P.D Desai, J.:— This appeal by the insurer of one of the vehicles involved in an accident which occurred on May 31, 1978, in Jamnagar in the vicinity of the Court building raises contentions relating to the appellant's liability to satisfy an award in the sum of Rs. 97,000/- made in favour of the first respondent (original-claimant). The insured vehicle was a motor cycle bearing No. GJP-8123 owned by the second respondent and driven at the material time by the third respondent. The Tribunal found that the first respondent who was the pillion rider on a scooter, the other vehicle involved in the accident, suffered injuries in the course of the accident as a result of the rash and negligent driving of the motor-cycle by the third respondent. The award, in so far as it decided the issue of negligence against the driver of the motor-cycle, has become final and it has also become final qua the quantum of damages awarded. The short question which requires determination, as indicated earlier is the appellant's liability to satisfy the award. It may be indicated at this stage that the appellant disputes its liability to satisfy the award on the ground that the third respondent who was driving the motor-cycle in question at the material time was not holding a licence to drive the vehicle and that, therefore, there was neither contractual nor statutory liability to satisfy the award.

2. Three contentions were urged at the hearing of the appeal. They are as follows:

(1) Under rules 299 and 300 of the Bombay Motor Vehicles Rules, 1959, it was the duty of the Tribunal to frame and record the issues upon which the right decision of the case appeared to depend and to proceed to record evidence on such issues which each party might desire to produce and that the Tribunal, in the instant case, committed an error of procedure in not framing an issue on a very material point, namely, whether the third respondent ever held or was holding a licence to drive the vehicle in question at the material time and that the failure to frame an issue on the said material point has resulted in miscarriage of justice.

(2) Having regard to the failure on the part of Tribunal to frame an issue on the material point mentioned above, an issue should now be framed and the same should be referred for trial to the Tribunal with a direction that the parties should be permitted to lead additional evidence on the issue and to submit to this Court its finding with reasons therefor.

(3) The Tribunal erred in law in holding that the burden was on the appellant to establish that the third respondent was not holding licence to drive the vehicle in question.

3. We are constrained to observe that all the three contentions advanced on behalf of the appellant are frivolous and that it ill-behoves a nationalised insurance company to found its claim in appeal on such pleas in the context of the legislation in question. It is true that it is the statutory duty of the Tribunal to ascertain upon what material propositions of fact or of law the parties are at variance and to frame and record issues upon which the right decision of the case appears to depend and to proceed to record evidence on such issues which each party might desire to produce. The duty cast on the Tribunal is similar to that which Order 14, rule 1 of the Civil Procedure Code casts on a civil Court. In the context of Order 14, rule 1, it has been held that though the duty to frame issues under the Code of Civil Procedure is cast on the Court, the pleaders appearing for both the parties must share that responsibility and that even if there was any failure to frame an issue on a material point on the part of the Court, it would be the duty of the lawyer appearing on behalf of the concerned party to invite the attention of the Court to the omission and to raise additional issues (see Bhaskar v. Narandas . A.I.R 1956 Bom. 608.). Therefore, even assuming in the instant case that the Tribunal committed an error of procedure in not raising an issue on the question whether the third respondent held a licence at the time of the accident or at any time in the past, the appellant cannot be allowed to capitalize on such error at the appellate stage when it is not shown that any attempt was made on its behalf at any stage of the trial to invite the Tribunal to raise such an issue. That apart, it is well-settled that omission to frame an issue on a material point is not necessarily fatal in all cases and under all circumstances. Even though no issue is framed, if the parties adduce evidence on the material fact and discuss it before the Tribunal and the Tribunal decides the point as if there was an issue framed on it, the decision will not be set aside in appeal on the ground merely that no issue was framed. The reason is that mere omission to frame an issue is not fatal to the trial of the claim application under such circumstances. In Nedunuri Kameswaramma v. Sampati Subba Rao . A.I.R 1963 S.C 884., the holding was that where 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 of the other side, it cannot be said that the absence of an issue was fatal to the case or that there was that mis-trial which vitiates the proceedings. In the instant case, the question whether the third respondent held the driving licence at the material time or ever held it was a matter in controversy between the parties right from the inception. In the claim petition it was alleged that the third respondent “had no licence”. The appellant in its written statement, Ex. 15, denied any liability on the ground that the third respondent held no valid driving licence and that, therefore, insurance coverage was not available. In para 9 of the written statement, Ex. 21, filed by the second respondent, the plea that the third respondent was not having licence on the day of the accident was unequivocally denied. There was furthermore a clear plea to the effect that the third respondent knew driving very well and that the said fact was known to all inhabitants of village Dodhia where the said respondent resided. Exactly similar is the case of the third respondent in his written statement, Ex. 24. The first respondent, under cross-examination on behalf of the appellant, denied any personal knowledge on the question whether the third respondent held a licence to drive the vehicle in question. The second respondent stated in examination-in-chief that the third respondent used to drive a motor-cycle since last seven to eight years. Under cross-examination on behalf of the appellant, he denied the suggestion that the said respondent held no driving licence. Detailed arguments were advanced before the Tribunal in support of the appellant's plea disputing the liability to satisfy the award on this ground. The Tribunal dealt with and rejected the plea on merits for the reasons stated in its award. Under such circumstances, it is obvious that the plea that the failure to frame an issue has vitiated the trial is wholly unfounded. For both the aforesaid reasons, the first submission must be rejected.

