1 fa1763-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1763 OF 2010 WITH CIVIL APPLICATION NO.5426 OF 2008 The Oriental Insurance Co. Ltd. ..Appellant Vs Smt. Bharatibai R. Bhamre and ors. ..Respondents -- Mr.Indrajeet Kulkarni, for appellant/applicant. Mr.M.N.Sandhyanshiv, for respondent nos. 1 to 5. -- CORAM : A.S.OKA, J. DATE : 13 th DECEMBER, 2010 P.C: Heard learned counsel for the appellant and learned counsel for the first to fifth respondent. The challenge in this appeal is to the award made by the learned Member of Motor Accident Claims Tribunal in Claim Petition Under Section 166 of the Motor Vehicles Act, 1988. 2] The appellant is the insurer of the tractor involved in the accident The only contention of the appellant is that at the relevant time the driver of tractor was not possessing a valid driving license and therefore, there is a 2 fa1763-10.sxw breach of terms and conditions of the policy of insurance. Learned counsel for the appellant submitted that the First Information Report produced on record which was admitted in evidence by consent showed that the driver of tractor was prosecuted on allegation that he was not possessing driving license. He submitted that the name of driver was deleted by the original claimant and no evidence was adduced to prove that the driver was possessing a valid driving license. He, therefore, submitted that the appellant had discharged the burden of proving the breach of terms and conditions of the policy. 3] I have given careful consideration to the submissions. The appellant examined one Mr.Shrikant Lakhe, one of its Officers in support of the contention that the driver of tractor was not possessing a valid license. The appellant relied upon the report of the Investigator appointed by it which allegedly showed that the driver was not possessing a driving license. 4] In paragraph No.16 of the judgment, the learned Member of the Tribunal observed that the said witness Mr.Shrikant Lakhe admitted that he was unable to tell name of the person who has singed the investigation report. Thus, notwithstanding the examination of the Officer of the appellant, the report of Investigator could not be proved. 5] The only other document on which reliance was placed was the First Information Report which showed that the driver was prosecuted. The burden was on the appellant insurer to establish the breach. The appellant 3 fa1763-10.sxw relied upon the report of the Investigator to prove that the driver was not possessing a license. The Officer examined by the appellant could not even tell the name of the Investigator and could not identify the signature on the said report. The Investigator was not examined. Therefore, the Tribunal was justified in holding that the only on the basis of FIR, the breach cannot held as proved. The FIR contains mere allegations. 6] Hence, no case for interference is made out. Appeal is, accordingly, dismissed. Appellant will be entitled to refund of Rs.25,000/- with interest of accrued thereon. 7] Civil Application No.5426 of 2008 does not survive. The same is disposed of. [A.S.OKA, J] 4 fa1763-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.5423 OF 2008 The Oriental Insurance Co. Ltd. ..Applicant Vs Smt. Lalita R. Bhamre ..Respondents -- Mr.Indrajeet Kulkarni, for applicant. Mr.M.N.Sandhyanshiv, for respondent no.1. -- CORAM : A.S.OKA, J. DATE : 13 th DECEMBER, 2010 P.C: Heard learned counsel for the parties. Application allowed. Delay condoned. [A.S.OKA,J.] 5 fa1763-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL [STAMP] NO.25702 OF 2008 The Oriental Insurance Co. Ltd. ..Appellant Vs Smt. Lalita R. Bhamre ..Respondents -- Mr.Indrajeet Kulkarni, for appellant. Mr.M.N.Sandhyanshiv, for respondent no.1. -- CORAM : A.S.OKA, J. DATE : 13 th DECEMBER, 2010 P.C: For the reasons recorded in First Appeal No.1763 of 2010, present appeal is dismissed with no order as to the costs. Appellant will be entitled to refund of Rs.25,000/- with interest accrued thereon. [A.S.OKA,J.]