1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH FIRST APPEAL NO. 1162 OF 2007 New India Assurance Company Ltd. Branch at Chandranagar, Latur. - - Appellant [ Orig. respondent No.3 ] versus 1. Smt. Sunita w/o. Jaisingrao Shinde, age 25 years, occu. household work, 2. Pranita d/o. Jaisingrao Shinde, age 7 years, occ. student, 3. Rajuta d/o. Jaisingrao Shinde, age 2 years, minor, student, Appellants Nos.2 and 3 are minors u/g. of appellant no.1 natural mother. All are residents of Sawargaon, taluka and district Latur. 4. Manikrao Baburao Dikhle, age 40 years, occ. agriculture, R/o. Tandulwadi, taluka Kallam, district Osmanabad. 5. Baban Laxmanrao Limbkar, age 35 years, occ. driver, R/o. Tandulwadi, taluka Kallam, district Osmanabad. - - - Respondents Shri V. N. Upadhye, Advocate for appellant. Mrs. Meera T. Biradar, Advocate holding for Shri U. R. Kulkarni, Advocate for respondents Nos.1 to 3. 2 Shri V. H. Salunke, Advocate holding for Shri D. H. Jadhavar, Advocate for respondents Nos.4 and 5. CORAM: N. D. DESHPANDE, J. Dated : 14th December 2009 PER COURT: 1. This is first appeal filed by the Insurance Company against the impugned judgment and award dated 24-3-1998 passed by District Judge & Ex Officio Member of the Motor Accident Claims Tribunal, Latur. 2. Heard Shri Upadhye, learned Counsel for the Insurance Company during the course of arguments did not dispute about the quantum because the learned Tribunal accepted and upheld the case of contributory negligence of 60:40. However, the appeal was mainly on the point of breach of terms of policy which was ground raised by the Insurance Company before the learned Tribunal. It is stated that the driver of the tractor/ trolley was not possessing valid driving license at the material time. As such, there is breach of policy and the insurer would not be protected. According to him, the entire liability is of respondents Nos.4 and 5 i.e. owner and driver of the vehicle. 3 3. I have heard Shri Salunke holding for Shri Jadhavar and Mrs. Biradar holding for Shri Kulkarni for the respondents. I have gone through record and proceedings and found that there is no evidence to show that at the relevant time the driver was not holding a valid license. This position is conceded by Shri Upadhye, learned Counsel for the Assurance Company. Moreover, it is the case of the Assurance Company that the accident took place only because of rash and negligent driving of the victim who was driving motor cycle and he himself dashed against the trolley and the tractor which was stationery on the road. Therefore, there is no question whether the driver driving the vehicle was holding valid license or not. Thus, there is no substance in the appeal and it stands dismissed with costs. ( N. D. DESHPANDE, J. ) pnk/fa116207