IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 446 of 2009 a/w Cross Objections No. 85 of 2010 Decided on: 22.09.2011 Girdhari Lal Galodha …Appellant. Versus Shakti Parshad & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the appellant: Mr. Ramakant Sharma, Advocate. For the respondents: Mr. Ajay Kumar Dhiman, Advocate, for respondent No. 1. Mr. Ratish Sharma, Advocate, for respondent No. 2. Deepak Gupta, J. (Oral) This appeal by the owner is directed against the award passed by the learned Motor Accident Claims Tribunal (II), Kangra whereby the Insurance Company has been directed to satisfy the award, but has been given the right to recover the amount from the owner. 2. The only issue involved in this case is whether there was breach of policy on the part of the insured. The admitted facts are that the driver was one Shri Mohinder Singh and 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- before the learned Tribunal his driving license Ex. RW-2/A was placed on record, which is purported to have been issued by the Motor Licensing Authority Dharamshala and entitles him to drive a heavy transport vehicle w.e.f. 23.03.1998. The license was valid till 27.11.2008. The owner stepped into the witness box and stated that he had, at the time of employing Mohinder Singh, seen his driving license, and thereafter, employed him. 3. The learned MACT held that since the original license, which was purported to have been issued by the District Transport Officer, Amritsar, was fake, therefore, the subsequent renewal was also invalid and hence, the Insurance Company could not be held liable. There can be no quarrel with the proposition of law that if a license is fake or invalid, mere renewal of the same will not clothe it with validity. It will remain an invalid license. 4. Having held so, the question is whether the Insurance Company has been able to discharge its liability to show that there is breach of the policy by the insured. In National Insurance Co. Ltd. versus Swaran Singh and others, 2004 ACJ 1, the Apex Court in its concluding summary of findings held as follows: “102 .............. (i) ............... (ii) ............... (iii) The breach of policy conditions, e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of section 149, have to be proved to have been committed by the insured for avoiding -: 3 :- 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 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 duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle, the burden of proof wherefor would be on them.” 5. It is, thus, apparent that the Insurance Company to escape its liability must not only prove that there is a breach of the policy, but must establish that the breach was on the part of the owner of the vehicle. 6. In the present case, the owner had stepped into the witness box and stated that he had seen the driving license of the driver. As held above, it may be true that the license was an invalid license because the original driving license issued to Mohinder Singh was found to be fake, however, there was no reason for the owner to suspect the validity of the license. How can the owner know whether the license was genuine or not. Therefore, there was no breach on the part of the owner and as such the Insurance Company could not escape its liability. 7. Therefore, the award passed by the learned MACT is modified to the limited extent that the Insurance Company shall -: 4 :- not have the right to recover the amount from the appellant- owner. The appeal is partly allowed. Cross Objections No. 85 of 2010: 8. In my view, the amount awarded to the cross objector/injured is just and reasonable. The injured is a government employee and his avenues of earning have not been effected in any manner by the injury caused to him. Therefore, the cross objections are rejected. 9. Both the appeal and the cross-objections are disposed of accordingly, so also the pending application(s) if any. (Deepak Gupta) Judge September 22, 2011 (rajni)