The insurance company has the burden of proof to establish the defences raised in a claim petition under the Motor Vehicles Act, 1988.

1. - The instant appeal is preferred by the appellant M/s. Shri Ram Trading through its owner Devkishan against the judgment cum award dated 29.7.2011 passed by the learned Judge, M.A.C.T., Udaipur whereby the respondents no. 1 and 2 the claimants were awarded a sum of Rs. 3,50,000/- as compensation for the death of their son Punjilal.

2. The respondents filed a claim petition before the learned Tribunal praying for compensation to the tune of Rs. 18,79,000/- for the death of their son Punjilal who was employed as a labour in a mine at Balesar. It was averred in the claim petition that while the deceased was working in the mine, a truck no. RJ 19-G-5987 owned by the appellant on which a compressor had been attached overturned because of rash and negligent use thereof by its driver and as a result thereof Punjilal working at the mine, was crushed under the vehicle and expired. The Tribunal decided the claim in favour of the claimants and awarded a sum of Rs. 3,50,000 as compensation to the claimants.

3. The defence raised by the Insurance Company regarding the vehicle being plied without a valid permit and the driver not having a valid licence to drive the transport vehicle were upheld and it was exonerated of the liability to satisfy the award. The appellant owner and the driver of the vehicle were held jointly and severally liable to satisfy the award . However, applying the principle of pay and recover, the Insurance Company was directed to satisfy the award and thereafter to recover the same by filing execution proceedings. The appellant who is the owner of the insured truck has approached this Court by way of instant appeal against the aforesaid direction.

4. Mr. D.L.R. Vyas, learned counsel for the appellant vehemently urged that the defences taken by the Insurance Company were wrongly accepted by the learned Tribunal. He submitted that the pleading of the Insurance Company was not commensurate with the defences and thus, the learned Tribunal erred in discharging the Insurance Company of the liability to satisfy the award. He relies on the decisions rendered by the Apex Court in Narcinva v. Kamat and Anr. v. Alfredo Antonio Doe Martins reported in (1985) 2 SCC-574 : AIR 1985 SC 1281 , Bondar Singh v. Nihal Singh reported in 2003(2) WLC (SC)-333 : AIR 2003 SC 1905 and National Insurance Co. Ltd. v. Challa Bharathamma reported in 2004 ACJ-2094 : AIR 2004 SC 4882 and the decisions of this Court in United India Insurance Company Ltd. v. Smt. Deobai reported in 2013(2) WLN- 234(Raj.) : 2014 AAC 243 (Raj.) , Shriram General Insurance Co. Ltd. v. Sharwan Lal reported in (2013) (2) WLN-264 , United India Insurance Co. Ltd. v. Smt. Raisa & Ors. reported in 2001(4) WLC (Raj.)-479 , National Insurance Co. Ltd. v. Sundari reported in 2011(4) CDR-1654 : 2012 AAC 1341 (Mad.) and the decision of the High Court of Uttarakhand in United India Insurance Co. Ltd. v. Prakashi Devi reported in 2011 ACJ-1683 . It was submitted that the burden of proof for establishing the defences to the hilt was upon the Insurance Company but as the Insurance Company failed to provide appropriate proof in this regard, the Tribunal was unjustified in accepting the plea raised by the Insurance Company.

5. Per contra, Mr. N.K. Joshi, appearing for the Insurance Company vehemently opposed the submissions advanced by the learned counsel for the claimant. It was urged that the Insurance Company by filing an affidavit of authorised officer took a specific defence that the vehicle in question had been adapted by attaching a heavy compressor. The Insurance Company had not insured the vehicle for the adaptation. A specific plea was also taken that the driver of the vehicle was not having a valid licence to drive the same. Learned counsel brought to the notice of this Court, the driver Kana Ram's the D/L Verification report Ex.A-2 and the certificate Ex.A-3 issued by the D.T.O. cum Licensing Authority, Jodhpur. He submits that according to the certificate Ex.A