JUDGMENT
P.D. Mulye, J.
1. This appeal filed by the New India Assurance Co. Ltd. Under Section 30 of the Workmen’s Compensation Act is directed against an award dated 28th February, 1978 given by the Commissioner for Workmen’s Compensation, Indore in Case No. 26 of 78 whereby he has awarded a total compensation of Rs. 7,000/- in favour of the claimants respondent No. 1 Nansingh and respondent No. 2 Bhurabai who are the dependant-parents of their deceased son Daulat who died in the accident that occurred on 10th June, 1975 during the course of his employment as a tractor driver with respondent No. 3 Madhusudan who was his employer.
2. The short and undisputed facts giving rise to this appeal in brief are as under: The Claimant Nos. 1 and 2 are the parents of deceased Daulat. On 10th June, 1975 while the deceased was driving the tractor from Badwani to a party the tractor overturned and in the said accident the deceased died on the spot. The deceased admittedly was an employee of respondent No. 3 Madhusudan.
3. According to the claimants the accident occurred arising out of and in the course of the employment of their son Daulat. They filed the claim petition for compensation as dependants of the deceased. According to them the deceased was employed by respondent No. 3 Madhusudan as a tractor driver on a monthly salary of Rs. 200/-.
4. The respondent No. 3 Madhusudan by his written statement did not dispute the factum of accident as such but contended that the accident did not arise out of and in the course of his employment as deceased Daulat was not employed by him as a tractor driver and he never permitted or authorised the deceased Daulat to drive the said tractor. Further according to him the deceased was not drawing a salary of Rs. 200/- per month but was employed by him as a chowkidar on a monthly salary of Rs. 75/- per month. Admittedly the said tractor was insured with the appellant the New India Assurance Co.
5. The appellant in its written statement completely denied the claimants’ cash. Further according to the appellant the deceased was not having a proper and valid driving licence but had only a learner’s licence and therefore under the provisions of the Motor Vehicles Act, the insurance company is not liable to pay any compensation to the claimants.
6. The learned Commissioner on evidence on the basis of the issues arising between the parties found that the deceased Daulat was a workman as defined in the Workmen’s Compensation Act, that Daulat Singh was employed as driver by respondent No. 3 Madhusudan on 10th June, 1975, that the deceased received injury by accident arising out of and in the course of his employment under respondent No. 3 that he was employed on tractor number MPM-4596 at the time of the accident as driver, that he died because of the said accident, that the claimants-respondents Nos 1 and 2 are the dependants of the deceased, that the monthly wages of the deceased were Rs. 200/-, that the said tractor was insured with the appellant insurance company and thus ultimately awarded compensation of Rs. 7,000/- against the appellant as also the employer respondent No. 3 Madhusudan.
7. The learned couri$el for the apppeant relying on the provisions of Section 2 of the Workmen’s Compensation Act, which defines ‘dependant’ contended that the deceased Daulat Singh haying left behind a widow Meera Bai, she alone had a preferential right to claim the compensation as under the definition ‘dependant’ under the said Act, widow is shown at No. 1 serially. He therefore contended that she was a necessary jiarty and consequently the claimants as parents could not obtain the compensation under the said Act. In the present case, though Meera Bai said to be widow of deceased Daulat Singh has been examined the learned Commissioner has found that she has remarried and that there is no satisfactory evidence on record to come to a conclusion that in fact the said Meera Bai was the legally wedded wife of deceased Daulat Singh. Therefore this being a finding of fact no interference therewith is called for and this cannot be said to be substantial question of law though the learned Counsel for the appellant relying on the decision reported in R.B. Moondra & Co.V. Bhanwari 1971 A.C.J. 438 (Rajasthan), contended that a widow even after her remarriage is entitled to file petition under the Workmen’s Compensation Act for claiming compensation. However the definition of dependant’ Under Section 2 of the Act is an inclusive definition which uses the word ‘any’. The dependants in the said definition are not classified in different categories like 1, 2 and 3 nor the said definition nowhere provides, that the dependant mentioned in category No. 1 alone will have the right to claim the compen-sation and in absence thereof the persons mentioned in the other categories can file the petition for compensation. Therefore, I am unable to agree with the interpretation tried to be put forth cm behalf of the learned Counsel for the appellant that the widow alone if she is alive is entitled to file the claim petition even though she may have remarried as held in the Rajasthan decision (supra) which does not lay down the law that the widow alone in preference to the other dependants is entitled to file the petition.
