( 1 ) ALL these C. M. As. involve common questions of fact and law and therefore they are being disposed of by this common order. Except C. M. A. No. 1500 of 2001, all the C. M. As. arise out of common order dt 17-1-2000 passed by the Motor Vehicle accidents Claims Tribunal-cum-the Court of II Additional District Judge, East godavari, at Rajahmundry, in M. V. O. P. No. 355 of 1995 and seven other MVOPs. C. M. A. No. 1500 of 2001 arises out of order in MVOP No. 370 of 1995. ( 2 ) THE facts in brief are as follows. About 30 persons were traveling in the lorry bearing No. ATO 6219 on 7-2-1995 at about 7. 30 a. m. when they were going to rajahmundry towards Bhadrachalam being driven by one Marampudi Raju due to rash and negligent driving the lorry turned turtle on the ghatroad near Tulasipakalu village. In the said accident eight persons died and sixteen persons were injured. The dependents of the deceased, and the injured filed different MVOPs. ( 3 ) THE Insurance Company, the third respondent in the MVOPs opposed the claims inter alia on the ground that the deceased and the injured were not authorized to travel in the lorry which was a goods vehicle and that Raju, who was driver, was not having valid and effective driving licence as on the date of the accident. ( 4 ) THE parties went into trial and examined P. Ws. 1 to 5 and marked exs. A-1 to A-10 for the claimants. The insurance Company examined Assistant divisional Manager as R. W. 1 and marked exs. B-1 to B-5. Be it noted that Ex. B-1 is insurance Policy, Ex. B-3 is Motor Vehicle accident Report Form, Ex. B-4 is the endorsement allegedly given by the additional Licensing Authority, amalapuram and Ex. B-5 is the report of investigation made by Sri Krishi Associates, rajahmundry. The Tribunal on issue No. 1, dealing with rash and negligent driving aspect, seeks to place reliance on Ex. A-l certified copy of F. I. R, evidence of P. Ws. 1 to 5 and recorded a finding that the accident occurred due to rash and negligent driving of Morampudi Raju, the driver of the lorry. The Tribunal also rejected Exs. The Tribunal on issue No. 1, dealing with rash and negligent driving aspect, seeks to place reliance on Ex. A-l certified copy of F. I. R, evidence of P. Ws. 1 to 5 and recorded a finding that the accident occurred due to rash and negligent driving of Morampudi Raju, the driver of the lorry. The Tribunal also rejected Exs. B-3, B-4 and b-5 and held that the Insurance Company failed to prove that the driver was not having valid licence and accordingly awarded appropriate amounts in all the mvops. The details of the MVOPs, correspondent C. M. As amount claimed and amount awarded are as under. ( 5 ) SRI K. L. N. Rao, learned counsel for the appellant - Insurance Company firstly submits that being unauthorized passengers, the deceased as well as the injured persons were not required to be covered under the insurance policy in view of Section 147 (1) (b) (i) of the motor Vehicles Act, 1988 as it stood prior to Amendment by Central Act no. 54 of 1994. ( 6 ) THIS aspect of the matter is squarely covered by the judgment of the Supreme court in New India Assurance Co. Ltd. v. Satpal Singh wherein their Lordships held that under the new Act all insurance policies covering third party risks are not required to exclude gratuitous passengers in the vehicle though vehicle is of any type or class. It was held: under clause (ii) of the proviso to section 95 (1) of the Motor Vehicles act, 1939 (for short "the old Act") the insurance policy was not required to cover liability in respect of the death of or bodily injury to persons who were gratuitous passengers of that vehicle. But the proviso to Section 147 (1) of the motor Vehicles Act, 1988 (for short, "the new Act") shows that it is a recast provision by placing the erstwhile clause (iii) as the present clause (ii ). In other words, clause (ii) of the proviso to Section 95 (1) of the old Act is totally non-existent in the proviso to section 147 (1) of the new Act. Moreover, under Section 147 (2) of the new Act there is no upper limit for the insurer regarding the amount of compensation to be awarded in respect of death or bodily injury of a victim of the accident. Moreover, under Section 147 (2) of the new Act there is no upper limit for the insurer regarding the amount of compensation to be awarded in respect of death or bodily injury of a victim of the accident. It is, therefore, apparent that the limit contained in the old Act has been removed and the policy should insure the liability incurred and cover injury to any person including owner of the goods or his authorised representative carried in the vehicle. . . . . Therefore, under the new Act an insurance policy covering third-party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. ( 7 ) IN view of the binding authority of the supreme Court, the argument of the learned counsel for the appellant cannot be countenanced. ( 8 ) THE learned counsel for the appellant relied on Exs. B-3, B-4 and B-5 in support of the submission that Raju, driver of the lorry was having licence No. 746/93 issued by the Additional Licensing Authority, amalapuram which was valid from 1993 to november, 1996. When the investigator addressed a communication dt. 6-12-1994, ex. B-4 to the Regional Transport Office, amalapuram, an endorsement was given by the Additional Licensing Authority to the effect that the driving licence 746/93 was issued in favour of Venkata Ramana @ raju to drive light motor vehicles only. Placing strong reliance on these documents as well as evidence of R. W. 1, learned counsel would submit that as per insurance policy Ex. B-1 a person holding light motor vehicle licence was not authorized to drive heavy motor vehicles. Therefore, it is urged that the insurance company is exonerated from the liability. ( 9 ) SRI K. Venkata Rao, learned counsel for the claimants placed reliance on Ex. B-5 investigation report to submit that when the investigation report Ex. B-5 does not mention about Raju, Driver, not having licence under Ex. B-4 cannot be believed. It is also further submitted that neither