SHAMBHOO SINGH, J.

( 1 ) THE claimants have filed this appeal against the award dated 25. 3. 98 passed by II Member, Motor accidents Claims Tribunal, Mandsaur in claim Case No. 199 of 1997 whereby they were awarded compensation of Rs. 1,81,000.

( 2 ) THE claimants' case is that on 16. 12. 95 the deceased Tanwarsingh, husband of the appellant No. 1 and father of appellant nos. 2 to 4, was going on his motor cycle on Mhow-Neemuch Road. Near starch factory, the respondent No. 1 came from opposite direction driving his tractor No. MP-14-B-9439 with trolley No. MP-14-G-3878 insured with respondent No. 2, in rash and negligent manner and dashed against the motor cycle, as a result of which Tanwarsingh died on the spot. The appellants claimed compensation of Rs. 15,75,000. The respondents resisted the claim. Respondent no. 2, insurance company, inter alia, pleaded that the respondent No. 1 had no valid driving licence for driving the tractor and as such the owner committed breach of the terms and conditions of the policy, therefore, it was not liable to pay compensation. The Tribunal after appreciation of evidence held that the accident occurred due to rash and negligent driving of the offending vehicle by respondent no. 1 and awarded compensation of rs. 1,81,000. However, it exonerated the insurance company from payment of compensation on the ground that respondent no. 1 had no valid driving licence and as such he committed breach of the terms and conditions of the policy. The appellants are challenging this finding and also praying for enhancement of the compensation amount. Respondent No. 1 has also filed cross-objection.

( 3 ) MR. Samwatsar, learned counsel for the appellants, submitted that the Tribunal committed error in drawing adverse inference, that the driver had no valid licence on the ground that he did not produce the same in spite of the direction of the Tribunal and exonerating the insurance company from paying compensation.

( 4 ) THE insurance company pleaded that the owner of the offending vehicle committed breach of the condition of the policy that the driver of the vehicle had no valid licence at the time of accident, therefore, it was not liable to pay compensation. As the insurance company is claiming exoneration on the ground of breach of the condition of the policy, the burden is squarely on it to prove that breach has been committed by the insured and if breach was not proved by leading evidence, the insurance company would fail. In this case, the insurance company did not examine any witness nor produced any document which could prove that the driver had no valid licence. It is true that on the application of insurance company, the Tribunal directed the respondent driver to produce his licence and he failed to do so. But in spite of nonproduction of licence by the driver, the tribunal could not draw adverse inference against him that he had no valid licence. Their Lordships of the Supreme Court in case of Narcinva V. Kamat v. Alfredo antonio Doe Martins, 1985 ACJ 397 (SC), observed under similar circumstances that the respondent driver was under no obligation to furnish evidence as to enable the insurance company to wriggle out of its liability under the contract of insurance. The onus is always on the insurance company to prove that the driver had no valid driving licence to escape liability of payment of compensation. The Tribunal wrongly shifted the burden on the respondents. No officer or clerk from the concerned r. T. O. 's office was examined nor any letter was filed to establish that the driver had no valid licence. If for argument's sake, it is assumed that the R. T. O. informed the insurance company that without licence number, it could not be certified whether the driver had valid licence or not and the driver did not produce the licence, even then on the basis of non-production of licence, it cannot be inferred that the driver had no valid licence. The burden which was on the insurance company can

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