Guman Mal Lodha, J.

1. These are two appeals in a case of accident by a tractor in which Nandram was injured. Motor Accidents Claims Tribunal, Jaipur (hereinafter to be called as the Tribunal) has awarded compensation of Rs. 38,000/-against the owner Bheru and Saiduram and the driver Manya s/o Sukha. In addition to the above, this award was also made against the New India Assurance Company Limited, Sansar Chandra Road, Jaipur.

2. The New India Assurance Company has filed appeal No. 42/80 and Bhairon s/o Hira, Sedu Ram s/o Hukma and Mania s/o Sukha have filed Civil Misc. Appeal No. 56/80. Since both the appeals are against the same Award of the Tribunal they were heard together and are being decided by one common judgment.

3. Only point submitted by the New India Assurance Company (hereinafter to be called as the company) in this appeal is that the driver of the tractor was not having licence and therefore, as per the terms and conditions mentioned in assurance policy, the company is not liable. Objection was taken before the Tribunal but was rightly repelled that the company has failed to produce the policy in original or any authentic copy showing the terms and conditions.

4. Record has been called in this case. I have perused the policy (Ex. A. 1). After perusal I find that it is a policy for an insured. It is a printed paper where assurance company has itself got printed true copy. There is absolutely nothing to show authentication of a true copy by any authority whatsoever. Apart from that, most strange factors of this document (Ex. A. 1) is that it purports to policy as the caption is different Motor Policy but all the terms and conditions of the policy are missing from it. In one of the column it is written that Driver: Any of the following: Presumably the condition contemplated about the driver were sought to be reproduced, in this column. But all these conditions are missing even though so called, true copy purports to be a present one. After a blank space a provision is mentioned, on which Shri Bandhu wants to rely. Proviso is to be to some conditions or a provision to which it can be exception and is caved out as an explanation. If terms and conditions or provisions are missing then a proviso would be without head and heart and lungs. In other words, a proviso can never be intelligible without communicating what are the conditions of the policy to which this proviso would apply. It is a very strange state of affiairs that assurance company would take premiums from the owner of the vehicles, and avoid payments when the accidents are caused. It would then rush to the Courts to defend them. Even then they would defend negligently and fail to produce assurance policy or its true copy, from which the condition of the insurance can be inferred or found out. The fact that this is a public company and that too a nationalised company, spending public money in such litigations, by taking such defences negligently, should be a matter of serious and great concern to all those who are concerned with proper utilisation of the public funds.

5. The type of the printed copy submitted in this case amply shows that the defence in this case was frivolous and they should not have contested the case. To add insult to injury, the appeals are filed in this Court, even when, the case was being conducted, company did not think it proper to prove the terms and conditions of policy by the permissible methods of Indian Evidence Act. In view of this, the finding of the Tribunal appears to be correct, just and proper.

6. Mr. Srivastava has invited my attention to the judgment of this Court in New India Assurance Co. Ltd. v. Sushila Devi 1980 R.L.W. 38. This case on the contrary, clearly lays down that the burden of proof as contemplated by Section 96(2) of the Motor Vehicles Act, 1939, is solely on the insurers. That being so, this case cannot help Mr. Srivastava because it only confirms the view which I have extracted above that assurance company in cases of accidents claims, should plead and prove all the defence which are open to it, under Section 96(2) of the Act. In the instant case, company has expressly failed to prove that there was any condition by which vehicle was to be driven by a person holding a licence and if not, in case of breach, liability of the assurance company cannot be fastened. I am therefore, in agreement with the view of the Tribunal and that being so, I find no necessity to reproduce all the reasons given by the Tribunal for rejecting the defence of company on this point that company is not liable because the driver was not holding a licence. Ex. A. 1 according to me, is nothing more than a waste paper, and it cannot be taken as a document to prove that any such condition was in fact, in existence between the owner and the company.

7. No other point was argued by the learned Advocate for the company.

8. Coming to the case of owner and the driver 1 have given my thoughtful consideration to the submission of the Petitioner and gone through the evidence on record and the reasons given for holding that Bheru and Saidu were the owners and Maniya was the driver. More over since the claimant has claimed compensation upto Rs. 50,000/- and amount of the award being less, then it would be covered by it. In the very nature of things claimants would have right to realise the amount from the company first and in that view of the matter there would be no occasion where the owners of the vehicle would be required to pay anything. In this view of the matter, both these appeals fail. Claimants would get costs from the New India Assurance Co. Ltd., Sansar Chandra Road, Jaipur. Appeal of the New India Assurance Company Ltd., is dismissed with costs. There would be no order as to costs so far as the appeal of Bhairon and others is concerned.

9. The result is that both these appeals are dismissed as indicated above.