4. The plea that an issue should be framed now and the case remitted to the Tribunal for recording a finding on the issue after evidence is allowed to be led must fail once the contention dealt with above has been rejected. For the reasons which we have given above, we do not consider it necessary for a fair decision of the case to accede to such request. As indicated above, the parties fully knew that they were at variance on this material fact and they have led such evidence as they considered proper. The Tribunal has considered the matter from various angles and recorded its finding against the appellant on the point. Under such circumstances, there is hardly any case for raising and remitting the issue.

5. The Tribunal was entirely justified in placing upon the appellant the burden to establish that the third respondent was not holding a licence to drive the vehicle. Indeed, having regard to a clear pronouncement of the Supreme Court on the point in Bishan Devi v. Sirbaksh Singh, it was not open to the Tribunal to take any contrary view. In Bishan Devi's case, the insurer, in the course of its written statement, had taken up the plea, inter alia, that it was absolved from any liability in connection with the accident under the provisions of sections 95 and 96 of the Motor Vehicles Act, 1939, because the offending vehicle was being driven at the material time by a driver who had no driving licence and he was not even an authorised driver of the insured as he had stolen the vehicle. The insured, in the course of his written statement, denied the factum of accident by contending that the vehicle did not meet with any accident. There was no allegation in the said written statement to the effect that the vehicle was stolen nor was there any complaint with regard to the vehicle being driven by a person who held no licence. Again't the said factual background, the Supreme Court held that under section 96(2)(b)(ii) the insurer could defend a claim for compensation on the ground that the vehicle was being driven by a person who was not duly licensed. Apart from making the averment in the written statement, however, the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed. Then follow the following pertinent observations:

“It is the duty of the insurer to have substantiated his plea. We have no hesitation in rejecting the insurer's plea as false especially as the owner who filed the written statement a month later did not support the former's plea.”

6. The aforesaid holding of the Supreme Court, which is apposite in the context of the facts of this case which are also similar, leaves no scope for contending that the Tribunal erred in law in fastening the burden of proof upon the appellant. Herein also the case of the second and third respondents was at variance with that of the appellant. The allegation that the third respondent did not hold a licence was clearly and specifically denied, in their written statements. Besides, there was an unequivocal assertion in the written statements that the third respondent knew driving very well Still, however, the appellant failed to discharge its duty to substantiate its plea that the third respondent held no licence to drive the vehicle by leading any evidence on its own. It is significant to note that the second respondent, in the course of his deposition reiterated that the third respondent used to drive a motorcycle since about 7 or 8 years prior to the day on which his deposition was recorded. All that the appellant did by way of cross-examination was to make a suggestion that the third respondent held no licence. In our opinion, the case is fairly and squarely covered by the decision in Bishan Devi's case and the contention that the burden was wrongly placed on the shoulders of the appellant deserves rejection.

7. The appellant sought to sustain its ill founded submission on the basis of certain observations in Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Others , to the effect that the Court ought to draw an adverse inference when a party in possession of best evidence which would throw light on the issue in controversy withholds the same and that such adverse inference can be drawn against such party notwithstanding that the onus of proof did not lie on him. We do not think any assistance can be derived by the appellant from the observations in the aforesaid decision, in view of the fact that while considering the position of an insurer in the context of the provisions of sections 95 and 96 of the Motor Vehicles Act, 1939, and the limited defences available to the insuier in a proceeding under the said Act, the Supreme Court has in unequivocal terms held that it is the duty of the insurer to substantiate the plea that the vehicle was driven by a person who was not duly licensed and that a mere averment to that effect in the written statement and a mere suggestion to a party in that behalf in cross-examination is not sufficient to discharge the said duty. When there is a direct judgment of the Supreme Court governing the matter and delivered in a proceeding arising under this very statute, it is not open to have recourse to certain observations in a judgment delivered in a different context.

8. The foregoing discussion would show that there is no substance in this appeal and that it deserves to be dismissed. Before parting with the matter, we must once again record in clear and emphatic terms our disapproval of the conduct of a nationalised insurance company in bringing an appeal in such a cause before this Court. It is high time that such Companies, who now are limbs of the State, appreciated their responsibility in the context of a welfare legislation enacted by the Parliament of our socialist republic, with a view to providing a speedy remedy for awarding just compensation to unfortunate victims of motor accidents. It is, indeed, open to such Companies to bring appeals which raise substantial questions of law, but to bring appeals on frivolous issues, which are covered by judgments including those of the Supreme Court is not what is expected of such Companies in the new role which they have now assumed.

9. The appeal is dismissed with costs second respondents only, payable in different sets to the first and second respondents only.