The burden of proof on the insurance company regarding breach of policy conditions and the establishment of actionable negligence on the part of the driver were central legal points established in the judgment.

SABHAHIT, J.:-Thisisaclaimant'sappealinstitutedunderS.110-DoftheMotorVehiclesAct,1939(tobehereinafterreferredtoasthe' Act')againstthejudgementandawarddated19-1-1976inM.C.(MVC)No.106of1974passedbytheClaimsTribunal,Man galore,dismissingthepetitionforpaymentofcompensationfortheinjurysustainedbytheappellantinamotoraccident.

2. It is the case of the claimant that when he was going on the right side of the road near Jyothi Garage, Bunder, Mangalore, at about 2-30 p.m. on 22-4-1974 a lorry bearing No. MYG 5704 came from the opposite direction driven in a rash and negligent manner and caused the accident resulting in injuries to his left foot and left side ribs. Thus, he alleged that the accident was the result of rash and negligent driving of the lorry and claimed compensation of Rupees 50,000 from respondents.

3. Respondent 1 is the owner; respondent 2 is the driver of the lorry and respondent 3 is the insurer of the lorry. Respondents 1 and 2 did not contest the claim. Respondent 3 by its statement of objections contended that the driver of the lorry bearing No. MYG 5704 did not hold a valid licence to drive at the time of the accident. So, the insurance company was not liable to pay the damages.

4. During the hearing the claimant examined five witnesses including himself. As against that the insurance company examined one witness viz., R.W. 1 S.D. Ballal, the Manager of the National. Insurance Company, Mangalore Branch. The Tribunal after appreciating the evidence on record held that the claimant failed to prove that it was the lorry No. MYG 5704 that caused the accident and as such dismissed the claim of the petitioner by its judgement dated 19-1-1976.

5. Aggrieved by the said judgement the claimant has come up in appeal before this Court.

6. The learned advocate appearing for the appellant, vehemently contended that there was no dispute whatsoever that it was the lorry MYG 5704 that caused the accident, that the insurance company failed to establish that the driver who was driving the vehicle at that time had no licence to drive and that the evidence on record was sufficient to hold that the accident was the result of actionable negligence on the part of the driver of the lorry and as such the Tribunal ought to have awarded compensation to the claimant.

7. The learned counsel for the 3rd respondent insurance company submitted his arguments supporting the reasoning of the Tribunal in dismissing the petition.

8. The points therefore that arise for our consideration are :

(1) Whether the Tribunal was justified in holding that the identity of the lorry which caused the accident was not established ?

(2) If not, what is the quantum of compensation to which the appellant is entitled.

(3) What order ?

9. The petitioner has averred in the petition that it was the lorry bearing No. MYG 5704 which came from the opposite direction driven in a rash and negligent manner which caused the accident. Both the owner as well as the driver of the lorry were added as respondents in the petition. Neither the owner nor the driver entered appearance to contest the averments made. The insurance company also in its statement of objections did not challenge that it was the lorry bearing No. MYG 5704 which caused the accident. In fact, in paragraph No. 7 of the statement of objections, this is what the insurance company has stated :

"Without prejudice to the foregoing, it is submitted that the driver of the goods vehicle bearing registration mark MYG 5704 did not hold a valid driving licence to drive the said vehicle at the time of the alleged accident........."

Thus, even the insurance company in its statement of objections admitted that it was the lorry bearing No. MYG 5704 that caused the accident. That question was not thus agitated before the Tribunal at all. In the pleadings, the parties are not at issue that it was the lorry bearing No. MYG 5704 which caused the accident. That being so, the lengthy discussion of the Tribunal on the identity of the lorr