JUDGMENT : B.S. Chauhan, C.J. - This appeal has been preferred against the judgment and order of the learned Single Judge dated 26.3.2005 by which the appeal filed by the Respondent No. 1 against the award of the Commissioner for Workmen's Compensation-cum-Asst. Labour Commissioner, Cuttack for fixing liability of compensation on the Insurance Company has been allowed. 2. The facts and circumstances giving rise to this appeal are that one workman Raj Kishore Barik while driving the vehicle belonging to Respondent No. 1- Forest Development Corporation ( hereinafter called 'Corporation') met an accident on 17th June, 1996 and sustained head injury. He was immediately shifted to the hospital where he succumbed to the said injury on 18th June, 1996. His wife and minor children filed claim petition before the Commissioner under the provisions of Workmen's Compensation Act (hereinafter called the 'Act') contending that he was 35 years of age at the time of accident and was drawing a salary of Rs. 2500/-per month from the Corporation. Thus they are entitled for a sum of Rs. 2,30,000/-. 3. The matter was contested by both the parties and on the basis of the pleadings, the following issues were framed. (1) Whether the deceased was a workman within the meaning of W.C. Act ? (2) Whether the accident arose out of and in course of his employment under the O.P. No. 1 ? (3) Whether the amount of compensation claimed is due or any part thereof? If so, by whom payable? (4) Whether the Petitioners are entitled to Compensation if so, what is the amount? After completing the trial, an award was made on 2.1.1998. Issue No. 1 was decided in favour of the.claimants that the deceased driver was a workman under the Act. While deciding the Issue No. 2 the Commissioner came to the conclusion that the employee died during the course of employment, thus, the issue was decided in favour of the claimants. While deciding Issue No. 3, the Commissioner held that as the Insurance Company had denied their liability on the ground that the deceased driver had no valid driving licence at the time of the accident, it becomes the responsibility of the Corporation. While deciding the Issue No. 4, the Commissioner directed payment of Rs. 1,85,170/- together with interest ' 12% per annum w.e.f. 18.6.1996 till the date of payment. 4. While deciding the Issue No. 4, the Commissioner directed payment of Rs. 1,85,170/- together with interest ' 12% per annum w.e.f. 18.6.1996 till the date of payment. 4. Being aggrieved, the Corporation filed appeal, which has been allowed vide impugned judgment and order. Hence this appeal. 5. Learned Counsel for the Appellant has submitted that the appellate court proceeded with a presumption that certain findings of fact have been recorded by the Commissioner though no such findings have been recorded. It however held that once it has been found by the Commissioner that the driver was not having the valid licence on the date of accident, learned Single Judge could not shift the responsibility on the Appellant Insurer as it remained the liability of the Corporation-insured. Therefore, the appeal deserved to be allowed. 6. On the contrary, learned Counsel for the Respondent Corporation, has submitted that no findings of fact had been recorded by the Commissioner that at the time of accident the driver was not having any valid licence and therefore, learned Single Judge has rightly reversed the judgment of the Commissioner and shifted the liability to the Appellant and the appeal is liable to be dismissed. 7. We have considered the rival submissions made by the parties and perused the record. It appears that certain pleadings had been taken by the parties on the as to whether the driver was having valid licence on the date of accident or not. The Commissioner took note of the said pleadings, but did not frame a particular issue in this regard. No evidence whatsoever has been led before the Commissioner to prove or disprove the said fact. No finding has been recorded on this issue. So far as the liability is concerned, opposite party No. 1 being employer is held liable to pay the compensation to the Petitioners. For that, reason has been given as follows: But they claim to be indemnified by opposite party No. 2, M/s. New India Assurance Company Ltd., who denied their liability since the deceased driver had no effective driving licence at the time of accident which is a violation of the condition of the Insurance Policy. Hence,I hold that the employer, Divisional Manager, Orissa Forest Development Corporation Ltd., Baudha Division is held liable to pay the above compensation. (Emphasis added). Hence,I hold that the employer, Divisional Manager, Orissa Forest Development Corporation Ltd., Baudha Division is held liable to pay the above compensation. (Emphasis added). The Commissioner did not record any reason on the basis of which such a view has been taken except the plea taken by the insurer. No findings of fact has been recorded after appreciating the pleadings and evidence if any, as to whether workman was having valid licence or not. 8. Learned Single Judge while considering the appeal proceeded with the presumption that the Commissioner has recorded the findings of fact that the driver was not having the valid licence on the date of accident. It has been held as under. The Commissioner found that the deceased was a workman under the Appellant and the accident had arisen out of and in course of employment and as such the employer was liable to pay the compensation. The Commissioner further found that at the time of accident, the licence of the deceased had expired and since there was no valid driving licence, the Insurance Company was not liable. The aforesaid decision is under challenge. Admittedly, at the time when the accident occurred, the licence of the deceased had expired. The Commissioner has observed that since there was no effective driving licence at the time of accident, there was a violation of the conditions of the insurance policy. The learned Single Judge further considered a large number of judicial pronouncements and allowed the appeal on the ground that as the insured had permitted for driving of the vehicle by a person who had held a driving licence prior to the date of accident and was not disqualified to hold a licence at the relevant time i.e. the date of accident, the insurer was liable to make compensation. 