SHIV KUMAR SHARMA, J. - (1.) THE claimant respondent Smt. Sheela lodged a petition under the provisions of the Workmen's Compensation Act, 1923 (for short `1923 Act') before the Workmen's Compensation Commissioner Dausa (for short `commissioner') with the averments that her husband Dilip Chand @ Duli Chand, who was employed as a driver on Truck No. RJ-29/g- 0205 owned by respondent Rameshwar Prasad, met with an accident in the course of his employment and expired on July 20, 1997. THE Commissioner vide judgment dated October 31, 2001 allowed the petition and awarded compensation in the sum of Rs. 1,78,490/- along with the interest at the rate of 12% from July 20, 1997. THE National Insurance Company, who was joined as respondent before the Commissioner, assailed the said award by filing appeal under Section 30 of the 1923 Act in the High Court Learned Single Judge vide order dated April 11, 2002 dismissed the appeal. THE appellant National Insurance Company in the instant Special Appeal seeks to quash the aforequoted orders of the Commissioner and the learned Single Judge.
(2.) IT is contended by learned counsel for the appellant that not only the owner of the impugned vehicle but also the deceased driver had violated the provisions of the Motor Vehicle Act, 1988 (for Short `m. V. Act') as well as the terms and conditions of the Insurance policy by having driven the insured truck while possessing a licence which stood expired on the date of accident. Since the victim was the driver himself who drove the insured truck without having a valid driving licence in violation of the terms and condition of the contract of insurance, the appellant cannot be held liable. IT is further urged that ratio indicated in New India Assurance Co. vs. Kamala (1), is not applicable to the facts of the instant case. We have given our anxious consideration to the submissions advanced before us and scanned the material on record. Section 167 of M. V. Act gives a choice to the claimant to make a claim under the 1923 Act and also the M. V. Act for the death or bodily injury of any person. But the claimant has to choose only one forum. In the instant case the claimant had decided to make claim before the Commissioner under 1923 Act. It is trite that the insurer is bound to reimburse the insured which he is liable to pay the third person the victim of the road hazards. It is for the insurance company to prove that the driver had no valid licence. In United India Insurance Co. vs. Mohd. Ashique (2), it was held that where the insurer had failed to establish that the driver of vehicle was not holding a valid licence at the time of accident and also did not discharge its burden to examine any official of RTO in respect of issuing of a licence then the insurer can not be absolved from its liability. In the case on hand concededly the appellant company did not adduce the evidence of official of RTO to establish that licence was not renewed. The evidence of Rameshwar Prasad, truck owner (DW. 1) and K. L. Gupta (DW. 2), adduced by the appellant company, in our opinion, falls short and it could not be proved that the driver was not having valid licence on the date of accident. It was official of the RTO who could alone establish that the licence was not renewed and on the date of accident the driver was not having valid licence. We thus do not see any infirmity in the impugned judgments. For these reasons we find no merit in the appeal and the same stands dismissed without any order as to costs. . ;