Onus is of the Insurance Company to prove that the driver had no valid licence.

KARPAGAVINAYAGAM, J.

( 1 ) THE Oriental insurance Co. Ltd. is the appellant herein. This appeal is directed against the award and the decree dated 28. 2. 1991 made in m. C. O. P. No. 500 of 1988 on the file of motor Accidents Claims Tribunal (Chief judge, Court of Small Causes), Madras directing the appellant to pay compensation of Rs. 2,42,000 to the respondent Nos. 1 to 4, as against the total compensation of Rs. 2,70,000 claimed.

( 2 ) THE facts leading to the filing of this appeal could be summarised as follows: on 16. 12. 1987 at about 9. 00 p. m. , the deceased Senthilkumar was riding on his motor cycle bearing registration No. TMS 3433 along with his friend in Erukkan-chery High Road from south to north near ramalingaswamy Temple. At that point of time, a van bearing registration No. TMJ 3645 belonging to the Aringar Anna drivers Co-operative Society Ltd. , the respondent No. 5 herein, driven by its driver in a rash and negligent manner, was coming from the opposite direction on wrong side and dashed against the motor cycle and caused grievous injuries to the deceased and the pillion rider. The injured persons were taken to the hospital. Senthilkumar thereafter died at the hospital. The wife and children of the deceased filed a petition in M. C. O. P. No. 500 of 1988 before the Tribunal against the Aringar anna Drivers Co-operative Society Ltd. and the Oriental Insurance Co. Ltd. who is the insurer of the vehicle claiming compensation of Rs. 2,70,000.

( 3 ) THE Aringar Anna Drivers Cooperative Society Ltd. , the respondent No. 1 in the main petition did not choose to be present and, therefore, it was set ex pane. The said claim petition was contested only by the respondent No. 2 insurance company, the appellant herein.

( 4 ) ON behalf of the claimants, three witnesses were examined and Exhs. P-l to p-5 were marked. On behalf of the insurance company, one witness was examined through whom Exhs. R-l to R-4 were marked. After consideration of the materials, the Tribunal concluded that the claimants were entitled to compensation and directed the respondent No. 5 and the appellant to pay jointly or severally the compensation of Rs. 2,42,000.

( 5 ) THE insurance company, who is the respondent No. 2 in the main petition, challenging the said award has filed this appeal. The main argument that was advanced by the insurance company before the Tribunal as well as before this court, is that the driver of the van belonging to the Aringar Anna Drivers Co-operative society Ltd. was holding the licence only to drive the autorickshaw and in the absence of any endorsement authorising its driver to drive the van during the relevant period, it cannot be said that the driver was having the licence to drive the vehicle involved in the accident and as such, the insurance company is not liable to pay any compensation. It is also pointed out that the appellant had discharged its burden of proof by examining RW 1 through whom exhs. R-l to R-4 were marked and that the driver was having the licence only to drive the autorickshaw.

( 6 ) ON the other hand, the learned counsel for the respondent Nos. 1 to 4 claimants, in support of the impugned award of the Tribunal, would contend that the insurance company cannot escape from its liability in making payment of the compensation by simply examining its own officer and by merely marking the xerox copy of the licence of the van driver for proving that the driver was not duly licensed to drive the van, in the absence of production of any document from the R. T. O. and as such, the insurance company had not discharged its burden and that the reasonings given by the Tribunal for ordering the compensation directing the insurance company to pay the compensation are perfectly valid.

( 7 ) I have given my careful consideration to the submissions made on either side.

( 8 ) AT the outset, I shall point out the contradictory stands taken by the appellant at two different stages. In the counter filed b