8. The learned Counsel for the appellant further contended that the monthly wages of the deceased even according to the employer-respondent No. 3 were Rs. 75/- per month and not Rs. 200/- and consequently according to the schedule of compensation prescribed under the Workmen’s Compensation Act the claimant-respondents at best are entitled to a total compensation of Rs. 4,800/- only and not Rs. 7,000/-. However the learned Commissioner on evidence has found that monthly wages of the deceased Daulat Singh were Rs. 200/-. Therefore this also being a question of fact no interference with that finding is called for even though it was also tried to be argued, that the view taken by the learned Commissioner is wrong. But merely because as argued, that the view taken is wtong itself cannot be said to be a substantial question of law as the learned Commissioner had jurisdictioh to consider and assess the evidence and material on record which has properly been done in this case. This submission being devoid of substance cannot be accepted.
9. The learned Counsel for the appellant relying on the provisions of ‘Licensing of drivers of motor vehicles tinder chapter II of the Motor Vehicles Act, read with Rule 15 of the M.P. Motor Vehicles Rules which deals with Learner’s Driving Licence, contended that admittedly in the present case the deceased Daulat Singh had only a learner’s licence Ex. P-2 and he did not hold an effective driving licence as defined Under Section 3 of the Motor Vehicles Act with the result that Sub-section (1) of Section 3 of the said Act does not apply to a person driving a motor vehicle in any public place during the course of receiving instruction or of gaining experience in driving with the object of presenting himself for the test required by Sub-section (6) of Section 7 of the Act so long as:
(1) the driver is the holder of a learner’s driving licence in form L. Lr. to these rules entitling him to drive the vehicle;.
(2) there is beside the driver in the vehicle as instructor a person duly licensed to drive the vehicle and sitting in such a position as to be able readily to stop the vehicle;.
(3) there is affixed both to the front and rear of the vehicle a plate or card as set forth below….
10. He, therefore, contended that under the terms of the policy Ex. P-3 . the insurance company can be held liabje provided that the person driving holds a licence to drive the vehicles or has held and is not disqualified in holding or obtaining such licence even though under the provisions of the said policy the driver may include the insured and any other person provided he is in the insured’s employ and is driving on his order or with his permission. He therefore submitted that even though under the terms of the said policy the appellant insurance company has agreed to indemnify the employer in consideration of the payment of additional premium under the Workmen’s Compensation Act, 1923 still that condition has to be read as a whole in as much as it is only in the case of an accident to a vehicle driven by a driver having effective driving licence that the insurance company can be held liable as mentioned in the insurance policy. He therefore urged that on record there being only the learner’s licence Ex. P-2 and not an effective driving licence, the insurance company is absolved from its liability under the terms of the contract and in support of this submission he placed reliance apart from the evidence of the eroplpyer D.W. 6 Madhusudan (respondent 6) on the decisions reported in New India Assurance Co. Ltd. v. Devkaran 1978 ACJ 502 (M.P.), The Anand Insurance Company Ltd. v. Hasan All 1975 ACJ 471 (M.P.) and Ambujam v. Hindustan Ideal Insurance Co. 1981 ACJ 175 (Madras), though he did not dispute that as held in Northern India Insurance Co. v. Commissioner of Workmen’s Compensation Indore 1973 ACJ 428 (M.P.), the defences available to the insurance company under the Workmen’s Compensation Act are the same as provided in Section 95 and 96 of the Motor Vehicles Act and no other. It was therefore contended that on this ground also no award could be passed against the appellant insurance company as they are not liable to indemnify the insured in the facts and circumstances of this case as pointed out above.
11. This submission made by the learned Counsel for the appellant so far as the legal position is concerned no doubt has great force. But as held in the decision reported in Bishan Devi v. Sirbaksh Singh 1979 ACJ 496 (S.C.), it is for insurer to establish that the person driving the vehicle was not properly licensed on the day of the accident which admittedly took place on 10th June, 1975 as the learner’s licence Ex. P-2 is dated 5th April, 1975 and there is nothing on record tp indicate that even on the date of the accident the deceased had only a learner’s licence. Therefore the appellant on whom the burden lay haying failed to discharge the same by adducing the necessary evidence, I am of opinion that it has not been satisfactorily established in the present case that the deceased did not hold a valid effective licence on the date of the accident.
12. In the result for all these reasons, I do not see any merit in this appeal which is dismissed with costs. Counsel’s fee according to schedule.