IMPORTANT POINT
The insurance company must prove the breach of policy conditions to avoid liability, and the burden of proof regarding the driver's license validity lies with the insurer.

JUDGMENT :

Saral Srivastava, J.

Heard learned counsel for the appellant and learned counsel for the respondents.

2. The present appeal has been preferred by the appellant-insurance company challenging the award dated 6.1.2006 passed by the Motor Accident Claims Tribunal/Special Judge (SC/ST Act), Court No. 3, Deoria (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 224 of 2004 whereby Tribunal has awarded Rs. 7,25,404/- alongwith 7.5% interest as compensation to the claimants/respondents.

3. The claimants/respondent Nos. 1 to 4 instituted the claim petition for the death of one Indravati Devi who died in an accident on 28.6.2004. According to claimants/respondent Nos. 1 to 4, deceased-Indravati Devi was traveling on Tempo No. U.P.-52-F-0451 and when the said tempo reached near Khukhund crossing, it met with an accident with delivery Tempo No. U.P.-56-T-0054. Indravati Devi suffered injuries in the said accident and died.

4. The Tribunal framed as many as four issues. The appeal has been filed challenging the finding of the Tribunal on the issue Nos. 1 & 2.

5. On the issue No. 1 with regard to occurrence of the accident and negligence of the driver of tempo, the Tribunal considered necessary evidence and material on record and found that deceased died in the accident due to rash and negligent driving of driver of Tempo No. U.P.-52-F-0451.

6. On the issue No. 2 in respect of driving licence of driver of Tempo No. U.P.-52-F-0451, Tribunal held that no driving licence was filed on record, and burden was upon the appellant-insurance company to prove that driver of the Tempo No. U.P.-52-F-0451 was not holding a valid driving licence, and since insurance company failed to prove that driver of the Tempo No. U.P.-52-F-0451 was not holding a valid driving licence, therefore, the said tempo was being driven by the driver holding a valid driving licence.

7. Challenging the aforesaid award, learned counsel for the appellant has contended that the F.I.R. has been lodged by Arjun Gaur husband of the deceased in respect to the alleged accident wherein it is stated that the accident had taken place due to rash and negligent driving of driver of Tempo No. U.P.-56-T-0054, therefore, Tribunal has erred in law in holding that the accident had taken place due to rash and negligent driving of driver of Tempo No. U.P.-52-F-0451. It is contended that P.W.2-Jai Prakash Mishra was a planted witness and there is nothing on record clarifying under which circumstances the husband of the deceased in F.I.R. stated that the accident had taken place due to rash and negligent driving of driver of Tempo No. U.P.-56-T-0054. It is further contended that admittedly, both the vehicles involved in the accident were coming from opposite direction and it was a case of head on collision between two vehicles, therefore, drivers of both the vehicles were negligent in driving the vehicles. Consequently, it is submitted that Tribunal should have apportioned the negligence of both the drivers equally in the accident and should have accordingly, fixed the liability upon the owner of both the vehicles.

8. It is further contended that the Tribunal has erred in law in holding that burden is upon the insurance company to prove that Tempo No. U.P.-52-F-0451 was being driven by a person not holding a valid driving licence. It is submitted that no driving licence was filed on record and in such an event, it was not possible for the insurance company to verify the driving licence of the driver of Tempo No. U.P.-52-F-0451. Therefore, it is submitted that the burden was upon the owner of Tempo No. U.P.-52-F-0451 to prove that the Tempo No. U.P.-52-F-0451 was being driven by a person having a valid driving licence, and after the owner of the Tempo No. U.P.-52-F-0451 has discharged its burden, the burden would shift upon the insurance company to prove that the Tempo No. U.P.-52-F-0451 was being driven by a person not holding a valid driving licence.

9. In support of the case, learned counsel