( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 413 OF 2009 WITH CIVIL APPLICATION NO. 2307 OF 2009 Bajaj Allianz General Insurance Co. Ltd. .. Appellant Versus Ramchandra s/o. Kesu Wagh and another .. Respondents Shri S.G. Chapalgaonkar, Advocate for the appellant. Shri P.F. Patni, Advocate for respondent No.1. CORAM : P.R. BORKAR,J. DATED : 23.06.2010 P.C. :- 1. This is an appeal filed by the Insurance Company being aggrieved by the judgment and award passed by the District Judge-2 and Member, Motor Accident Claims Tribunal, Aurangabad, in M.A.C.P. No. 1 of 2006 decided on 14.11.2008, ( 2 ) whereby the present appellant and respondent No.2 Bajirao were jointly and severally directed to pay compensation of Rs. 1,47,110/- for death of Sugandhabai, who is wife of present respondent No.1. 2. With consent of the parties and as per order passed by this Court on 04.03.2010 while deciding Civil Application No. 3492 of 2009, this appeal is being heard finally at the stage of admission. 3. Briefly stated facts giving rise to this appeal may be stated as below :- . On 11.11.2005 at about 5.50 p.m. deceased Sugandhabai was travelling as a pillion rider on motor-cycle No. MH-20 AP 3354 from Jagdamba Temple, Bharadi to Amthana with her son. Her son P.W.1-Subhash was driving the motor- cycle. When they were near village Kasod, another motor- cycle bearing No. MH-20 AP 3807, owned and driven by respondent No.2 Bajirao came from opposite direction. It is stated that due to rash and negligent driving on the part of respondent No.2 Bajirao, there was collusion and Sugandhabai ( 3 ) fell down, sustained injuries and died. It is stated that deceased was doing business of vegetables and was earning Rs. 100/- per day. Compensation of Rs. 5 lakhs was claimed. 4. Written statement is filed by both the appellant and respondent No.2. Both denied rash and negligent driving on the part of respondent No.2-Bajirao. It is also alleged by the present appellant that respondent No.2 – Bajirao was not holding valid driving licence and there was breach of policy and therefore the insurance company is not liable to pay compensation. 5. Heard Adv. Shri S.G. Chapalgaonkar for the appellant and Adv. Shri P.F. Patni for respondent No.1- claimant. The learned advocate for the appellant argued two points before this Court. Firstly that there was beach of policy in as much as respondent No.2-Bajirao was not holding valid driving licence and secondly there was composite negligence and as such compensation awarded should have been reduced to the extent of negligence on the part of P.W.1- Subhash. On the other hand Adv. Shri P.F. Patni argued that the appellant has failed to prove that respondent No.2 had no ( 4 ) valid licence. He also argued that no case of composite negligence is pleaded and no case is made out of negligence on the part of P.W.1 Subhash in driving motor-cycle on which deceased Suganghabai was travelling. 6. So far as the driving of the motor cycle by respondent No. 2 Bajirao without licence is concerned, said matter is discussed by the Tribunal in para 19 to 21 of its judgment. In my opinion, the Trial Court has rightly observed that D.W.1-Aboli Gogte did prove insurance policy, certified copy of which is at Exh.46. However, her knowledge that respondent No.2 Bajirao was not holding valid licence is concerned, it was her hear-say knowledge. She said in her evidence that during investigation that was carried out by Adv. Shri Jobanputra, it was revealed that respondent No.2 had no valid licence. The Tribunal observed that neither Shri Jobanputra is examined nor the Investigating Officer is examined. Therefore, evidence on record of D.W.1 Aboli Gogte is not admissible evidence. 7. As per order passed in Civil Application No. 3492 of 2009 on 04.03.2010, production of certified copy charge- ( 5 ) sheet filed against respondent No.2 is produced on record. It is mentioned therein that respondent No.2 was driving the motor-cycle without licence. It may be noted that charge- sheet is nothing but statement of charge against accused person and not proof of charge levelled. At the most, we can say that it was conclusion drawn by the Investigating Officer that respondent No.2 was not holding valid licence. There ought to have been examination of the Investigating Officer in the Tribunal to show that during investigation he carried out certain investigation and then he came to the conclusion that respondent No.2 was not holding driving licence. 8. In the facts and circumstances of the case and in absence of examination of concerned R.T.O. to show that respondent No.2-Bajirao was not holding driving licence, in my opinion, this is not a case where it can be said that there is sufficient evidence to exonerate the appellant – Insurance Company from paying compensation. It has failed to prove breach of policy by proving that respondent No.2- Bajirao was not holding valid driving licence. 9. The learned advocate for the appellant also argued ( 6 ) that it is case of collusion of two vehicles and both the drivers must be held liable. But the Tribunal in para 13 of the judgment mentioned that P.W.1-Subhash is examined and he has stated regarding how the accident had taken place due to sole negligence of respondent No.2 Bajirao and his evidence is not shaken in the cross-examination. He also observed that his evidence is corroborated by F.I.R. and spot panchanama. We have already referred to the charge-sheet which is only against respondent No.2-Bajirao. Copy of F.I.R. at Exh. 33 and it shows that it was a complaint lodged by P.W.1-Subhash and he stated that it was negligence of respondent No.2-Bajirao. At Exh.34 there is spot panchanama and it clearly shows that the accident had occurred on extreme left side of person coming on road from Bharadi to Amthana. So respondent No.2 had come on extreme wrong side. 10. In the facts and circumstances, in my opinion, the appeal had no merit. In the result, the appeal is dismissed. The amount deposited in this Court be transmitted to the Tribunal for disbursement according to law. 11. In view of dismissal of the First Appeal, Civil ( 7 ) Application No. 2307 of 2009 does not survive. The Civil Application stands disposed of. [P.R. BORKAR,J.] snk/2010/JUN10/fa413.09