Honble Pankaj Mithal, J.—Heard Sri S.K. Malhotra learned counsel for the appellant and Sri T.S. Dabas and Sri Braham Singh learned counsel for the claimant respondent No. 1. No one has put in appearance on behalf of the respondents No. 2 and 3 despite deemed service of notice upon them in view of the office report.

2. This is an appeal by the Insurance Company under Section 173 of the Motor Vehicles Act against the judgment, order and award of the Motor Accident Claims Tribunal dated 21.8.1995 whereby the claim petition of claimant respondent No. 1 has been allowed in part and an award of Rs. 77,000/- with interest @ 12% per annum from the date of filing of the claim petition has been made and the Insurance Company has been held liable to pay the said compensation.

3. The admitted facts are that an accident took place on 2.7.1990 between the Maruti van car and a Motor Cycle and the claimant respondent No. 1 who was riding the motor cycle suffered injuries. Therefore, he preferred the claim petition. The tribunal found that the accident took place due to the negligence of the driver of the Maruti van which was insured with the appellant and the appellant was held liable to pay the compensation as the vehicle was being driven in breach of the policy.

4. The primary argument of Sri S.K. Malhotra learned counsel for the appellant is that the driver of the Maruti van was not having a valid driving licence on the date of accident and therefore the vehicle was being driven in breach of the Insurance policy. Accordingly, the tribunal has erred in law in shifting the liability upon the appellant.

5. In this connection he has placed reliance upon paragraphs 19 and 20 of the written statement filed on behalf of the appellant wherein it was categorically stated that the vehicle was being driven in breach of the policy and that the driver was put to a strict proof to show the valid driving licence. In the claim petition the owner of the vehicle had appeared before the Tribunal and had filed written statement but nothing was said about the licence of the driver. Even the driver was served with the notice and he had appeared before the tribunal but had not filed any written statement. In their presence a specific issue No. 3 with regard to licence of the driver was framed but neither the driver nor the owner produced any evidence to establish that the vehicle was being driven by the person holding a valid licence. As the appellant had not moved any application for summoning the record of the licensing authority, the tribunal by drawing adverse inference presumed the driver to be a valid licence holder and thus the liability to pay the compensation was saddled upon the appellant. The approach of the tribunal in this regard appears to be totally misplaced. There was nothing on record with regard to driving licence of the driver. No particulars as regards to licensing authority who had issued the driving licence were brought on record. Once the factum of licence was disputed and an issue in this regard was framed, it was for the holder of the licence or the owner of the vehicle to adduce evidence in that connection. No other person could have furnished any positive evidence with regard to the licence in the absence of details of issuing authority. Therefore in the absence of such information it was not possible for the appellant to lead any evidence or to move any application for summoning the record relating to the licence of the driver.

6. In accidental cases the primary liability to pay the compensation is upon the driver who is guilty of negligence and the owner of the vehicle who is said to be vicariously liable. The Insurance Company is only responsible to indemnify the loss provided the vehicle is covered by a valid insurance policy and is not being driven in breach of the same. Therefore, it was bounten duty of the driver or the owner of the vehicle to prove that the vehicle was being driven in accordance with the conditions of