JUDGMENT : Satyen Vaidya, J. Appellant has assailed award dated 03.05.2016, passed by learned Motor Accidents Claim Tribunal, Kinnaur at Rampur Bushahar in MAC No. 0100081/2013, whereby the insurer has been exonerated and appellant/insured has been fastened with liability to pay the compensation. 2. The claimants ( respondents No. 1 and 2 herein), filed petition under Section 166 of the Motor Vehicle Act, 1988 (for short, “the Act”) inter-alia claiming compensation on account of death of their son as result of rash and negligent driving of driver ( respondent No. 3 herein) while driving Tipper No. HP-06A-01230, owned by insured (appellant herein). The insurer (respondent No. 4 herein) was also impleaded as necessary party. Learned Motor Accidents Claims Tribunal (for short ‘Tribunal’ ), vide impugned award allowed the petition of claimants and granted them compensation to the tune of Rs. 19,52,360/- along with interest @ 6% per annum from the date of filing of the appeal. The insurer has been exonerated and the liability to satisfy the award has been fastened upon the insured. 3. The facts necessary for adjudication of appeal are that the insurer in its reply filed before learned Tribunal had taken a specific objection to the effect that the driver was not holding a valid driving license at the time of accident. On the basis of such objection issue No. 6 was framed as under:- “Whether respondent No. 2 was not having a valid and effected driving license to drive the vehicle at relevant time? OPR-3.” 4. Learned Tribunal decided issue No.6 in affirmative and as a result thereof exonerated the insurer from liability to indemnify the insured. Learned Tribunal relied upon the statement of RW-1, Rajesh Kumar, who had been engaged as an investigator by the insurer. In addition, reliance was placed upon the contents of application under RTI (Ext. RW1/B) moved by RW-1 and response to such application (Ext.RW-1/C) given by District Transport Officer, Motor Vehicles Department, Wokha Nagaland. Cognizance was also taken of certain communications received by learned Tribunal from the office of District Transport Officer, Wokha Nagaland in response to summons issued to such office for production of record. 5. Appellant/insured has taken strong exception to the findings recorded by learned Tribunal on issue No. 6 on the ground that such findings are perverse being not supported by any legal evidence. 5. Appellant/insured has taken strong exception to the findings recorded by learned Tribunal on issue No. 6 on the ground that such findings are perverse being not supported by any legal evidence. It has been contended that learned Tribunal had no jurisdiction to presume the fact that license held by the driver was fake. 6. I have heard learned counsel for the parties and have also gone through the record of the case. 7. It is settled proposition of law that onus to prove exception is on the insurer. Reference can be made to the following extract from the judgment passed by Hon’ble Supreme Court in National Insurance Co. Ltd. vs. Swaran Singh and others reported in (2004) 3 SCC 297 :- ‘66. A bare perusal of the provisions of Section 149 of the Act leads to only one conclusion that usual rule is that once the assured proved that the accident is covered by the compulsory insurance clause, it is for the insurer to prove that it comes within an exception. 67. In MacGillivray on Insurance Law it is stated: "25-82 Burden of Proof: Difficulties may arise in connection with the burden of proving that the facts of any particular case fall within this exception. The usual rule is that once the assured has proved that the case comes within the general risk, it is for the insurers to prove that it comes within an exception. It has therefore been suggested in some American decisions that, where the insurers prove only that the assured exposed himself to danger and there is no evidence to show why he did so, they cannot succeed, because they have not proved that his behaviour was voluntary or that the danger was unnecessary. Since an extremely heavy burden is imposed on the insurers if they have to prove the state of mind of the assured, it has been suggested in Canadian decisions that the court should presume that the assured acted voluntarily and that, where he does an apparently dangerous and foolish act, such danger was unnecessary, until the contrary is shown. In practical terms, therefore, the onus does in fact lie on the claimant to explain the conduct of the assured where there is not apparent reason for exposing himself to an obvious danger." 68. In Rukmani and Others vs. New India Assurance Co. In practical terms, therefore, the onus does in fact lie on the claimant to explain the conduct of the assured where there is not apparent reason for exposing himself to an obvious danger." 