the investigator nor the Additional Licensing authority who gave Ex. B-4 were examined and in the absence of their evidence Ex. B-4 is not validly proved. He placed reliance on the decisions of the Supreme Court in narcinva V. Kamat v. Alfredo Antonio Doe martins, Rukmani v. New India Assurance Co. It is also further submitted that neither the investigator nor the Additional Licensing authority who gave Ex. B-4 were examined and in the absence of their evidence Ex. B-4 is not validly proved. He placed reliance on the decisions of the Supreme Court in narcinva V. Kamat v. Alfredo Antonio Doe martins, Rukmani v. New India Assurance Co. Ltd. , and judgments delivered by various high Courts in United India Insurance Co. Ltd. v. Madiga Thappeta Ramakka, National insurance Co. Ltd. v. Santosh, National insurance Co. Ltd. v. Mainabai, Divisional manager, New India Assurance Co Ltd. v. Pranab Sundar Sahoo and National Insurance co. Ltd. v. Shashi Bala Gupta. ( 10 ) THE question therefore is whether the insurance Company has discharged the burden to prove that the Driver Raju was not having valid licence on the date of the accident. ( 11 ) IN Narcinva v. Kamat s case (2 supra), the Insurance Company contended that the driver was not having valid licence. The supreme Court observed that when insurer complains breach of one of the important terms of the contract, it is for the insurer to lead acceptable evidence and prove that it can seek exception under the policy. It was held: it is the insurance company which complains that there has been a breach of one of the important terms of the contract of insurance as evidence by the policy of insurance (the whole of which was not shown to us) and that the second appellant who was shows to be driving the vehicle at the relevant time, did not have a valid driving licence to drive the pick up van. The insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance. If a breach of a term of contract permits a party to the contract to not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led. ( 12 ) THERE cannot be any doubt that whenever Insurance Company pleads discharge of its liability for breach of conditions of insurance policy it is for them to prove that there is breach of conditions. The test in such a situation would be who would fail if no evidence is led. ( 12 ) THERE cannot be any doubt that whenever Insurance Company pleads discharge of its liability for breach of conditions of insurance policy it is for them to prove that there is breach of conditions. If the insurance company fails to prove that breach of conditions, they are liable under the insurance policy and therefore burden squartely lies on them. ( 13 ) IN Rukmani s case (3 supra) the supreme Court held that in the absence of evidence from any official of the Regional transport Authority, a statement that driver of the lorry was not having valid licence cannot be accepted. The following observations are apt. In our view, this evidence is not sufficient to discharge the burden which was cast on the insurance company. It did not summon the driver of the vehicle. No record from the Regional Transport Authority has also been produced. In these circumstances, the insurance company has not discharged the burden cast upon it under Section 96 (2) (b) (ii) of the motor Vehicles Act, 1939. ( 14 ) IN Madiga Thappeta Ramakka s case (4 supra) this Court while pointing out that if the driver did not respond to summons and did not appear to produce driving licence, adverse inference can be drawn that he was not having valid driving licence. It was also observed that a duty is cast on the insurance Company to take appropriate steps to summon the driver and examine him. When the driver is not examined it is the duty of the Insurance Company to summon Regional Transport Authority officials to produce licence as Regional transport Authority who issues driving licence keeps record of the licences issued and renewed by it. This Court further held: it is also the duty of the insurance company to summon the R. T. A. officials to produce the driving licence as the R. T. A. who issues the driving licene keeps record of the licence issued and renewed by it and the insurance company could have got the evidence produced to substantiate its defence. Either of the above two steps has not been taken by the insurance company. Either of the above two steps has not been taken by the insurance company. As already stated, if the driver, in spite of receipt of summons, has not been present and subjected himself for examination, the court is entitled to draw adverse inference. Whether a driver is having a valid driving licence or not is within the exclusive knowledge of the driver himself or at certain times the owner of the vehicle will be having that information as he is expected to know before he is taken as driver. The insurance company did not take any effective steps to discharge the burden. It is the case of the insurance company that one Adhinarayana Setty was appointed as investigating officer and he submitted his report, Ex. B-6. Without examining the said administrative Officer, his report, marked through another person, cannot be given due weight. The mere filing of the report of the administrative Officer, without examining him, does, nut absolve the responsibility of the insurance company in discharging the burden. ( 15 ) IN Santosh s case is supra) the Punjab and Haryana High Court, after referring to but rarajee Khimchand v. "yelamarti Satyam it was held. It is not being disputed that during the proceedings before the Tribunal no officer or other employee of the licensing Authority, Delhi had been examined as a witness. Only a certificate Exh. R-4 from the Licensing authority had been produced :n the form of a repoit. It is a settled principle of law that mere marking of the exhibit does not dispense with the proof of the document. The Supreme court in the case of Sait Tarajee khimchand v. Yelamarti Saytam, air 1971 SC 1865 , had considered the said question and held that mere marking of an exhibit does not dispense with the proof of a document. In