The burden of proof and the retrospective application of amended provisions of the Act were the central legal points established in the judgment.

JUDGMENT

R. M. Joshi, J. - Being aggrieved by the judgment and award dated 10th July, 2002, passed in W.C.A. No. 9/2000 by the learned Commissioner, Workmen's Compensation Act, original respondent No. 2-M/s New India Assurance Co. Ltd. has preferred this appeal under Section 30 of the Workmen's Compensation Act, 1923 (for short 'Act').

2. The respondents No. 1 and 2 were the applicants whereas the appellant-insurance company and respondent No. 3-insured were the respondents No. 1 and 2 respectively in the claim proceedings before the learned Commissioner, Workmen Compensation Act and Civil Judge Senior Divisions, Osmanabad and shall be hereinafter referred to as the applicants and respondents No. 1 and 2 respectively.

3. The facts giving rise to the present appeal can be summarised as under :-

The respondent No. 1 is the owner of a Tractor bearing No. MH 25 B 3031, which was duly insured with respondent No. 2- insurance company. The respondent No. 1 had engaged the deceased Ismail as a driver, on payment of monthly wages of Rs. 3,000/- plus bhatta of Rs. 50/- per day. The tractor met with an accident on 3rd February, 2000 resulting in death of the driver-Ismail. The applicants, the parents of the deceased Ismail, claim to be the dependents and fled an application under Section 10 of the Workmen's Compensation Act, seeking compensation of Rs.3,00,000/- from the respondents being the insured and the insurer of the vehicle involved in the accident.

3. The respondent No. 1 admitted that he had engaged Ismail as a driver. He, however, denied paying Rs.3,000/- per month and daily bhatta Rs.50/- to deceased Ismail and contended that deceased was paid salary of Rs. 900/- per month. Respondent No. 1 also did not dispute that Ismail had died as a result of the injuries sustained in the course of the employment. Respondent No. 1 claim that the vehicle was duly insured and hence respondent No. 2 is liable to pay compensation to the applicants.

4. Respondent No. 2 contested the claim by fling written statement at Exhibit 22 thereby denying the contents of the application. It is contended that the deceased was never employed by respondent No. 1 and was not holding a valid driving licence for driving said tractor. This respondent disputed its liability to indemnify the respondent No. 1-insured for breach of terms and conditions of insurance policy.

5. Learned Commissioner framed issues vide Exhibit 23 and recorded evidence led before it. By the impugned judgment and award the application came to be allowed with direction to respondents No. 1 and 2 to jointly and severally pay compensation of Rs. 3,00,000/- to the applicants along with interest at the rate of 12% per annum from the date of fling of the application till realisation of the entire amount. While arriving at the said fnding, it is held that both the sides have failed to place on record driving licence of the deceased and hence an inference was drawn that the deceased was holding a driving licence on the date of the accident. As far as amount of compensation is concerned, evidence of applicants about deceased Ismail receiving wages of Rs.3,000/- per month came to be accepted as there was no rebuttal to the said evidence from respondents. Thus, with these fndings, the learned Commissioner had granted compensation to the applicants along with interest.

6. Present appeal is fled by respondent No. 2-Insurance Company predominantly on two grounds i.e. breach of condition of the policy as deceased was not holding valid driving licence for driving the tractor and that the learned Commissioner has committed error in considering the amended provisions of the Act for the purpose of grant of compensation by applying the same retrospectively.

7. Learned counsel for the appellant/original respondent No. 2 submitted that since the burden was on the applicants to prove that deceased was holding valid driving licence to drive the tractor, in absence of any evidence being adduced, the learned Commissioner i