The main legal point established in the judgment is the heavy burden on the insurance company to prove the breach of policy on the ground of the invalidity of the driving licence, and the application of the 'pay and recover' principle in case of third party risks.

JUDGMENT :

1. This is an Appeal preferred by Iffco Tokio General Insurance Company Limited against the judgment and award dated 10th May 2011 passed by the Motor Accident Claims Tribunal, Thane (M.A.C.T.) in Motor Accident Claim Petition No.651 of 2009 filed by the claimants, who are the parents and legal heirs of one Sachin Shankar Rane, who died on 5th April 2008 in a motor accident.

2. The brief facts are that, on 5th April 2008, at about 21.45 hours, Sachin Rane was travelling by a Pulsar motorcycle bearing no.MH-04/DM-1494 owned by his friend Milind Kale, as a pillion rider. That, they were proceeding from Manpada to Thane by Ghodbunder Road and while they were near Tatwadyan Vidhyapith, one unknown Maruti car coming from Tulsidham Road dashed into the said motorcycle at the crossing of Ghodbunder Road, resulting in grievous injuries to Sachin, who succumbed to his injuries at Civil Hospital, Thane. At the time of the accident, Sachin was 19 years old and he was serving with Graphic Charms Printers at Khopat, Thane as a Technician and was earning Rs.3,300/- per month. The motorcycle was owned by his friend, who was arraigned as Opponent No.1, (Respondent No.3 herein) in the Claim Petition, and insured by Opponent No.2, the Appellant herein. The Claim Petition was filed against both the opponents for compensation of Rs.4,26,900/-. Since the owner of the motorcycle did not appear in the Claim Petition, the Petition proceeded exparte against the owner. There is no dispute that the motorcycle was validly insured by the Appellant-Insurance Company. There is also no dispute that the accident took place on the date and time mentioned by the claimants. However, the issue that has been raised by the Insurance Company is that, the driving licence filed by the Applicants in the name of one Milind Sukhdev Kale, who was driving the motorcycle, has been found to be in the name of one Gafar Abdul Hasan Saiyyed, and that, at the time of the accident, the driver was not holding a valid driving licence and therefore there was breach of the terms and conditions of the insurance policy, and therefore, according to the Appellant- Insurance Company, the claim should have been rejected.

3. With respect to the issue regarding driving licence, the Tribunal has observed that although the numbers of the driving licences in the name of Milind Sukhdev Kale and Gafar Abdul Hasan Saiyyed bear the same number, but the date of issuing both these driving licences are different and their validity periods are also different. The Tribunal has observed that, no doubt, by way of putting on record the driving licence in the name of Gafar Abdul Hasan Saiyyed, the Insurance Company has created some suspicion but the Insurance Company could not clarify the ambiguity by confronting the copy of driving licence of Milind Sukhdev Kale to the employee of the Regional Transport Office (R.T.O.) who was a witness examined in the matter. The Tribunal has held that, in this backdrop, it could not be said that the insurer had discharged their burden and succeeded to prove that the driving licence issued in the name of Milind Sukhdev Kale was bogus. The Tribunal, in my view, therefore, rightly observed that, with respect to the objection taken by the insurer-Appellant to the driving licence of Milind Sukhdev Kale, that the burden heavily lied on the insurer to prove that Milind Sukhdev Kale was not holding the driving licence at the time of the accident and the owner of the vehicle viz., the Opponent No.1, (Respondent no.3 herein) has committed breach of the terms and conditions of the policy. The Tribunal has rightly relied upon the decision of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Swaran Singh and Others, (2004) 3 SCC 297. In paragraph 15, the Tribunal has categorically held that the Applicants had proved that the accident did take place when the deceased Sachin Rane was riding the motorcycle as a pillion rider and due to the dash of a