JUDGMENT : - This is an appeal preferred by the original non - applicant no.3 New India Assurance Company against the judgment and award dated 3rd February, 2001 passed by the Member, Motor Accident Claims Tribunal, Chandrapur in Claim Petition No.169 of 1994. By the said judgment and award, the original non - applicant no.2 (owner of the offending vehicle) and non - applicant no.3 (appellant New India Assurance Company) were jointly and severally held liable to pay compensation of Rs.61 ,400/ - along with interest at the rate of 12% per annum from the date of filing of claim till realisation. 2. Aggrieved by the said A ward, original non - applicant no.3 New India Assurance Company has preferred this appeal and challenged the said A ward so far as it relates to joint liability of the appellant Insurance Company to pay the compensation. 3. Respondents no.1 to 3 are the legal representatives of deceased Shamrao Wahare who died in a vehicular accident that took place on 24 - 09 - 1994 at village Khutala. Truck bearing registration No.MWR - 4727 is involved in the accident. Respondent no.5 is the owner of the said vehicle and one Mahadeo was driving the said vehicle. Deceased Shamrao was running a tea and pan shop in front of his house near Gram Panchayat Road at village Khutala. While he was sitting in his stall on the said date, the offending vehicle dashed against his stall as a result of which stall collapsed on the head of Shamrao causing him fatal injuries to which Shamrao succumbed. Appellant Insurance Company has not disputed age and income of the deceased and quantum of compensation awarded by the Tribunal. 4. The respondent no.1 adduced evidence of only one witness. The Insurance Company adduced evidence of one witness, viz. Anil Wasni. The owner of vehicle did not enter into witness box though he resisted the claim of the claimant by filing Written Statement. 5. The appellant Insurance Company in its Written Statement filed before the Tribunal pleaded, inter - alia, that the driver of the vehicle did not have valid vehicle driving licence and hence, there was breach of the policy condition and the corollary is that the Insurance Company cannot be fastened with the liability to pay compensation to anyone in respect of the accident referred to in the claim petition. The Tribunal negatived the claim of the Insurance Company on the ground that the Insurance Company, failed to adduce evidence to prove that the driver of the truck was not having valid licence. After assessing the evidence on record, the impugned Award came to be passed by the Tribunal. 6. Heard the learned counsel for appellant - Insurance Company and learned counsel for respondents 1 to 3. None appears for respondent no.5. 7. In view of the· arguments advanced by learned counsel for the parties, the only short question that arises for consideration is, whether on facts and evidence on record, the appellant - Insurance Company is entitled to recover insured amount paid to the third party - respondents no.1 to 3 or not. 8. The Insurance Company has taken stand that the driver of the offending vehicle did not have valid licence and hence there was breach of the policy condition. The insurance policy is at exhibit - 42. One of the conditions of the policy is that any person including insured is entitled to drive provided that a person driving holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence. In support of its contention that the driver of the offending vehicle was not having a valid driving licence at the relevant time, the appellant Insurance Company has examined its Administrative Officer Shri. Anil Wasnik at exhibit - 50. He stated that driver of truck was not having valid driving licence at the time of accident. It is to be noted that driver Mahadeo was prosecuted by Police Station, Chimpur for the offences punishable under Sections 304A, 338 and·427 of the Indian Penal Code and Sections 3/181 and 185 of the Motor Vehicles Act. Section 181 of the Act provides that whoever drives a motor vehicle in contravention of section 3 or section 4 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. Section 3 of the Act provides that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him to drive the vehicle; and no person shall so drive a transport vehicle unless his driving licence specifically entitles him so to do. Section 3 of the Act provides that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him to drive the vehicle; and no person shall so drive a transport vehicle unless his driving licence specifically entitles him so to do. The very fact that driver of the offending vehicle was prosecuted for an offence punishable under Section 181 of the Act shows that he was driving the vehicle without valid licence. Despite raising plea in the Written Statement that the driver was not having valid licence, the owner of the vehicle has failed to enter into witness box to show that the driver was having a valid driving licence. It is also to be noted that during the pendency of claim petition, the appellant - Insurance Company issued notice under Order 12, Rule 8 of the Code of Civil Procedure to owner of the vehicle and driver calling upon them to produce Driving Licence of non - applicant no.1 Driver. It is to be noted that name of driver was deleted at the instance of original claimant. Respondent no.5 did not come forward to supply information regarding the driving licence of driver. Though the Insurance Company has prima facie shown the case that the driver of the vehicle was not having valid licence, the stand taken by the Insurance Company was negatived by the Tribunal on the ground that burden of proof is not discharged. Whether driver was having a valid driving licence or not could be said to be either within his or vehicle owner's knowledge. Section 106 of the Evidence Act reads as under: "106. Burden of proving fact especially within knowledge. - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." As the driver of the vehicle owner is in his employment, owner is expected to know as to whether the driver was having valid licence. As the appellant Insurance Company has come up with a specific plea in the Written Statement filed by it that the driver of the truck was not duly licensed, it was the duty of the owner of vehicle to enter into witness box and adduce documentary evidence. He was also expected to respond to the notice (exhibit - 33) issued by appellant Insurance Company. He was also expected to respond to the notice (exhibit - 33) issued by appellant Insurance Company. Inspite of this specific plea, the owner of the truck led absolutely no evidence to show that the driver of the truck was holding a valid driving licence. Hence, an adverse inference has necessarily to be drawn against owner of the vehicle that the vehicle had been handed over by him for being driven by an unlicensed driver and no award could be made against the appellant Insurance Company. 9. In State of West Bengal Vs. Meer Mohd. Umar reported in (2000)8 SCC 382 , it was held that the legislature engrafted special rule in Section 106 of the Evidence Act to meet certain exceptional cases in which not only it would be impossible but disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. This principle is reiterated by the Supreme Court in Sanjai Vs. State (NCT of Delhi) reported in (2001)3 SCC 190 and Ezhil Vs. State of Tamil Nadu reported in J.T. 2002(4) SC 375. It is well settled that if a negative averment is made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies and who asserts the affirmative, is to prove, and not he who avers the negative. 10. It is to be noted that under Section 149(2)(a)(ii) of the Act, the insurer is entitled to be made a party to defend the action on the ground that there has been a breach of the specified condition of the policy, namely, the condition excluding the driving by any person who is not duly licensed. In this case, appellant Insurance Company has succeeded in establishing that the owner of truck had committed a breach of condition of the policy. No doubt, Section 149 of the Act casts an obligation on the insurer to satisfy judgment and award against the person insured in respect of third - party risk. In this case, appellant Insurance Company has succeeded in establishing that the owner of truck had committed a breach of condition of the policy. No doubt, Section 149 of the Act casts an obligation on the insurer to satisfy judgment and award against the person insured in respect of third - party risk. However, said Section also provides that if it is found that the insured commits breach of condition of insurance policy, the insurer is entitled to recover that amount from the owner of vehicle and as such, the appellant - insurer is entitled to recover the amount of compensation deposited by it in the Court (for being paid to the original claimant) from respondent no.5 - owner of the truck involved in the accident. 11. In the result, appeal is allowed and the impugned judgment and award stands modified by adding the following clause in the operative portion of the impugned judgment and award : - "Appellant (original non - applicant No.3) is entitled to recover the awarded amount from the respondent no.5 (original non - applicant)/owner of the vehicle on account of the vehicle being driven by a person who had no valid licence to drive the vehicle". Appeal stands disposed of in the above terms. Appeal allowed.