SANGALAD, J. ( 1 ) THE insurance company has filed this appeal being aggrieved by the judgment and award passed by the m. A. C. T. X, Metropolitan Area, Bangalore in M. V. C. No. 97 of 1992 dated 23. 2. 1994. ( 2 ) MR. A. M. Venkatesh, learned counsel for the appellant submits that since the driver of the vehicle had no driving licence, the insurance company is not liable to satisfy the award. He also relied upon the decision in case of National Insurance co. Ltd. v. Shantabai, 1999 ACJ 391 (Karnataka ). He further took up the contention that the Tribunal has not discussed regarding the liability of the insurance company in detail. In addition to this, it is also submitted that an independent enquiry has disclosed that the driver of the vehicle had no licence. ( 3 ) IT is pertinent to note that such contention is taken up by the appellant from the beginning. ( 4 ) THE learned Member of the Tribunal has relied upon the decision in case of national Insurance Co. Ltd. v. A. Babu, 1990 ACJ 1003 (Madras ). It is pertinent to note that although the insurance company has examined one witness who stated that the driver of the vehicle had no driving licence, it has failed to issue the notice calling upon the owner and driver of the vehicle to produce the driving licence. This is the patent lacuna in the defence of the insurance company. In the decision cited by Mr. A. M. Venkatesh, it is held that the presumption cannot be raised as the insurance company did not examine anyone to state on oath that the driver had no driving licence. Of course, this aspect is done in the case on hand. But after having taken up the contention that the driver of the offending vehicle had no driving licence, had not called upon the owner and the driver to produce the licence. At this stage as the primary duty is not discharged, the appellant is estopped from taking up the contention that the driver did not have any effective driving licence. Hence, the appeal stands dismissed. Appeal dismissed. --- *** --- .