1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Civil Application No. 1342 of 2009 IN First Appeal St. No.6088 of 2009 [The Oriental Insurance Co. Ltd. Vs. Smt. Sunita Bhalchandra Hajib & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. P.N. Khagde, Adv., for the appellant. ----- CORAM : A.H. JOSHI, J. DATE : 02nd July, 2009. 1. This is an application for condonation of 59 days delay caused in filing of appeal. 2. Heard. 3. Accepting the reasons stated in the application to be good and proper, the delay is condoned. 4. Application is disposed of. Judge |Hedau| 2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. First Appeal St. No.6088 of 2009 [The Oriental Insurance Co. Ltd. Vs. Smt. Sunita Bhalchandra Hajib & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. P.N. Khagde, Adv., for the appellant. ----- CORAM : A.H. JOSHI, J. DATE : 02nd July, 2009. 1. This is an appeal by the Insurance Company, who had raised a defence, urging that at the time of driving the vehicle in question, the driver did not hold a valid and effective Driving License. 2. Heard learned Adv. Mr. P.N. Khagde for the appellant. 3. On perusal of Judgment, it is seen that the Tribunal has dealt with this aspect, and found that the burden to prove that the insured was not entitled to any indemnity due to breach 3 of terms of policy, and in particular that the driver of the offending vehicle did not hold a valid Driving License, was not discharged by the Insurance Company. The Tribunal recorded its findings in this regard as below:- 12. As to Issue No.3 :- Before deciding this issue, it becomes necessary to give finding as to whether the driver of offending truck was not holding valid and effective driving license and thereby insured committed breach of policy. Needless to mention that burden is on the insurer to establish that driver of offending truck was not holding valid and effective driving license and insured failed to comply the terms and conditions of insurance policy. However, no such evidence is led by insurer. The insurer had not summoned RTO or witness to prove that driver had not obtained valid and effective driving license and he was not holding it on the date of accident. Further, more, in order to absolve liability, it must be shown that the owner is guilty of negligence in fulfilling the terms and conditions of policy pertaining to the driving of vehicle by licensed driver. However, no such evidence is forthcoming. Suffice to say the defence of breach of policy holds no water. 4. Above quoted findings are not shown to be erroneous or illegal. 5. This Court is of the view that it is not sufficient to raise a plea in defence. It is indispensable to prove the plea, which is not 4 done by the appellant-Insurance Company. 6. In the result, appeal has no merit, and is dismissed. Judge |Hedau| 5