9. There can be no quarrel to the settled legal proposition that the Court is supposed to examine the pleadings properly and then framed issues: In case proper issues are not framed but the parties are aware what is the point in controversy and lead evidence in support of their case and Court decide it taking into consideration of the evidence led by the parties, in such eventuality, it cannot be held that the findings stood vitiated as the issue had not been framed. 10. 10. In AIR 1930 57 (Privy Council), the Privy Council considered the scope of relying upon the evidence led on one issue to determine the other issue when the second issue had not been properly framed. It was held that generally it is not permissible to rely upon such an evidence in absence of factual foundation, but such a rule would not apply to a case where parties went to trial with the knowledge that a particular question was in issue, though no specific issue had been framed thereon and adduced evidence relating thereto. 11. In Nedunuri Kameswaramma Vs. Sampati Subba Rao the Supreme Court considered the case where all the issues had not been framed and the issues which had been framed, could have been framed more elaborately, and held as under: Since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those by the other side, it cannot be said that the absence of an issue was fatal to the case, or that there that was mistrial which vitiates proceedings. We are, therefore, of opinion that the Suit could not be dismissed on this narrow ground and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. 12. Similar view had been reiterated by the Supreme Court in Nagubai Ammal and Others Vs. B. Shama Rao and Others, ; and Sayeda Akhtar Vs. Abdul Ahad, . Similarly, in Kunju Kesavan Vs. M.M. Philip I.C.S. and Others the Supreme Court observed as under: The parties went to trial, fully understanding the central fact whether the succession as laid down to the Ezhava Act applied to Bhagwathi Valli or not. The absence of an issue, therefore, did not lead to a mistrial sufficient to vitiate the decision. 13. In Kali Prasad Agarwalla v. M/s Bharat Coking Coal Ltd. and I Ors. AIR 1989 SC 1530 , the Apex Court held that where the parties going to trial with full knowledge of what they had to prove and adduce evidence in support of respective claims, the plea cannot be entertained that in absence of proper issues, evidence cannot be looked into. 14. In Bakshi Lochan Singh and Ors. v. Jathedar Santokh Singh and Ors. AIR 1971 Del. 14. In Bakshi Lochan Singh and Ors. v. Jathedar Santokh Singh and Ors. AIR 1971 Del. 277 , the Division Bench of the Delhi High Court observed as under: We do not find any substance in the complaint of the Appellants that issues were not framed in the Suit. The object of framing issues in a Suit is to determine the rival contentions of the parties so that the Suit may proceed with respect to those contentions. The Appellants have not pointed out to us any contention raised by them in the written statement which has not been dealt with by the learned Single Judge. That being so, the absence of issues cannot be said to have prejudice the Appellants. 15. In Smt. Kaniz Fatima v. Shah Naib Ashraf AIR 1983 All. 450 , the Allahabad High Court has taken the view that non-framing of issues on questions and recording findings thereon and passing decree on such findings is not permissible in law and further held that non-framing of issue on certain pleas raised by the parties and finding recorded on such plea cannot be made foundation of decision on any other plea merely because evidence had been led by the parties on former pleas. While recording the aforesaid proposition of law, the Court placed reliance upon its earlier Division Bench judgment in Jagannath Prasad Bhargava Vs. Lala Nathimal and Others wherein a similar view had been reiterated. The' Court further placed reliance upon the judgment of Oudh Court in AIR 1943 17 (Oudh) ; Ganno v. Srideo Sidheshwar ILR 1902 (2) Born. 360; and Haridas Mundhra Vs. Indian Cable Co. Ltd., and held that it was the duty of the Court to frame issues even if the counsel for the parties or the party did not insist for it as refusal by the counsel for a party to help in framing of issues did not absolve the Court from framing the issue unless it is satisfied that the Defendant did not want to make any defence. 16. In view of the above, it is evident that in normal course, it is the duty of the Court to frame issue taking into all the pleadings. In case the issue is not framed, and the parties are aware as what is the point in controversy and lead evidence, the trial will not vitiate for this reason. 16. In view of the above, it is evident that in normal course, it is the duty of the Court to frame issue taking into all the pleadings. In case the issue is not framed, and the parties are aware as what is the point in controversy and lead evidence, the trial will not vitiate for this reason. In the circumstances even if the evidence is not led, the pleadings and particularly admission made by any of the party may also be taken into consideration. 17. The Supreme Court has dealt with the issue in detail in New Indian Assurance Co. Ltd. Vs. Mandar Madhav Tambe and others, and categorically held that in case the driver was not holding the effective driving licence, the insurer cannot be fastened with the liability and a driver holding learner's licence cannot be regarded as a person having effective driving licence and in case the insurance policy makes it clear that in the event of an accident the insurer will be liable provided the vehicle was driven by a person holding valid driving licence or a permanent driving licence other than a learner licence, it cannot be fastened with any liability to indemnify the owner. 18. In Kashiram Yadav and Another Vs. Oriental Fire and General Insurance Co. and Others the Supreme Court had held that when the insured himself entrusted the vehicle to a person who did not hold an effective licence, the insured could be said to have committed the breach of condition of policy and in case he is found guilty of committing such a breach, the insurer can escape from the obligati Final Result : Dismissed