The burden of proving the breach of insurance policy terms and conditions lies on the insurance company, and in this case, the company successfully demonstrated the absence of a valid driving license for the appellant, leading to the dismissal of the appeal.

JUDGMENT :

1. Heard Mr. Suraj Naik for the appellants, Mr. Ashwin Bhobe for respondents no.1 and 2, and Mr. E. Afonso for respondent no.3.

2. The challenge in this appeal is to the impugned Judgment and Award dated 29.11.2014 made by the Motor Accident Claims Tribunal (Tribunal) in Claim Petition No.48/2012.

3. Mr. Suraj Naik, learned counsel for the appellants at the outset made it clear that the appellants were restricting their challenge to the pay and recover order made by the Tribunal. He submits that in this case the vehicle which was involved in the accident was insured with respondent no.3 and there was no breach of any of the terms and conditions of the insurance policy. In particular, he submitted that the burden of establishing a breach is on the insurance company, and in this case, the insurance company had failed to discharge that burden. He, therefore, submitted that in this case the Tribunal erred in making a pay and recover order but should have foisted the entire liability only on the insurance company.

4. Mr. Naik submitted that RW4, the Assistant Director of Transport failed to produce the legally admissible documents before the Tribunal. He pointed out that RW4 claimed that he was producing a computerized copy of the details of the extract but factually what was produced was the photocopies without signatures and endorsements.

5. The Tribunal erred in overruling the objections raised on behalf of the appellants. He submits that on a bare statement of RW4 that the appellant no.1 was not holding a driving license as of 30.04.2011 i.e. the date of the accident, the insurance company cannot be said to have discharged the burden which law casts upon it.

6. Mr. Naik also referred to the evidence of appellant no.1 in this case and pointed out that this appellant had asserted on oath that he was having a valid driving license on the date of the accident but had handed over the original driving license to one Joaquim Fernandes. He also deposed that he was holding a colored xerox but has now misplaced it. Based on this, Mr. Naik submitted that no inference of any breach of the terms and conditions of the insurance policy could at all have been drawn in this matter.

7. Mr. Naik submits that a conviction for an offense under Section 3 of the Motor Vehicles Act 1988 is quite irrelevant in the present proceedings. He relied on Suresh Mohan Chopra v/s. Lakhi Prabhu Dayal - AIR 1990 SC 1979 to submit that in such matters the burden is always on the insurance company to prove the breach of the terms and conditions of the insurance policy. He submitted that in this case as well no license was produced by the driver but still the Hon'ble Supreme Court held that the insurance company had not discharged the burden that the law casts upon it.

8. For all the aforesaid reasons Mr. Suraj Naik submitted that the impugned Judgment and Award to the extent it holds the appellant no.1 solely liable and exonerates the insurance company may be interfered with.

9. Mr. E. Afonso, learned counsel for the insurance company defends the impugned Judgment and Award based on the reasoning reflected therein. He points out that the evidence of the first appellant inspires no confidence whatsoever and is unbelievable. He points out that the insurance company has discharged the burden by examining the RTO officer who has clearly and categorically deposed that appellant no.1 was not having any driving license on the date of the accident and such a driving license was issued only on 02.08.2011. He pointed out that the first appellant has also been convicted under Section 3 of the Motor Vehicles Act and even paid the fine. He submits that appellant no.1 claimed to possess a xerox copy of the license but did not produce the same. Appellant no.1 did not even remember the license number or the date and the validity period. Based upon all this Mr. Afonso submitted that this appeal may be dismissed.

10. Mr. Afonso also pointed out that in the entire appeal memo there