1. Registered owner of a motor vehicle involved in an accident is the appellant. The 1st respondent, who suffered injuries in the accident, filed a claim petition against the owner, driver and insurer of the vehicle seeking compensation of Rs.81,000/-. Claim was resisted by the appellant contending that he had transferred the vehicle to the 2nd respondent much earlier to the accident producing original sale agreement. 2nd respondent, who was impleaded as the driver of the offending vehicle resisted the claim disputing the negligence imputed against him. He contended that compensation if any payable was realisable only from the 3rd respondent - insurer. The insurer disputed its liability to indemnify the insured - the owner of the vehicle - contending that 2nd respondent had no valid driving licence at the time of accident and that a petty case had been charged against him for driving the vehicle without duly licensed. Tribunal, adjudging the claim, on the materials placed, fixed and awarded compensation of Rs.23,000/- to the claimant. In the course of the enquiry, the tribunal had directed the 2nd respondent to produce the driving licence on the request made by the insurer. 2nd respondent failed to produce the licence. That being taken note of, the tribunal upheld the contention canvassed by insurer over the breach of policy condition by the insured and the award was passed directing the insurer to pay compensation, but, reserving its right to recover that sum from the 1st respondent - owner. Aggrieved by the right of recovery given to insurer to realise the compensation after deposit from the appellant, he has filed this appeal.

2. I heard the learned counsel for the appellant – registered owner of the vehicle and 3rd respondent - the insurer. The short question emerging for consideration is whether the insurer company has established the defence canvassed under Section 149 (2) of the Motor Vehicles Act, for short, the 'Act' to exonerate it from the liability to indemnify the registered owner of the vehicle involved in the accident which was covered by its policy at the time of accident. The insurer has contended that a petty case was charged against the 2nd respondent for riding the motorcycle without licence. No material was produced by the insurance company to substantiate that contention. A copy of the policy alone was tendered and exhibited in evidence as Ext.B1 by the insurance company. The tribunal accepted the contention canvassed by the insurance company solely for the reason that the 2nd respondent failed to comply with its direction to produce his driving licence. It has not even looked into Ext.A2 charge sheet produced in the case nor made any reference thereto, to find out whether any accusation had been made against the 2nd respondent that he did not possess a driving licence at the time of accident. In such circumstances, whether non-compliance of the direction given by the tribunal to 2nd respondent to produce his driving licence without anything else produced by the insurance company, to substantiate its defence, could have been acted and relied upon by the tribunal to hold that there was breach of policy condition by the insured - owner of the vehicle, is the question involved.

3. What has to be proved to satisfy the breach of policy condition envisaged under sub section (2) (a) (ii) of Section 149 of the Act is the fault of the insured thereof, to avoid the liability under the policy. The apex court in National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781 (SC)) has held that the insurance company has to establish its case of the breach of condition of policy by the insured by cogent evidence, making it clear that the degree of proof which would satisfy the requirement thereof would indisputably depend upon the facts and circumstances of each case. Merely asking the tribunal to issue a direction to the driver of the vehicle to produce his driving licence and on such direction issued failure b