Hon'ble VYAS, J.— In this special appeal filed under Section 18 of the Rajasthan High Court Ordinance, 1949, appellant National Insurance Company is challenging the judgment dated 14.05.2002 passed by learned Single Judge in S.B. Civil Misc. Appeal No.851/2001, whereby, the learned Single Judge allowed the appeal and set aside the finding of the learned Tribunal upon issues No.3 and 4 in the judgment and award dated 26.05.2001, and, modified the award while holding the appellant insurance company liable jointly and severally to pay the amount of compensation in terms of the insurance policy Ex.-NA/1 along with other non-claimant-respondents.

2. The main contention of learned counsel for the appellant is that the learned Tribunal exonerated the appellant insurance company from the liability of compensation while deciding issues No.3 and 4 in favour of the insurance company, in which, the learned Tribunal held that there is gross violation of the policy conditions because the owner as well as driver both, despite issuing notice by the insurance company, did not like to produce the driving licence before the Tribunal and, thus, the burden of proving any licence to be fake and/or invalid which was to be proved by the insurance company was proved sufficiently by detailed oral evidence of two witnesses.

3. As per the appellant insurance company, the investigator specifically said in his oral evidence about the investigation in the criminal proceedings at the Sharda court that there was no copy of licence, either original or xerox, produced by the driver or owner. In this case also, details were not given about the licence by the driver or owner, therefore, in the circumstances, best possible efforts were made by the appellant insurance company in order to discharge the burden to prove under Section 149 that the driver was not holding any valid driving licence.

4. In the appeal, it is submitted that the learned Single Judge while reversing the finding on issues No.3 and 4, in this regard, has committed an illegality, therefore, the judgment rendered by the learned Single Judge dated 24.0-5.2002 in the miscellaneous appeal deserves to be quashed and judgment rendered by the learned Tribunal may be restored.

5. On the other hand, learned counsel appearing on behalf of the claimants submits that no error has been committed by the learned Single Judge while passing the judgment impugned in this special appeal. The learned Single Judge has followed the earlier judgment, reported in (1985) 2 SCC 574, in which, the Hon'ble Supreme Court has held that the insured is under no obligation to furnish evidence so as to enable the insurance company to wriggle out of its liability under the contract of insurance. The burden is not discharged on mere failure on the part of the partner of the firm who was driving the vehicle to produce the driving licence when called upon to do so in the cross-examination. Thereby one cannot draw an adverse inference that he did not have a valid licence. The insurance company should have got evidence to substantiate its allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company. Therefore, the learned Single Judge has rightly reversed the finding of the learned Tribunal on issues No.3 and 4 and has rightly held the insurance company liable for making the payment.

6. We have considered the rival submissions and perused the impugned judgment, so also, judgment and award passed by the Tribunal.

7. According to facts of the case, the Motor Accident Claims Tribunal, Bali passed judgment dated 26.05.2001 for award of compensation in the sum of Rs.1,63,000/- payable to claimant-respondents No.2 to 7 on the death of deceased Chhatar Singh, aged about 35 years, in the accident. The appellant insurance company is insurer of the truck involved in the accident. Learned Tribunal, in the claim petition filed by the claimants, framed the following issues :

^^1- vk;k fnukad 19-3-1996 dks

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