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5. In the trial Court, mother of the Claimant was examined as P.W.1. Eye witness Praveen was examined as P.W.6. The doctors were examined as P.Ws.3 to 5. Easwaramurthy, owner of the garment company and Dr.C.Venugopal  Physiotherapist were examined as P.Ws.2 and 7 and Exs.A.1 to A.14 were marked. On the side of Respondents, Motor Vehicles Inspector was examined as R.W.1 and Assistant Administrative Officer in the Insurance Company was examined as R.W.2 and Exs.B.1 and B.2 were marked.

6. Upon consideration of oral and documentary evidence, Tribunal held that there was no evidence to show that the driver of the offending vehicle/ 3rd Respondent was not competent to drive the tourist maxi cab. The Tribunal further held that even if there is violation of policy conditions the Insurer cannot avoid liability unless there had been breach of policy conditions. The Tribunal further held that the 3rd Respondent had LMV driving licence and there was no proof to show that the 4th Respondent failed to take reasonable care and there was no fundamental breach of the policy conditions and held that the Appellant Insurance Company is liable to pay the compensation. Insofar as the quantum of compensation the Tribunal has taken the monthly income of the claimant at Rs.4,500/- and the percentage of disability at 95 percent and awarded compensation of Rs.19,59,895/- under the following heads:

27. Referring to the above answer of R.W.1, and referring to 2004 ACJ 1 (ORIETNAL INSURANCE CO.LTD. VS. SWARAN SINGH) the Tribunal held that 3rd Respondent might have obtained the badge elsewhere and that the same might not have been brought to the notice of the licensing authority and that there was no fundamental breach of the policy conditions. The Tribunal further held that even though the 3rd Respondent  driver was not in possession of valid driving licence to drive a maxi cab there was no fundamental breach of the policy conditions and therefore Insurance Company cannot avoid their liability on the ground that there was breach of condition.

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25. The position can be summed up thus:
The insurer and the insured are bound by the conditions enumerated in the policy and the Insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence. .... In the present case, if the Insurance Company succeeds in establishing that there was breach of the policy condition, the Claims Tribunal shall direct the insured to pay that amount to the Insurer. In default the Insurer shall (sic  not?) be allowed to recover that amount (which the Insurer is directed to pay to the claimant third parties) from the insured person."

32. All the subsequent cases are guided by Swaran Singh's case. Onus is always upon the Insurance Company to prove that the driver had no valid driving licence and that there was violation of breach of policy conditions. Whenever the driver did not possess valid driving licence and breach of Policy conditions where third party risk is involved, applying the ratio of decision in Swaran Singh's case is not automatic. In the facts and circumstances of each case, Court/Tribunal has to consider the nature of alleged breach of policy conditions and the Court may in its discretion direct the insurer to pay first and order recovery.