The absence of a valid driving license or disqualification of the driver is not a defense available to the insurer, and the burden of proof lies with the insurer to establish a breach of policy conditions by the owner of the vehicle.

1. The Appellant-Insurance Company has filed the present Civil 1st Misc. Appeal under Section 173 of the Motor Vehicle Act, 1988 against the award of the MACT, Rajouri dated 11.07.2012, passed in file No. 96/Claim, titled Mohd. Iqbal Mirza Vs Kabir Ahmed Shah & anr.

2. Appellant has challenged the impugned award/judgment on the grounds that the respondent No.1, more than 43 years old, filed petition u/s 166 of the M.V. Act on account of injuries received by him in an accident on 05.05.2008 when an Auto Rikshaw No. JK-11/4050 in which he was travelling turned turtle near Nerojal Nursery due to rash and negligent driving of respondent No.2. In the said accident some more passengers were injured. It was claimed in the petition that respondent No.1 was mason besides being agriculturist and suffered injuries to left leg and arm. It was claimed that he was treated in GMC Hospital, Jammu. The appellant was also arrayed as respondent besides respondent No. 2 who is the owner of the vehicle and was driving the same at the time of accident.

It is further stated that the respondent No.2 did not appear and was proceeded ex-parte by the Tribunal. The appellant filed detailed objections pleading various defences and prayed for the dismissal of the petition against it. It was pleaded that the Auto Rikshaw No. JK-11/4050 at the time of accident was being plied by its owner in breach of policy conditions as respondent No. 2 was not holding valid and effective driving licence issued by competent authority authorizing him to do so on the date of accident and this illegal act of respondent No.2 in plying the vehicle without holding valid driving licence was resulted in the exoneration of the answering respondent from its contractual liability to indemnity the owner. It was further pleaded that the owner while obtaining the policy from the appellant suppressed the fact that the vehicle was passenger vehicle, did not pay premium for covering the risk of passengers to be carried in the vehicle and got insured the vehicle as goods carriage. Thus, the risk of passengers including respondent No.1 was not covered under the policy as no premium had been paid by the owner for covering the risk of passengers to be carried in the vehicle and in the absence of premium respondent No.1 was travelling in the vehicle as gratuitous passenger though his risk was not covered under the policy. During trial, application of the appellant u/s 170 Motor Vehicle Act, 1988 was permitted by the Tribunal. Respondent No.1 examined Basharat Hussain and Dr. Shailender Sharma besides himself appearing in the witness box. The appellant in order to prove issue No. 4 and its defences examined Sakhi Mohd., Investigating Officer, to prove that respondent No.2 was not holder of driving licence and had been charge-sheeted besides other offences u/s 3/181 of M.V. Act. From the statement of Sakhi Mohd., it stood proved that respondent No.2 was driving the vehicle without being licensed by competent authority to drive the vehicle. The Tribunal below discarded the defences of the appellant and accepted the petition and directed the appellant to pay respondent No. 1 Rs.2,08,600/- with interest @ 6% P.A. from the date of filing of the petition till the date of payment. The appellant being aggrieved of the award challenges the same, inter alia, besides others on the following grounds:-

(A) That the award impugned in the present appeal is against the law and facts of the present case. The same is factually incorrect and has been passed in utter disregard to the legal and factual position and is liable to be set aside.

(B) That the Tribunal below committed grave illegality in deciding issue No. 4 against the appellant. From the evidence of the Investigating Officer it stood proved that respondent No. 2 (owner and driver) was driving the vehicle at the time of alleged accident without holding valid driving license to drive the same. That the respondent No. 2 who was owner of the vehicle w