68. In Rukmani and Others vs. New India Assurance Co. Ltd. and Others [ 1999 ACJ 171 ], this Court while upholding the defences available to the insurer to the effect that vehicle in question was not being driven by a person holding a licence, held that the burden of the insurer would not be discharged when the evidence which was brought on record was that the Inspector of Police in his examination in chief merely stated, "My enquiry revealed that the respondent No.1 did not produce the licence to drive the abovesaid scooter. The respondent No.1 even after my demand did not submit the licence since he was not having it." 69. The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event, the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi (supra).” 8. Thus, it was solely upon the insurer to discharge the burden of proof regarding allegation of fake license. It was not a case that the driver of offending vehicle was not having any license at all. The insurer itself had taken into consideration a driving license belonging to the driver of the offending vehicle. 9. The question arises whether the insurer had discharged the burden. In my considered view, the answer has to be in negative, for the reasons as detailed hereafter. 10. RW-1, the investigator of insurer, by way of his evidence affidavit stated that he had submitted application under RTI Act and had received a response from District Transport Officer, Wokha Nagaland. He tendered on record both the documents as Ext. RW1/A and RW1/B. The mode adopted by the insurer to prove the fact was not in accordance with law. A fact can be proved either by oral or documentary evidence. He tendered on record both the documents as Ext. RW1/A and RW1/B. The mode adopted by the insurer to prove the fact was not in accordance with law. A fact can be proved either by oral or documentary evidence. In the case in hand, the fact that the license held by driver was not genuine could be proved by production of the original record of the concerned Licensing Authority, which purportedly had issued such license. It is only where the primary evidence is not available, secondary evidence is permissible. It was not a case where the primary evidence was not available. Thus, alleged response from the Licensing Authority Ext. RW1/C could not be considered as legal evidence to prove the fact. Even otherwise, it was nowhere mentioned in Ext. RW1/C that the license was not issued by concerned Licensing Authority. The only remark was “record not found”. From such remark the inference as drawn by learned Tribunal was not warranted. 11. Similar will the position in respect of the correspondence received by the office of learned Tribunal from Licensing Authority at Wokha Nagaland. The contents of the letters issued by District Transport Officer, Wokha Nagaland in response to summons issued to such authority to produce evidence cannot be the substitute of legal evidence. In judicial proceedings, the fact cannot be said to have proved except by proof on the basis of legal evidence. In such view of the matter, learned Tribunal has clearly erred in placing reliance upon aforesaid documents. In absence of such material, there was absolutely no evidence on record to prove the fact that the driving license was not genuine. 12. Learned counsel for the insurer placed reliance on judgment passed by Hon’ble Supreme Court in National Insurance Company Ltd. Vs. Geeta Bhatt and ors. reported in 2008 ACJ 1498 to assert that in the identical fact situation Hon’ble Supreme Court had assumed the driving license of driver as a fake one. However, the contention so raised on behalf of the insurer deserves to be rejected for the reason that in the facts of that case the investigator himself had visited the office of Licensing Authority and had inspected the record register. In the instant case, the investigator has not stated so. In fact, RW-1 has not stated that he had even visited the office of Licensing Authority at Wokha Nagaland. In the instant case, the investigator has not stated so. In fact, RW-1 has not stated that he had even visited the office of Licensing Authority at Wokha Nagaland. His statement is only to the effect that he had submitted application Ext. RW1/B and had received response Ext. RW1/C. In such circumstances, the insurer cannot derive any benefit from the above referred judgment. 13. In light of above discussion, I have no hesitation to set-aside the findings returned by learned Tribunal on issue No. 6. The impugned award is set-aside to the above extent. It is held that insurer has failed to prove the breach of terms of policy and thus, is liable to indemnify the insured in respect of payment of compensation to the claimants. 14. The appeal is accordingly disposed of, so also the pending miscellaneous application, if any.