the National Insurance Company Limited for Rs.1,00,000/-. The policy covers the risk of accidental death of insured. The legal heir of the insured will get Rs.1,00,000/- under the policy. The policy holder died on 24.11.2005 in a road accident while he was proceeding on his motorcycle bearing No. AP 22-J278 from Gadwal to Veerapoor. On the way in the limits of PJP Colony, where the tractor bearing No. AP 22 C 3422 which was coming from the opposite side, came at a high speed in a rash and negligent manner and hit the motor cycle of Beesanna and Beesanna sustained fatal injuries. The doctors advised to shift him to Kurnool hospital. While on the way to Kurnool hospital, Beesanna succumbed to the injuries.

6. Thereafter, the complainant submitted Claim Form of the appellant herein along with all other relevant documents.

7. The main contention raised by the appellant before the District Forum was that the deceased had no valid licence at the time of accident. The fact that late Beesanna obtained the policy to cover a risk to the third parties, own damages and personal accident is not disputed by the appellant. It is also not in dispute that at the time of accident, the insurance policy was valid.

8. It is not in dispute that as per the terms of the policy, the nominee will get Rs.1,00,000/- if the policy holder dies in a motor accident.

9. The stand of the appellant is that the driving licence of the deceased which was sent for verification is found to be fabricated. Their further stand is that the policy holder had got driving licence to drive Tractor Trailer (Transport) but had no licence to drive motorcycle with gear.

10. Before the District Forum, the stand of the appellant was that Exhibit B-1, the licence of the deceased purports to be a fabricated one created in favour of the deceased for the purpose of wrongful gain.

11. The District Forum observed that they are unable to appreciate the said stand because of the reason that the contents of Exhibit B-2 have not been challenged before it by the insurer by way of affidavit of the authority which issued the certificate.

12. The District Forum came to a finding that the burden wholly lies on insurance company to establish the defence raised by it in such a proceeding and also to establish the breach on the part of the insured.

13. In support of its contention the District Forum has quoted the judgment passed by the National Commission in National Insurance Co. Ltd. Vs. Swaran Singh and Ors. -(2004) 3 SCC 297; wherein it has been clearly laid down that the breach of policy condition has to be proved by the insurance company and it is very clear that the burden of proof is on them.

14. In National Insurance Co. Ltd. (supra) it has been held that the burden is on the insurer to prove that the insured is guilty for willful breach of conditions of insurance policy or the contract of insurance. (See para 92, page 337).

15. In coming to the said conclusion the learned Judges relied on the decision in the case of United India Insurance Co. Ltd. Vs. Lehru and Ors. -(2003) 3 SCC 338 and held if a person has been given a licence for driving a particular type of vehicle, it cannot be said that he has no driving licence. In this case it is an admitted fact that the victim had licence to drive a tractor with trailer, but the allegation of the appellant is that victims