The breach of a policy of insurance must have been committed by the insured, and the insurer would not be liable if the insured hands over the vehicle to a person who is not duly licensed to drive a vehicle.

Janak Raj Kotwal, J.

This appeal by the Insurance Company is directed against judgment and award dated 16-1-2010 rendered by the learned Motor Accident Claims Tribunal, Jammu (for short, the Tribunal) in Claim No. 247, whereby compensation of Rs. 2,10,000/- has been awarded in favour of claimant, herein respondent No.1, on account of personal injuries suffered by him in a road accident involving a maruti car bearing registration No. JK-14A-0480. Liability of paying the compensation has been fastened on the appellant with whom the offending car was insured for 3rd party risk.

2. Heard. I have perused the record.

3. Claimant, who claims to be a practising advocate, was travelling by the offending car from Samba to Jammu. Sukhdev Singh, herein respondent No.3, was driving the car. When the car reached near Transit Camp, Bari Brahmana, Jammu, it dashed against a CRPF truck from behind. Claimant sustained injuries all over his body. He was evacuated to Government Medical College Hospital, Jammu. He suffered 10% permanent disablement.

4. Claimant lodged claim for compensation under section 166 Motor Vehicles Act, 1988 (for short, the Act). Learned Tribunal vide impugned judgment and award found that accident had occurred due to rash and negligent driving by the driver of the offending car, herein respondent No.3 and awarded compensation of Rs.2,10,000/- in favour of the claimant under following heads :

1	Loss of future income	Rs. 60,000/-
2	Medical expenses	Rs. 50,000/-
3	Pain and sufferings	Rs. 50,000/-
4	Loss of amenities in life	Rs. 50,000/-
	Total	Rs. 2,10,000/-

5. The appellant's assail to the impugned judgment and award on two scores, firstly, that it was proved before the learned Tribunal that the driver of the offending car did not possess a driving license as at the time of accident and therefore, there was a breach of a condition of policy of insurance and insurer was not liable to indemnify the owner (insured) of the offending car by satisfying the award and secondly, that the compensation awarded by the Tribunal is much on higher side.

6. Learned counsel for the appellant, Mr. Vishnu Gupta, sought to point out that driver of the offending car, who was examined by the appellant as its witness before the learned Tribunal, had admitted in his statement that driving license was obtained by him on 19-9-2008 and therefore, it was proved that he did not possess any driving license as at the date of accident. Mr. Gupta further contended that appellant through the evidence of its legal executive, Deepak Gupta, had proved before the learned Tribunal the policy of insurance (EX.RW-1/DG), which contains a condition that company shall not be liable to indemnify the insured in case vehicle is driven by a person not duly licensed. Mr. Gupta argued that learned Tribunal has ignored this aspect and has erred in foisting liability on the appellant. Mr. Gupta relied upon Sardari & Ors. v. Sushil Kumar & Ors. 2008 (2) Supreme 451 : (2008 AIR SCW 2075) and National Insurance Co. Ltd. v. Mohd. Maqbool Khatana and others, 2014 ACJ 2066 : (2013 AAC 2859 (J&K) Learned counsel argued further that the amount of compensation for pecuniary loss has been awarded by the learned Tribunal without any evidence and the non-pecuniary damages are granted much on higher side.

7. Per contra, learned counsel for the respondents supported the award. Their argument was that breach on the part of insured has not been proved inasmuch as there is not even iota of evidence that insured wilfully had handed over the vehicle for driving to a person not possessing driving license.

8. Under Section 149 (2) of the Act insurer can defend its liability to indemnify the insured by taking a plea that there had been a breach of a specified condition of the policy of insurance inter alia a condition excluding driving of the insured vehicle by