The burden of proof lies with the Insurance Company to establish the violation of the policy condition, and failure to discharge this burden can result in the dismissal of their appeal.

JUDGMENT :

Mr. Mir Alfaz Ali, J.

1. Heard Mr. S. Dutta, leaned Sr. Counsel and Mr. A.K. Gupta, learned counsel.

2. Both the appeals are directed against the judgment and award dated 25.07.2012 passed by the learned MACT, Tinsukia in MAC Case No. 20/2010.

3. The undisputed facts in these appeals are that one Shiv Nath Karmakar died in a motor vehicle accident on 03.12.2009, involving vehicle bearing registration No. AS-01- F-0993 owned by the respondent No. 7 (in MAC No. 25/2014) and insured with the appellant (in MAC App. No. 24/2014). The age of the victim was 35 years at the time of accident and the accident occurred due to the rash and negligent driving of the offending vehicle.

4. The legal heirs of Shiv Nath Karmakar filed an application before the MACT, Tinsukia seeking compensation and the learned Tribunal by the impugned judgment, awarded a compensation of Rs. 5,40,800/-, which consisted of Rs. 4,60,800/- towards loss of dependency, Rs. 80,000/- towards conventional heads, namely, loss of consortium, funeral expenses, loss of estate and loss of love and affection.

5. Aggrieved by the said award, the claimant, filed an appeal for enhancement of the award, which was registered as MAC Appeal No. 275/2013. The Insurance Company also filed an appeal which was registered as MAC Appeal No. 24/2014. Both the appeals having arisen out of the same judgment and award, are taken together for disposal by this common judgment.

6. Learned Sr. Counsel Mr. S. Dutta, for the appellant, oriental Insurance Company, in MAC Appeal No. 24/2014, referring to the accident information report proved as Ext.1, submits that on the relevant date of accident, the driver of the offending vehicle did not have valid driving license and as such the Insurance Company could not be saddled with the responsibility to satisfy the award because of violation of the policy condition, inasmuch as, the driver having a valid driving license was a condition of the policy.

7. Par contra, Mr. A.K. Gupta, learned counsel for the claimant submits that the driver of the offending vehicle had valid driving license, and as such, the award made by the learned Tribunal, fastening responsibility with the Insurance Company cannot be faulted.

8. Thus the sole question raised in the appeal filed by the Insurance Company is whether Insurance Company was absolved from indemnifying the insured because of violation of condition of the policy?

9. Contention of the Insurance Company is that the driver of the offending vehicle did not have valid driving license on the date of accident, which was a violation of the condition of policy, and as such, the insurer could not be saddled with the responsibility to indemnify the insured. The plea of the Insurance Company to avoid the liability is raised on the basis of an entry in the Accident Information report (Ext.1), where validity period of the driving license was mentioned as 28.04.2008. The impugned judgment and award transpires that the learned Tribunal, except referring to the said entry in the Ext.1, did not discuss the evidence brought on record on this issue, though, ultimately decided, that there was valid driving license at the time of accident. Learned counsel for the parties have taken me through the evidence adduced before the Tribunal. It is no doubt true that in the accident information report in column 8 (Ext.1), there was an entry to the effect, that driving license No. 52451 was valid upto 28.04.2008. The owner of the vehicle, who was arrayed as respondent No. 2 in the claim petition, testifying himself as defendant witness No. 1, stated, that as the original driving license was missing and a duplicate driving license was obtained from the concerned authority, which was renewed on 25.06.2008 and the same was valid upto 28.04.2011. In support of such averment in his affidavit, the owner also produced a certificate issued by t