spb/- 1 fa-05-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO. 05 OF 2011 ALONGWITH CIVIL APPLICATION NO. 3748 OF 2010 IN F.A.NO. 05/2011 Iffco Tokio General Insurance Co. Ltd. ... Appellant. V/s. Mr. Sanjay Jamuna Singh & Anr. ... Respondents. --- Mr. Rahul Mehta i/.by KMC Legal Venture the Appellant. ----- CORAM : D. G. KARNIK, J. DATE : 28th JANUARY, 2011. P.C. 1 This an appeal against an order passed under section 140 of the Motor Vehicles Act, directing the appellant -Insurance Company to deposit an amount of no fault liability. 2 The only ground urged by the learned counsel for the appellant is that the driver of the motor vehicle was not holding a valid driving license on the date of the accident and therefore, Insurance Company is not liable to pay any amount. The accident occurred on 31.03.2007. Though the driving license was issued to the driver on 19th April, 2007, the driver did possess a learning license valid for the period from 26.12.2006 to 25.06.2007. Thus on the date of the accident the driver possessed a valid spb/- 2 fa-05-11.sxw learning license. 3 Learned counsel for the appellant submitted that the holder of an learning license is entitled to drive a motor cycle only if he is accompanied by a person holding a permanent driving license and since the driver was not accompanied by a person holding a valid driving license, he was not permitted to drive the motor cycle. Whether the driver was accompanied by a person holding a valid driving license or not is a question of fact. The appellant company did not raise any contention in the reply to the application under section 140 that the driver of the motor cycle was not accompanied by a person holding a permanent driving license. In the absence of any such defense, the Tribunal was not required to consider whether the driver was accompanied by a person holding a permanent driving license or not. The Tribunal therefore, committed no error in not considering the issue which is urged for the first time before me. Even otherwise, the impugned decision is in accordance with the decision of the Supreme Court in National Insurance Co. Ltd., vs. Swaran Singh, 2004 ACJ 1. No other point was urged. The first appeal is rejected summarily. 4 The appellant is permitted to withdraw the amount of Rs. 12,500/- deposited in the court on production of the receipt of having deposited the amount of compensation awarded by the Tribunal in the tribunal. 5 In view of the dismissal of the appeal, the civil application no. 3748/2010 does not survive and the same is disposed of. [D.G. KARNIK, J.]