The burden is on the insurance company to establish willful breach of the condition embodied in the policy, and the insurance company must discharge the burden by placing legal and cogent evidence before the Tribunal.

V.B. GUPTA, J.

1. This is an appeal u/s 173 of the Motor Vehicles Act,1988 (for short as the "Act") filed by National Insurance Ltd. against the order dated 13.09.05, passed by Ms. Ravinder Kaur, Judge, Motor Accident Claims Tribunal (for short as "Tribunal"), Delhi.

2. Facts in brief necessary for disposal of the present appeal are that on 25.12.03 at about 8.30p.m., the deceased, Sh. Devender Singh along with his wife was returning back to his home from the Gurudwara situated at Rajouri Garden. When they were crossing the Ring Road near the aforesaid Gurudwara, all of a sudden the offending vehicle tempo No. DL-IL-B-5759, driven rashly and negligently by its driver, came and hit the deceased. As a result, the deceased fell down on the pavement and sustained grievous injuries all over his body. After hitting, the driver of the said offending vehicle sped away towards Raja Garden along with the offending vehicle and Devender Singh was rushed to Kukreja Hospital in a precarious condition by a car bearing No. DL 6CD 4415. Thereafter, the driver of the offending vehicle stopped near police booth at Raja Garden Chowk and one Mr. Dharmendar, who was sitting just beside the driver, informed the police about the said accident and DD No. 52B was registered against the Driver.

3. Sh. Devender Singh remained admitted in Kukreja Hospital for one day and expired on 26.12.03 due to the injuries sustained by him in the said accident.

4. Petition seeking compensation was filed by the widow and children of the deceased against the driver, owner, and insurer of the offending vehicle.

5. The Tribunal based on the materials placed and the evidence on record found that death was caused due to rash and negligent driving of the driver and Therefore, vide impugned judgment, awarded compensation of Rs. 4,18,000/- along with interest @ 6% per annum from the date of filing of the petition i.e. 20.05.04 till its realization.

6. It has been contended by learned Counsel for the Appellant that the Tribunal erred in holding that the Insurance Company has failed to prove on record that the driving license possessed by the driver was invalid or ineffective and that too as per the knowledge of the owner. It is contended that it was a clear case of willful and intentional breach of the terms and conditions of the Insurance Policy on the part of the insured, since the driver of the offending vehicle did not hold any license and neither the owner could place on record the license of his driver, in spite of the fact that he had been served with the legal notice under Order 12 Rule 8 of the CPC nor give any reasons why he could not produce the copy of the driving license of the driver and thus the Appellant is not liable to pay the compensation amount in view of Section 149(2)(a)(ii) of the Act. The owner of the offending vehicle also had been served with the notice u/s 133 of the Act, on 27.12.03 i.e. one day after the alleged accident, which was duly received by him with the remark that "his vehicle was loaded and has gone out of station and as soon as the vehicle returns he would produce the driver of the said vehicle."

7. Further, widow of the deceased who got herself examined as PW3 had not disclosed the number and the colour of the offending vehicle and could not state whether the offending vehicle was open body or close body. As per the evidence on record, PW4 was the only eye witness, who could speak about the manner of accident and he clearly stated that the accident had taken place due to the fault of the deceased himself.

8. Thus, in view of Section 149(2) of the Act, directions to the Appellant to pay the claim amount to the claimants without recovery rights of the compensation amount even when the Appellant had successfully proved the limited defense available to it by the statute that there was a willful and intentional breach of the terms of Insurance Policy, is arbitrary, untenable and is bad in law and as such, is liable to be set aside.

9. Ld. C