para 15 it was held: (15) The plaintiffs wanted to reply on exhs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs books of account became important because the plaintiffs accounts were impeached and falsified by the defendants case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs books would not have supported the plaintiffs. " same view prevailed with the Division bench of the Gauhati High Court in the case of P. G. D, Otnbrain v. Collector of Kammp, Gauhati, AIR 1980 Gauhati 55. While relying on the decision in the case of Sait Tarajee Khimchand (9 supra ). ( 16 ) IN Mainabai s Case (6 supra) the appellant pleaded that driver of the truck had no valid and effective licence on the date of the accident and thereby there was breach of terms and conditions of the insurance policy. The appellant did not deposit expenses for summoning the witnesses and did not take effective steps to seek assistance of the Tribunal to summon witnesses under Section 169 of the Act. They relied on an endorsement made by regional Transport Officer on a letter that the driver was not having valid licence. The madhya Pradesh High Court did not rely on the endorsement observing: it is true that the endorsement on exh. D-3 mentions that driving licence no. D/l No. R-1688/jhs/86 was not issued to Ranveersingh but as the tribunal held, the appellant failed to prove this endorsement. It did not examine the officer who signed this endorsement nor it examined any person in whose presence this endorsement was signed. We find no reason to disagree with the learned tribunal, Exh. D-3 is not a public document and it has to be proved in accordance with the provisions of the evidence Act. This endorsement was not made in the presence of Pramod jhalani. Under such circumstances, the tribunal rightly held that it has not been proved that the licence of the non-applicant driver Ranveersingh was not genuine and was forged one. ( 17 ) THE Orissa High Court in Pranab sundar Sahoo s case (7 supra) considered a similar question. This endorsement was not made in the presence of Pramod jhalani. Under such circumstances, the tribunal rightly held that it has not been proved that the licence of the non-applicant driver Ranveersingh was not genuine and was forged one. ( 17 ) THE Orissa High Court in Pranab sundar Sahoo s case (7 supra) considered a similar question. It was held: it is no doubt true that the witness examined on behalf of the insurer has produced a copy of the letter purported to be written by the licensing authority - C. M. V. D. , Cuttack to the effect that driving licence No. 356/86, Cuttack, has not been issued to Birendra Das and hence, the driving licence seized in the case is a forged one. But it may be stated that in the absence of any plea of the insurer that the driver did not possess a driving licence or that his licence was a forged one, question of leading any evidence on that point could not arise. Further, in case the insurer wanted to establish this fact, it was required to produce the best evidence that was available which would be by production of the record relating to the licence in question. However, what has been produced, as has been observed above, is a letter which is not a certified copy of a public document. ( 18 ) I may also refer to a Division Bench judgment of Allahabad High Court in shashi Bala Gupta s case (8 supra) wherein it was held: in the instant case, the driving licence has been produced by the driver and the insurance company is disputed that it is not a valid driving licence. The burden of proof was on the insurance company to prove that lallan Soni had no valid licence at the time when the accident took place. As already stated the two letters filed by the insurance company before the tribunal are not public documents and as such they are not admissible in evidence. ( 19 ) THE rulings ot the Supreme Court and the High Courts would show that whenever the insurer claims that the driver of the offending vehicle was not having valid and effective licence as on the date of the accident, they have to prove the same by cogent and acceptable evidence. ( 19 ) THE rulings ot the Supreme Court and the High Courts would show that whenever the insurer claims that the driver of the offending vehicle was not having valid and effective licence as on the date of the accident, they have to prove the same by cogent and acceptable evidence. Mere producing a letter or endorsement from the regional Transport Officer/authority or any licensing authority that the licence relied on is not valid licence or effective licence would not amount to discharging the burden. The allegation that the driver was not having valid licence or effective licence and therefore the Insurance company stands exonerated from the policy obligations has to be proved by examining officials who gave endorsement or certificate with reference to the records maintained in the office of the licensing authority. ( 20 ) IN the absence of any driving licence it is always open to the insurer to get necessary records summoned from the office of the licensing authority and prove the documents by examining the licensing authority or a representative of the licensing authority. Mere filing of Xerox copy of the driving licence or endorsement to the effect that the driver was not having valid licence would not suffice to discharge the burden. In case, insurer pleads that the licence produced before the Tribunal is fake licence, it is for the insurer to summon the owner or the driver or appropriate authorities in licensing organization and examining them to prove that the licence relied on is fake licence. The claimants, who are third parties to the insurance policy cannot be burdened with proving allegations of the insurer that as driver was not having valid licence they have to be exonerated from the liability. ( 21 ) IN this case, except summoning r. W. 1, who admittedly has nothing to do with the accident, the insurer appellant herein has not examined investigator or licensing authority. ( 22 ) IN the result, the appeals fail and are accordingly dismissed. No costs.