The main legal point established in the judgment is the burden of proof on the Insurance Company to establish that the deceased did not possess a valid driving licence and the application of the principle of 'pay and recovery' in directing the Insurance Company to deposit the compensation and recover it from the owner of the lorry.

JUDGMENT :

In this appeal, the Insurance Company has challenged the award dated 17.01.2012 passed by the Commissioner for Workmen's Compensation, Chitradurga District ('the Commissioner' for short) in No.

2. For the sake of convenience, the rank of the parties shall be referred to as per their status before the Commissioner.

3. The brief facts of the case are, the first respondent/S.M.Nooruddin is the owner of the lorry bearing registration No.KA-02/AC-5018. He has employed the husband of petitioner No.1, son of petitioner Nos.2 and 3 and father of petitioner Nos.4 and 5 by name Ghouse, the deceased as driver in the said lorry. On 04.07.2008 at about 5.30 a.m., while the deceased was driving the said lorry from Namakkal to Hiriyur on NH-4 at Adakamaranahalli Gate near Jain temple cross, it was capsized killing the deceased at the spot. The legal representatives of the deceased have approached the Commissioner seeking compensation under Section 22 of the Workmen Compensation Act. The claim was opposed by the Insurance Company. After taking the evidence, the Commissioner by the impugned judgment awarded compensation of Rs.4,23,580/-with interest at 12% per annum. Aggrieved by the same, questioning the liability fastened against it, the Insurance Company has filed this appeal on various grounds.

4. Heard the arguments of Sri.B.C.Seetharama Rao, learned counsel for the Insurance Company and Sri.K.Shashikanth Prasad, learned counsel for the petitioners.

5. It is the contention of the learned counsel for the Insurance Company that the driving licence of the deceased was not found at the spot, there is no material placed before the Commissioner regarding valid driving licence held by the deceased. The owner has allowed a person to drive the vehicle without valid driving licence, thereby, he has violated the terms and conditions of the policy, also the provisions of the Motor Vehicles Act, thereby, the Insurance Company can avoid its liability. It is further contended that the Commissioner has erroneously assumed that the deceased was holding a valid driving licence and fastened the liability against the Insurance Company. The Commissioner is not supposed to give such a reasoning and cannot make any personal assumption and presumption that the deceased was holding a valid driving licence. In support of his contentions, he has relied upon the judgment in Beli Ram -vs-Rajinder Kumar and Others, AIR 2020 SC 4453.

6. It is contention of the learning Counsel for the petitioners that, primary burden of proving non-holding of valid driving licence by the deceased is on the Insurance Company. But no efforts are made by the Insurance Company to secure the RTO authorities nor placed any other evidence to establish it. Unless the Insurance Company discharges its primary burden, it cannot avoid its liability. To this effect, he has relied upon the judgment in Rukmani and others -vs-New India Assurance Co. and Others, (1998) 3 SCC 160 and United India Insurance Co.Ltd. -vs-Smt.Rathna and another, ILR 2016 KAR 1935 and contended that in view of the settled principles, the Insurance Company on its failure to discharge its burden cannot avoid its liability and has to indemnify the insured. It is also contended that the dispute between the owner and the Insurance Company is nothing to do with the petitioners in getting the compensation and he requested for a direction to the Insurance Company to deposit the compensation.

7. I have given my anxious consideration to the arguments advanced on behalf of both sides and also perused the materials on record.

8. There is no dispute as to the relationship between the parties. The petitioners are the dependents of deceased. First respondent is the owner of the lorry bearing No.KA-02/AC-5018. First respondent has employed the deceased as his driver and he has allowed him to drive the vehicle which met with an accident resulting in his death. There exists a relationship between the employer and employee between first re