An insurer cannot avoid liability for compensation due to an expired driver's license without proving the insured's negligence in fulfilling policy conditions.

Heard, learned counsel for parties.

1. Insurance Company is in appeal against the judgement of award and compensation in Compensation Case No.26 of 2004 under Section 166 of the M.V. Act, 1988 for which the liability to pay compensation is fixed on the appellant-Insurance Company.

2. As per the case of the claimant (s), he sustained injuries from an offending vehicle bearing registration No. BR16G-1713, which was being driven rashly and negligently on 02.04.2001 at about 11 am. The injury resulted in 75% permanent disability.

3. The claim case was filed impleading the owner, driver and the insurer of the vehicle as the party(s).

4. The claim case was contested by the appellant/O.P. No. 3 (Insurance Company) inter alia on the ground that claimant had not sustained any injury from the said vehicular accident. Insurance was not denied by the appellant-insurance company, however plea of breach of insurance policy was taken against the owner of the vehicle.

5. Learned Tribunal recorded a finding of fact that the accident was caused due to rash and negligent driving by the driver of the offending vehicle. Plea of violation of the terms and conditions of insurance policy was negated, in view of the documentary evidence of driving licence issued in favour of the Praphul Mahato who was driving the vehicle at the relevant time of accident. As per the report of the surveyor/ Investigator, it was Damodar Mahto who was driving the vehicle at the relevant time of accident, but his driving licence was not produced.

6. It is argued by the learned counsel on behalf of the Insurance- Company that driving licence of Damodar Mahto has not been adduced into evidence either on behalf of the claimant or the owner of this vehicle and therefore, he could not be verified.

7. It is further argued by learned counsel appearing on behalf of the Insurance Company that a definite finding has been recorded by learned Tribunal that the driving license of Praphul Mahto had expired on 12.09.2000, which was renewed on 26.04.2001, whereas the accident took place on 02.04.2001. Meaning thereby, at the time of accident, the driver was not having valid and effective driving license.

8. Having considered the submission, the main point for determination is, if the Insurance Company will have a right of recovery against the owner of the vehicle (respondent No. 2), for the reason that on the date of accident the driving license had expired.

9. Law is settled in this regard by Hon’ble Supreme Court in National Insurance Co. Ltd. v. Swaran Singh , (2004) 3 SCC 297 :

(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub- section (2)(a)(ii) of Section 149, has 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 the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time.”

10. In the present case there is no evidence that the driver of the offending vehicle was Damodar Mahto and not Praphul Mahto, against whom FIR and chargesheet were filed with regard to the accident. Learned Tribunal has rightly recorded that Praphul Mahto was having valid and effective driving license at the time