1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 265 OF 1994 New India Assurance Company Ltd. (A subsidiary of General Insurance Corporation of India) having its Regd. & Head office at New India Building, 87, M.G. Road Bombay, Branch office at Khandesh Mills Shopping Complex Building No. 6, Jalgaon 425001 through its duly constituted Attorney Shri. Sayed Khaleel s/o. Sayed Chand. ....Appellant. Versus 1. Smt. Savitribai Hundamal Kukerja Since deceased vide Exh. 33 through her heirs petitioners No. 2 to 8. 2. Santosh Hundamal Kukreja, Age 36 yrs., Occu. Trade, 3. Prakash Hundamal Kukreja, Age 33 yrs., Occu. Trade, 4. Manohar Hundamal Kukreja, Age 31 yrs., Occu. Trade, 5. Sau. Pushpabai Gurudatta Keswani, Age 29 yrs., Occu. Household, R/o. 105, Gandhi nagar, Khadan Camp., Akola, Dist. Akola. 6. Sau. Ashabai Rajeshkumar, Age 27 yrs., Occu. Household, R/o. Hundrajmal, Ramsakhyamal, Krishnanagar, 1st Lane, Amravati, Dist. Amravati. 2 7. Sau. Saralabai Khemachand, Age 19 yrs., Occu. Household, R/o. c/o. Hundrajmal, Sanmukhdas, R/o. Sindhi Colony, Nadura, Dist. Buldhana. 8. Kum. Kavita Hundamal Kukreja, Age 12 yrs., Occu. Education, Nos. 2 to 4 & 8, R/o. Sindhi Colony, House No. 508, Bhusawal, Dist. Jalgaon. 9. Suryakant Dagadu Mali, Age 30 yrs., Occu. Service, Police Constable, B.No. 802, R/o. Bhusaval, Bazar Police Station, Bhusawal. 10. Raghunath Shankar Mali, Age 45 yrs., Occu. Trade, R/o. 77, Navi Peth, Jalgaon. ....Respondents. Shri. V.N. Upadhye, Advocate for the appellant. CORAM : R.K. DESHPANDE, J. DATE : 27Tth JULY, 2009 ORAL JUDGMENT : 1. This is an appeal filed by the Insurance Company, challenging the judgment and award dated 3.2.1994 passed by the Motor Accident Claims Tribunal, Jalgaon in Motor Accident Claim Petition No. 37/2008, directing the appellant and respondent Nos. 9 and 10 herein to pay jointly and severally the amount of Rs.42,000/- with interest at the rate of 12% p.a. from the date of filing of the petition till its realization. 3 2. The accident in question occurred on 29.9.1997 at 11.00 a.m. and one Hundamal Jaiswal Kukreja died in the accident. On 15.2.1988 the respondent Nos. 1 to 8, who are original claimants, (widow, sons and daughters of deceased) filed the claim petition against the appellant and the respondent Nos. 9 and 10 for compensation of an amount of Rs. 1,50,000/-. It was alleged that the accident occurred on 29.9.1987 at 11.00 p.m. on a public road at Bhusawal due to rash and negligent driving of motor cycle No. MFR/9811 by respondent No. 9. The motor cycle belonged to respondent No. 10. It was insured with appellant Insurance Company. 3. The claimant No. 2 Santosh s/o. deceased entered the witness box and examined himself. The tribunal has recorded a finding that Hundamal died due to rash and negligent driving of motor cycle No. MFR/9811 by the opponent No. 1, who is respondent No. 9 herein. It has also recorded a finding that the claimants are entitled to compensation of Rs. 57,000/- and therefore, directed the appellant and respondent Nos. 9 and 10 to pay the compensation to the claimants who are respondent Nos. 1 to 8 herein. This appeal has been preferred by the Insurance Company, the original opponent No. 3. 4. The Insurance Company has deposited in this Court an amount of Rs. 28,500/- which is 50% of the amount of compensation awarded by 4 the tribunal. 5. There is no challenge to the finding recorded by the Tribunal that the accident occurred due to rash and negligent driving of the respondent No. 9. The quantum of compensation awarded has also not been disputed by the appellant. What has been disputed by the appellant Insurance Company is the very entitlement of the claimants to get the compensation. The learned counsel for the appellant has urged that undisputedly the respondent No. 9 who was driving motor cycle No. MFR/9811 possessed only learner's license which is at Exh. 44 and not a driving license. The learned counsel relied upon the condition specified in the Insurance Policy, produced at Exh. 45, which runs in terms as under. "Provided that a person driving holds a valid driving license at the time of accident or had held permanent driving license (other than the learner's license) and is not disqualified from holding or obtaining such license. " 4. Inviting my attention to the provisions of section 3 of the Motor Vehicle Act 1988 read with section 2(10) and 2(19), it is urged that the liability of the Insurance Company arises for payment of compensation only in the event the driver of the vehicle possesses the driving license 5 and not a learner's license. The learned counsel relied upon the judgment of Apex Court reported in (1996) 2 SCC 328 New India Insurance Company V. Mandar. 5. Though the respondents are served in the matter, non appears for the respondents/claimants. (dictation deferred) Operative part The appeal filed by the Insurance Company, therefore, succeeds. The judgment and award dated 3.2.1994 passed in Motor Accident Claim Petition No. 37/2008 by Motor Accident Claims Tribunal, Jalgaon is quashed and set aside to the extent it holds the appellant is liable for payment of compensation. The appellant shall be free to recover the amount paid by them to the claimant i.e. original opponent No. 1. [ R.K. DESHPANDE, J. ] Dated : 27th July, 2009 ssc/fa265.94 In view of order dated 3rd of August 2009 in First Appeal No. 265 of 1994, the above judgment is recalled and the matter is placed for hearing afresh on 10-8-2009. [ R.K. DESHPANDE, J. ] Dated : 3rd August 2009. ssc/fa265.94 6