JUDGMENT 1. - This is the appeal by the insurance Company against the judgment and award dated 14.7.2010 passed in Claim Case No. 23/2007. 2. The contention of the present appellant is that admittedly the vehicle was goods vehicle and insured under the Goods Carrying Vehicles Liability and the essential condition of the policy is to ply the vehicle only under a permit, whereas at the time of the accident, the vehicle was not having any permit but in spite of this fact, the liability has been fastened upon the Insurance Company, which is erroneous. Furthermore, it has been stated that at the time of accident, the vehicle was in the control and supervision of Bhanwaroo Khan, who was the power of attorney holder of the owner. The owner was not having any control or supervision over the vehicle. In spite of the notice to the power of attorney holder Bhanwaroo Khan, the permit has not been produced and the learned Tribunal has assessed the income on higher side with any legal proof. 3. Per contra, the contention of the respondent-claimants is that there is no fault in the award and it is the duty of the Insurance Company to prove the breach of condition. The non-availability of the permit cannot fasten any liability on the complainant. 4. Heard learned counsel for the parties and perused the impugned judgment and award. 5. The first contention of the appellant is that the vehicle was plying without the valid permit. A notice was given to the power of attorney holder Bhanwaroo Khan but in spite of this, the permit was not produced and when the vehicle was plying without the permit, the Insurance Company should be exonerated from the liability and reliance has been placed on the judgment delivered in the case of Hari Singh v. Smt. Phool Wati & Ors., 2010 R.A.R. 321 (Raj.) , National Insurance Company Ltd. v. Challa Bharathamma 2004 AIR SCW 292 and Kamala Mangalal Vayani & Ors. v. M/s. United India Insurance Co. Ltd. & Ors., 2010 R.A.R. 113 (SC). 6. It is true that if a vehicle is plying without a valid permit, it is the breach of condition but, here is the present case, the Insurance Company has alleged the breach of condition. It is not in dispute that the vehicle was insured and the policy was in force. Ltd. & Ors., 2010 R.A.R. 113 (SC). 6. It is true that if a vehicle is plying without a valid permit, it is the breach of condition but, here is the present case, the Insurance Company has alleged the breach of condition. It is not in dispute that the vehicle was insured and the policy was in force. The claimants are not expected to prove that the owner of the vehicle has not committed any breach of any of the terms of the policy. It is the insurer who denied this liability under the policy and it is the liability of the insurer to prove the breach. Here, in the present case, admittedly the accident took place on 8.4.2007. According to the contention of the present appellant, notice to the power of attorney holder was given on 24.6.2010, nearly after more than three years and no notice has been served on the owner of the vehicle. Only power of attorney holder has been served. In Kamala Mangalal Vayani case (supra), it has been categorically held as under: "As noticed above, the owner-cum-driver had remained ex-parte. Once it was established that the vehicle was comprehensively insured with the insurer to cover the passenger risk, the burden to prove that it was not liable in spite of such a policy, shifted to the insurer. The claimants are not expected to prove that the vehicle had a valid permit, nor prove that the owner of the vehicle did not commit breach of any of the terms of the policy. It is for the insurer who denies its liability under the policy, to establish that in spite of the comprehensive insurance policy issued by it, it is not liable on account of the requirements of the policy not being fulfilled." 7. Looking at the above, it was the duty of the Insurance Company to prove that the vehicle was plying without valid permit. No liability could be fastened on the claimants to prove this fact and the learned Tribunal has rightly considered the issued and rightly decided in favour of the claimants. 8. Further, it has been alleged that the vehicle was not plying in the control and supervision of the owner. No liability could be fastened on the claimants to prove this fact and the learned Tribunal has rightly considered the issued and rightly decided in favour of the claimants. 8. Further, it has been alleged that the vehicle was not plying in the control and supervision of the owner. The claimants have specifically alleged that the respondent No. 8 is the owner of the vehicle and it was plying by the respondent No. 9 in the control and supervision of the owner. To this effect, nothing has been rebutted by the owner or the driver of the vehicle. The facts have not been controverted by the respondents and the learned Tribunal has rightly decided the issue No. 2 in favour of the claimants. 9. Further, the contention of the present appellant is that no documentary evidence has been produced in support of the fact that the deceased was running a medical shop and in absence of documentary evidence, income of the deceased cannot be assessed as Rs. 5000/- per month. 10. The contention of the claimants is that oral evidence is valid evidence and the same cannot be discarded unless controverted by any other evidence. He has placed reliance on the judgment delivered in the case of Arun Kumar Agarwal & Anr. v. National Insurance Company & Ors., 2010 MACD (SC) 223. 11. The learned Tribunal has considered the fact that the deceased was running a medical shop. The license was in the name of father of the deceased and in license, it has been mentioned that the deceased is the owner of the shop and taking note of the fact that the deceased was running a medical shop, income of Rs. 5,000/- has rightly been assessed. Looking to the documents produced, income of the deceased has been assessed and appropriate multiplier has been used. 12. The claimants have also relied upon the decision rendered in the cases of R.S.R.T.C. v. Khayali Lal & Ors., S.B. Civil Misc. Appeal No. 1134 of 2012; decided on 3.7.2012 , which is in relation to death of a child and the facts are quite different from the case in hand. Reliance has also been placed on the judgment rendered in the case of Rebeka Minz & Ors. v. Division Manager, United India Insurance Company Ltd. & Anr., Civil Appeals Nos. Appeal No. 1134 of 2012; decided on 3.7.2012 , which is in relation to death of a child and the facts are quite different from the case in hand. Reliance has also been placed on the judgment rendered in the case of Rebeka Minz & Ors. v. Division Manager, United India Insurance Company Ltd. & Anr., Civil Appeals Nos. 5399-5400 of 2012; decided 23.8.2012 , wherein the award has been set aside as the nonspeaking order was passed. It gives no strength to the respondents. 13. Further contention of the appellant is that payment has already been made and hence there is no justification interfering with the award. The learned Tribunal has considered the factum of the permit and at the same time, the income of the deceased has rightly been assessed and fair and reasonable compensation has been awarded. The proceedings of the case go to show that against the driver and the owner, the proceedings were ex-parte and they did not appear before the Tribunal in spite of the notice. The Insurance Company has also served notice on the power of attorney holder of the owner and no permit could be produced before the learned Tribunal and the contention of the Insurance Company is that the vehicle was plying without the valid permit and looking to the law laid down in the case of National Insurance Company Ltd. v. Challa Bharathamma (supra) that when a vehicle is plying without a permit, it is a breach of policy condition and it is ordered that the insurer would satisfy the award and at liberty to recover the amount from the insured.With the above observations, this appeal stands disposed of.Appeal disposed of. *******