ORDER
1. We have heard Sri R. P. Singh, learned Counsel for the appellants. Though the list has been revised but none has appeared on behalf of the respondents.
2. This is a first appeal from order filed against the award dated 24.5.1997 passed by Motor Accident Claim Tribunal, Kanpur Nagar in Motor Accident Claim Petition No. 283 of 1996.
3. Learned Counsel for the appellant has contended that the finding recorded by the Tribunal on issue No. 2 is that the driver was not having a driving licence of light motor vehicle for driving of private vehicle. It is contended that the finding is patently erroneous inasmuch as the driving licence a copy of which was a part of the record of the Tribunal and has been filed as annexure alongwith this appeal indicates that the driving licence of driver, Virendra Kumar son of Sunder Lal, who was driver of the vehicle involved in the accident, was issued on 23.9.1991, it was made valid for L.M.V. Transport w.e.f. 29.1.1993 and the aforesaid endorsement was again extended w.e.f. 13.3.1996. It is submitted that the licence also bears another endorsement to the effect that it is valid for L.M.V. (Private) and the same is valid from 29.1.1996 to 28.1.1999 under the order of the Licensing Authority.
4. Perusal of the aforesaid licence shows that licence of the driver namely, Virendra Kumar was also valid for L.M.V. (Pvt.) hence a contrary finding recorded by the Tribunal on issue No. 2 appears to be patently erroneous.
5. It is also contended that the liability to pay the awarded amount has illegally been imposed upon the owner of the vehicle whereas since the vehicle was duly insured and the driver was having a valid driving licence hence the liability to pay the awarded amount could not be fastened upon the appellants.
6. Learned Counsel has placed reliance on a three-Judges decision of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh and Ors. , and has relied on paragraphs 69 and 98 which are quoted hereunder:
69. The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the Insurance company fails to prove that there has been breach of conditions of policy on the part of the Insured, the insurance company cannot be absolved of its liability (See Sohan Lal Passi).
98. "Nicolletta Rohtagi was a case where a question arose as to whether an appeal by the insurer on the ground de hors those contained in Section 149 (2) would be maintainable. It was held not to be. There cannot be any doubt or dispute that defences enumerated in Section 149 (2) would be available to the insurance companies, but that does not and cannot mean that despite such defences having not been established, they would not be liable to fulfil their statutory obligation under Sub-section (1) of Section 149 of the Act.
7. In the present case the finding of the Tribunal on issue No. 2 has been found to be erroneous. The driver was holding a valid driving licence on the day of the accident, therefore, when the contrary has not been established by the insurer it cannot absolve itself of the liability.
8. In view of the foregoing discussion, the appeal is allowed to the extent that the amount awarded to the claimant respondents is to be paid by the insurance company-respondent No. 6 against whom the award is executable. In case any amount has been paid by the appellants in pursuance of impugned award, they shall be entitled to recover the same from respondent No. 6 and shall be entitled to six per cent interest on the amount from the date of deposit upto the date it is recovered from the insurer.
9. No order is passed as to costs.