P.D. Mulye, J.
1. This appeal filed by the New India Assurance Co. Ltd. under Section 30 of the Workmen's Compensation Act, 1923, is directed against an award dated February 28, 1978, given by the Commissioner for Workmen's Compensation, Indore, in Case No. 26 of 1978, whereby he has awarded a total compensation of Rs. 7,000 in favour of claimants-respondent No. 1, Nansingh, and respondent No. 2, Bhurabai, who are the dependent-parents of their deceased son, Daulat, who died in the accident that occurred on June 10, 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: Claimants-respondents Nos. 1 and 2 are the parents of the deceased, Daulat. On June 10, 1975, while the deceased was driving the tractor from Badwani to 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. 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 the 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 Mm, 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 claimant's case. Further, according to the appellant, the deceased was not having a proper and valid driving licence, but had only a learning 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 Daulatsingh was employed as driver by respondent No. 3, Madhusudan, on June 10, 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 employedon 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 counsel for the appellant relying on the provisions of Section 2 of the Workmen's Compensation Act, which defines 'dependant' contended that the deceased, Daulat Singh, having 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, the widow is shown at No. 1 serially. He, therefore, contended that she was a necessary party 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 the widow of the 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 the deceased, Daulat Singh. Therefore, this being a finding of fact, no interference therewith is called for, and this cannot be said to be a substantial question of law, though the learned counsel for the appellant relying on the decision, R. B. Moondra and Co. v. Mst. Bhanwari, AIR 1970 Raj 111, contended that a widow, even after her remarriage, is entitled to file a petition under the Workmen's Compensation Act for claiming compensation. However, the definition of ' dependant ' under Section 2(1)(d) 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 anywhere provides that the dependant mentioned in category No. 1 alone will have the right to claim the compensation and only 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 on 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, R. B. Moondra and Co. v. Mst. Bhanwari, AIR 1970 Raj 111, 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'sCompensation 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 the 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 wrong, by itself cannot be said to be a substantial question of law as the learned Commissioner had the jurisdiction 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', under 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, exhibit 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 besides 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, exhibit P-3, the insurance company can be held liable provided that the person driving holds a licence to drive the vehicle 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 inasmuch as it is only in the case of an accident to a vehicle driven by a driver having an effective driving licence that theinsurance company can be held liable as mentioned in the insurance policy. He, therefore, urged that on record there being only the learner's licence, exhibit 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 employer, D.W. 6, Madhusudan (respondent No. 6) on the decisions in New India Assurance Co. Ltd. v. Devkaran [1978] ACJ 502 (MP); Anand Insurance Co. Ltd. v. Hasanali [1975] ACJ 471 (MP) and Ambujam v. Hindustan Ideal Insurance Co. [1980] 50 Comp Cas 404 ; [1981] ACJ 175 (Mad), though he did not dispute that as held in Northern India Insurance Co. v. Commissioner for Workmen's Compensation [1973] ACJ 428 (MP), the defences available to the insurance company under the Workmen's Compensation Act are the same as provided in Sections 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 in Bishan Devi v. Sirbaksh Singh, AIR 1979 SC 1862 ; [1981] 51 Comp Cas 128 (SC), it is for the insurer to establish that the person driving the vehicle was not properly licensed on the date of the accident which admittedly took place on June 10, 1975, as the learner's licence, exhibit P-2, is dated April 5, 1975, and there is nothing on record to 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, having 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.