The burden of proof is on the insurer to establish breach of policy conditions, and positive evidence is required to substantiate the same.

JUDGMENT :

Mansoor Ahmad Mir, J.

1. Both these appeals are outcome of a common award, thus, I deem it proper to determine both these appeals by this common judgment.

2. Challenge in both these appeals is to award, dated 2nd November, 2011, made by the Motor Accident Claims Tribunal, Shimla, H.P. (for short ?the Tribunal?) in M.A.C. Petition No. 52-S/2 of 2009, titled as Sh. Phool Chand versus Smt. Veena Devi and others, whereby compensation to the tune of ? 75,000/- with interest @ 8% per annum from the date of the claim petition till its realization alongwith costs assessed at ? 5,000/- came to be awarded in favour of the claimant-injured and against the insurer (for short ?the impugned award?).

3. The owner-insured and driver of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.

4. The insurer has questioned the impugned award by the medium of FAO No. 36 of 2012 on the ground that the Tribunal has fallen in an error in saddling it with liability and exonerating the owner-insured of the offending vehicle for the reason that the owner-insured has not obtained the route permit of the offending vehicle at the relevant point of time.

5. The claimant-injured has also called in question the impugned award by the medium of FAO No. 96 of 2012 on the ground of adequacy of compensation.

6. The dispute involved in both these appeals revolves around issues No. 2 and 7, which read as under:

? (ii) If issue No. (i) is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP

(vii) Whether the vehicle in question was being driven in contravention of the terms and conditions of the insurance policy? OPR-3?

7. It was for the insurer to plead and prove that the offending vehicle was being driven in contravention of the terms and conditions of the insurance policy and the owner insured has committed willful breach, has not led any evidence, thus, has failed to discharge the onus.

8. My this view is fortified by the judgment rendered by the Apex Court in the case titled as National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 Supreme Court 1531. It is apt to reproduce relevant portion of para 105 of the judgment herein:

?105. .....................

(i) .........................

(ii) ........................

(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) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them.

(v).........................

(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply ?the rule of main pur