The burden of proof is on the insurer to establish the breach of policy conditions, and mere breach does not entitle the insurance company to avoid liability.

Suresh Kait, J. (Oral)

1. The present appeal is directed against the impugned award dated 19.09.2012, whereby ld. Tribunal has granted compensation for a sum of Rs.13,43,758/- (wrongly typed as Rs.11,81,924/-) with interest @ 7.5% per annum from the date of filing of the petition till realization of the amount.

2. Ld. Counsel appearing on behalf of the appellant submitted that the driver of the offending vehicle was holding fake driving licence on the date of accident. In such eventuality, Ld. Tribunal ought to have exonerated the appellant from any liability. However, Ld. Tribunal directed the appellant / insurance company to deposit the amount and thereafter recover the same from respondent nos. 5 and 6, i.e., driver and owner of the offending vehicle.

3. Ld. Counsel for the appellant further argued that deceased was rickshaw puller and was 43 years of age at the time of accident and stated to be earning Rs.6,000/- per month. Since the proof of income was not filed, therefore, Ld. Tribunal has assessed the income of the deceased as Rs.6,422/- applicable to unskilled persons at the prevalent time as per the Minimum Wages Act. Ld. Counsel further submits that keeping the age of the deceased as 43 years into view Ld. Tribunal ought to have added 30% as future prospects, however, erred in adding 50% in his income as future prospects.

4. The issue of fake driving licence, no driving licence and invalid driving licence was dealt with by this court in the case of Santosh Chabra and Ors. v. Abhishek Gureja and Ors. MAC.A 805/2010 decided on 04.10.2013, wherein this court held as under:

“21. Law is settled on the issue of no licence, fake licence or invalid driving licence in the case of New India Insurance Company Ltd. v. Darshana Devi 2008 ACJ 1388. The offending vehicle at the time of accident was being driven by son of the owner of the vehicle, who was not holding any licence to drive the same. Ld. Tribunal, while awarding the compensation held that the amount shall be payable by the insurer initially, however, the insurer will be at liberty to recover the same from the owner of the offending vehicle. The award passed by ld. Tribunal was challenged by the Insurance Company, same was affirmed by the High Court and also upheld by the Supreme Court.

22. In New India Assurance Co. Ltd. v. Kamla and Ors. etc. 2001 ACJ 843, wherein it is held as under:

“The position can be summed up thus: The insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence..”

23. In National Insurance Co. Ltd. v. Swarn Singh, 2004 ACJ 1 while deciding the issue of driving licence, the Apex Court has held as under:

“(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) rai