The insurance company has the onus to prove whether the driver had a valid license at the time of the accident, and the court's decision is based on the failure of the insurance company to discharge this onus.

( 1 ) THIS appeal by the insurance company under section 173 of the motor Vehicles Act is against the award of the Motor Accidents Claims Tribunal dated 23. 10. 1998 in Claim Case No. 353 of 1996.

( 2 ) HEARD the learned counsel for the appellant.

( 3 ) THE only point urged by the learned counsel for the appellant in support of the appeal is that the driver of the vehicle, who caused accident, had no valid licence. Such contention, in our view, is not tenable. It is well settled that the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise and the insurer has to satisfy the Tribunal or the court that such violation or infringement on the part of the insured was wilful. In this connection judgment and decision in the case of sohan Lai Passi v. P. Sesh Reddy, 1996 acj 1044 (SC), may be taken note of. Para 12 of the said judgment at pp. 1051-53 of the said report appears to us to be relevant for the purpose and the same is set out hereinbelow: " (12) Now it has to be examined as to whether the insurance company can be absolved of its liability to pay the compensation in a case where the owner of the vehicle had got the vehicle insured, but the accident took place when it was being driven by a person not holding the driving licence. In the present case the accident took place when the Motor vehicles Act, 1939, was in force. Section 96 of the Act prescribed the duty of the insurer to satisfy the judgment against persons insured in respect of third party risks (the parallel provision being section 149 in the Motor Vehicles act, 1988 ). The relevant part of section 96 provided: 96. Duty of insurers to satisfy judgments against persons insured in respect of third party risks. (1) If, after a certificate of insurance has been issued under sub-section (4) of section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 95 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability. (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely: (a) xxx xxx xxx (b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely: xxx xxx xxx (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or xxx xxx xxx in view of sub-section (1) of section 96 if after the certificate of insurance has been issued in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy, the insurer shall subject to the provisions of the said section pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he was the judgment debtor, in respect of the liability. (Emphasis supplied ). Sub-section (2) of section 96 enjo