agk FA100­99 (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.100 OF 1999 New India Assurance Co Ltd .. Appellant versus Arvind P. Kulkarni & Ors. .. Respondents Mr.S.S.Vidyarathi a/w Mr.Ranjan Tripathi for the appellant. Mr.Amit B. Borkar for respondent No.1. Mr.Jayant Bardeskar for respondent No.2. CORAM : A.S.OKA, J. DATE : 7th September 2010. JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. The appellant is the insurer of the auto rickshaw involved in the accident. The 1st and 2nd respondents are the claimants in a claim petition filed under section 166 of the Motor Vehicles Act, 1988. The claim petition was filed on account of demise of their son in an accident on 13th January 1991. He was travelling by an auto rickshaw. A dash was given by the auto rickshaw to tractor trolley coming from the opposite direction. The finding of the Tribunal is that the accident occurred agk FA100­99 (2) due to rash and negligent driving by the driver of the auto rickshaw. The compensation of Rs.1,00,000/- was granted by the Tribunal along with interest at the rate of 12% per annum. The contention raised in the written statement of the appellant was that at the relevant time the driver of the auto rickshaw was not holding a driving licence and therefore there is a breach or violation of terms and conditions of the policy of the insurance. 2 The learned counsel appearing for the appellant submitted that though a specific contention was raised in the written statement and though a witness was examined by the appellant in support of the case that the driver of the auto rickshaw was not holding a valid licence, the learned Member of the Tribunal has not framed any issue on this aspect and has not recorded any finding. He invited attention of the Court to the evidence of Sadashiv Krishna Patil who deposed that prosecution was lodged against the driver of the auto rickshaw on the ground that he was not holding licence. He submitted that the said evidence proves that the driver was not possessing a valid licence and therefore the appellant-insurer could not be held liable. He has placed reliance on various decisions in support of the contention that in such a case the insurer cannot be ordered to pay compensation. agk FA100­99 (3) 3 The learned counsel appearing for the 2nd respondent submitted that the burden was on the appellant to prove that the driver of the auto rickshaw was not holding a valid licence and the said burden has not been discharged. He relied upon a decision of the Apex Court in the case of Rukmini & Ors Vs. New India Assurance Company and Ors (1999 ACJ 171). He submitted that no evidence has been adduced by the appellant to prove that the driver of the auto rickshaw was not possessing a valid licence. 4 I have considered the submissions. It is true that no issue has been framed on the aspect whether the driver of the auto rickshaw holding a licence. As the evidence on this aspect has been already adduced, the submission of the appellant is being dealt with. The appellant examined one Sadashiv Patil, who was on duty as ASI at Gargoti police station on the date of the accident. He stated that the driver of the auto rickshaw was guilty of negligence. Therefore, he lodged a complaint against him. In paragraph 2 of his deposition he stated that the driver was charge sheeted for not possessing a driving licence. He merely stated that the driver did not show him a driving licence. agk FA100­99 (4) 5 It must be noted here that it is not the case of the said witness that he made investigation and inspected the record of the Regional Transport Officer and found that the driver was not holding the licence or was not issued the licence. All that the witness stated is that the driver did not show him licence. This is not a case where police officer stated that he carried out investigation and found that the driver had never obtained a licence and was not holding a driving licence. As in the case of Rukmini (supra) the appellant did not summon the driver and did not make any effort to produce the record of Regional Transport Officer regarding grant of licence. Therefore, it cannot be said that the appellant discharged the burden of proving that the driver of the auto rickshaw was not holding a driving licence. 6 Thus, the appellant has not discharged the burden. In the case of Rukmini (supra) the facts before the Apex Court were more or less identical where police officer was examined by the insurer and stated that the driver did not produce the licence. In absence of production of record from the Regional Transport Office, the Apex Court held that the evidence of police officer is not sufficient to accept the contention of the insurer. agk FA100­99 (5) 7 Hence, the appellant has failed to prove the contention raised that the driver of the auto rickshaw was not holding a driving licence and therefore, there is a breach of terms and conditions of the policy of insurance. Hence, no fault can be found with the view taken by the Tribunal that the appellant is liable to satisfy the award as there is no dispute about the existence of policy of insurance. There is no merit in the appeal and the same is dismissed of with no orders as to costs. (A.S.OKA, J)