This appeal is directed against the award dated 22.1.86 of M.A.C.T. Jhabua passed in Claim Case No. 34/84, whereby the respondents No.1 and 2 have been awarded a compensation of Rs. 36,000/- in all for death of Lalia who died in' motor accident on 3.6.1984.

The brief history of the case is that deceased Lalia was working as motor cleaner in M.P.M. 3581, which was owned by respondent No.4 and driven by respondent No. 3.The truck was driven in a rash and negligent way, it dashed against hillock against the road side and turned turtle. Lalia sustained injury and died in consequence thereof as such claim petition for compensation of Rs. 2.5 lac was filed. It was contested by the respondents including Insurance Company (appellant here). The learned tribunal has awarded compensation as above, holding it to be that the accident occurred due to rash and negligent driving of the vehicle by Respondent No.3. The contention of the Insurance Company (appellant here) that the driver was not having valid licence, was rejected. Hence, this appeal by Insurance Co. Learned counsel for appellant further contended that the insurance company was not given proper opportunity of adducing evidence to show that the driver was not having valid licence.

As against it, the learned counsel for the respondent No. 1 and 2 has submitted that the Insurance Company did not try to adduce the evidence and they declared as such during the trial. It has further been submitted that the owner of the bus has submitted on oath that the driver was having licence. Driver was proceeded ex-parte, he did not appear in the Court.

This Court was taken to the records of the tribunal. The insurance company though has raised an objection of absence of valid licence in para 5 of the written statement on 18.11.1985, they declined to adduce any evidence. No steps for producing the evidence was taken. Owner of the vehicle appeared in the Court and stated on oath that the driver was having valid licence.

The Insurance company could not discharge its burden of proving breach of conditions merely by putting certain questions in the cross-examination as has been done, in the instant case. No effort has been made to get the record of Licensing Authority produced in the Court. They further made statement that they did not want to adduce the evidence. Under these circumstances, it cannot be said that the Insurance Company has discharged its burden to prove breach of condition and absence of valid licence. Reference may be had to a case reported in 1985 ACJ 397 SC (Narcinva V. Kamatand another v. Alferdo Antorio Deo Martin and others).

So far as the filing of the application by Insurance Company is concerned, the same was filed at a very late stage, after having made a statement that they have no evidence. In such circumstances, the learned tribunal has rejected the application and it cannot be said that discretion exercised by the tribunal was improper in any way. .

In view of above, this Court does not find any substance in this appeal. The appeal is, therefore, dismissed without any orders as to costs. Counsel fee Rs.