1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 516 OF 1994 United India Insurance Co. Ltd. Jalgaon Branch, Jalgaon ....Appellant. Versus 1. Satish Ramkrishna Wani, Age 15 years, Occu. Student, Minor guardian father Ramkrishna Narayan Wani, Age 45 yrs., Occu. R/o. Type-II, 158, Near Hospital Ordnance Factory, Varangaon. 2. Damu Nathu Patil, Age 40 yrs., R/o. Sakegaon, Tq. Bhusawal, Dist. Jalgaon. 3. Ramdas Shamrao Koli, Truck Driver (Deleted since dead) [Names of Resp.Nos. 2 and 3 are deleted as per Registrar's order dated 31.3.1998 passed in C.A. No. 5755/97) 4. Liyakatali Yusufali, Age 45 yrs., R/o. Nashirabad, Tq. & Dist. Jalgaon. 5. New India Assurance Company Ltd., Jalgaon Branch, Jalgaon. ....Respondents. Shri. D.V. Soman, Advocate for the petitioner. Shri. L.V. Sangit Advocate h/f. Shri. V.J. Dixit, Advocate for respondent 2 No. 4. Shri. A.S. Usmanpurkar h/f. K.V. Kulkarni, Advocate for respondent No. 5. (Names of respondent Nos. 2 and 3 are deleted) CORAM : R.K. DESHPANDE, J. DATE : 6th August, 2009 ORAL JUDGMENT : 1. This appeal is preferred by the United India Insurance Company Limited, challenging the judgment and award dated 28th of September 1993, by which the claim petition filed by the respondent No. 1 has been partly allowed, directing the appellant Insurance Company along with the truck driver, auto-rickshaw owner and the New India Insurance Company Limited, jointly and severally liable to pay compensation of Rs.50,000/- to the applicant with interest at the rate of 12% p.a. 2. The respondent No.1 herein is the original claimant. The respondent No. 2 is the owner of the truck bearing registration No. MHB/5833. The respondent No. 3 is the truck driver. The respondent No. 4 is the owner of the auto-rickshaw bearing registration No. MWD/9509 and the respondent No. 5 is the New India Assurance Company Limited with whom the aforesaid truck was insured. The auto-rickshaw, in question, was insured with the appellant Insurance Company. Both these vehicles were involved in an accident, occurred on 27.2.1997 on National Highway No. 6 while coming from Jalgaon and proceeding to 3 Paranda. The respondent No. 1/claimant was sitting in the truck No. MHB/5833. In the said accident, he suffered injuries and therefore, filed the Motor Accident Claims Petition No. 137/87 for total compensation of Rs.1,00,000/-. 3. By the impugned judgment, the learned Member of the Motor Accident Claims Tribunal has held that there was contributory negligence on the part of the truck driver as well as the auto-rickshaw, as a result of which the accident occurred. It was the specific plea raised by the appellant Insurance Company before the Tribunal that the auto- rickshaw owner was not holding a valid license as on the date of the occurrence of the accident. Although the auto-rickshaw was insured with the appellant Insurance Company, there was a breach of conditions of policy and therefore, the appellant Insurance Company is not liable to pay the compensation. Although, this plea taken by the appellant is referred to in para 8 of the judgment by the Tribunal, there is no finding recorded on that question and liability has been fastened upon the appellant. 4. I have heard the learned counsel for the appellant and the learned counsel appearing for the other respondents. The respondent No. 2, who is the owner of the truck, has been deleted from the array of the respondents in this appeal by an order dated 31.3.1998 passed in Civil Application No. 5755/1997 filed by the appellant. The learned counsel 4 for the appellant contended that the liability of the Insurance Company would arise only because the vehicle i.e. auto-rickshaw was insured with the appellant Insurance Company. However, he contended that there was a breach of condition of policy as the auto-rickshaw driver was not holding the license and at any rate, the same was not produced on record. The learned counsel further argued that the auto-rickshaw driver was not negligent in causing injuries to the respondent No. 1/claimant and in support of this plea, he relied upon the evidence of the claimant, of himself, indicating that he suffered an injury not because of the dash with the auto-rickshaw, but because of the dash by the truck on the M.I.D.C. pipeline. 5. The learned counsel appearing for respondent No. 4, the owner of the auto-rickshaw, contended that the plea of contributory negligence cannot be considered in view of the fact that the name of the truck owner has been deleted from the array of the respondents. He further contended that the auto-rickshaw driver was possessing a valid license. However, he has admitted that such license was not produced on record. 6. In view of the rival submissions made by the parties, it is apparent that the question of contributory negligence cannot be considered as the owner of the truck has been deleted from the array of the respondents. In view of this, the plea regarding no negligence on the part of the auto-rickshaw driver, raised by the appellant Insurance Company, on the 5 basis of the evidence of the claimant, does not survive. 7. The only question remains to be considered is regarding the liability of the appellant Insurance Company in terms of the policy. Admittedly, the license of the auto-rickshaw driver has not been produced on record. The auto-rickshaw owner has also not entered in the witness box and led any evidence in support of his plea that the auto-rickshaw driver was possessing the valid license. Merely, pleading in the written statement that the auto-rickshaw driver was holding a valid license, cannot be taken as a proof of the fact. The respondent No. 4 has, therefore, failed to substantiate his plea regarding the auto-rickshaw driver being holding a valid driving license. Undisputedly, the auto-rickshaw driver has died in the said accident. The learned counsel for the appellant relied upon the decision of this Court reported in 2008 ACJ 1940, United India Insurance Company Vs. Kamal Maruti Darekar and others in support of his plea. It has been held that where the driver of the vehicle, admittedly did not hold any license and the same was consciously driven by the owner of the vehicle or by such person, the insurer is entitled to succeed in the defense and avoiding the liability. This judgment fully supports the contention raised by the appellant in regard to the liability of the Insurance Company. The instant appeal, therefore, succeeds to that extent. 8. In the result, the judgment and award dated 28th of September 6 1993 passed by the learned Member of the Motor Accident Claims Tribunal, Jalgaon in MACP No. 137/1987 to the extent it hold that the appellant is liable jointly and severally to pay the sum of Rs.50,000/- to the respondent No. 1/claimant with the interest at the rate of 12% p.a. from the date of the application, is hereby quashed and set aside. The appeal is, thus, allowed. However, there shall be no order as to costs. 9. The learned counsel for the appellant pointed out that the appellant has deposited an amount of Rs.25,000/- in this Court which was initially kept in the fixed deposit, however, by an order dated 28.11.1997 passed by this Court, the respondent No. 1 was permitted to withdraw an amount of Rs.25,000/- with interest by furnishing security to the satisfaction of the Additional Registrar. It is further informed that the respondent No. 1 has been permitted to withdraw the said amount after furnishing the security. In view of the fact that the instant appeal is allowed, the appellant is permitted to recover the said amount from the respondent No. 1 or from the surety. [ R.K. DESHPANDE, J. ] ssc/fa516.94