1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1421 OF 2009 The New India Assurance Company Ltd. a Subsidiary of the General Insurance Corporation of India and a company Incorporated under the Companies Act having one of its Divisional Office at Adalat Road, Aurangabad Through its Senior Divisional Manager Shri Vishwas S/o Bansi Gayakwad, Age : 52 Years, Occu. : Service at The New India Assurance Co. D. O. No. 1 Adalat Road, Aurangabad. .. Applicant (Orig. Resp. No. 3) Versus 1. Mainabai wd/o Dattu Kakar, Age : 38 Years, Occu. : Service, R/o Plot No. 46, Mohinirajpuram Baribaug, Harsul, Aurangabad. 2. Sachin S/o dattu Kakar, Age : 17 Years, U/g Respondent No. 1. 3. Sagar S/o dattu Katkar, Age : 14 Years, U/g Resp. No. 1. 4. Punjabai Wd/o Bhavrao Katkar, Age : 65 Years, Occu. : Household, R/o as above. 2 5. Shaikh Matin Shaikh Mogal, Age : 18 Years, Occu. : Driver, R/o Babar Colony, Aurangabad. 6. Raiskhan Rashid Khan, Age : Major, Occu. : Business, R/o Kathar Galli, Phulambri, District Aurangabad. .. .. Respondents (Resp. Nos. 1 to 4 : Orig. Claimants, Resp. No. 5 & 6, Orig. Resp. Nos. 1 & 2.) Shri Ajit B. Kadethankar, Advocate for Appellant. Shri A. N. Nagargoje, Advocate for Respondent Nos. 1 to 3. CORAM : K. K. TATED, J. DATE : 24TH NOVEMBER, 2010. ORAL JUDGMENT : . In this appeal by order dated 16th June, 2009 notice was issued to the respondents with a direction that appeal will be finally heard and disposed of at the stage of admission itself. Record shows that all the respondents are duly served. 2. The present appeal is filed by the original respondent No. 3/Insurance Company against the order below Exhibit 05 in 3 M.A.C.P. No. 124/2008 dated 17.01.2009 by which the Tribunal directed appellant as well as original respondent No. 2/owner to pay jointly and severally a sum of Rs. 50,000/- U/Sec. 140 of the Motor Vehicles Act towards no fault liability. 3. The respondent Nos. 1 to 4 the original claimants filed application U/Sec. 140 of Motor Vehicles Act for compensation on account of no fault liability in main petition No. 124/2008. The appellant filed its written statement and raised objection that at the relevant time the driver was not holding driving license to drive a vehicle. Para 11 of the written statement of the appellant reads as under : "11. Without prejudice to the rights of this respondents and contentions raised in above mentioned Paras it is submitted that, even otherwise present claim petition deserves to be dismissed against this respondent. it is to be noted that driver of Jeep No. MH 20 AA 3458 namely Sk. Matin was admittedly not having any driving license to drive the said vehicle. It is to be noted that even he is prosecuted for the charges under the Motor Vehicle Act for non possession of motor driving license at the time of accident. It is further submitted that this respondent is not liable to pay any compensation to the claimant because the jeep 4 was given in custody of such person who was not having valid and effective driving license to drive the said vehicle. This is in breach or mandatory policy condition and this respondent is not liable to indemnify the owner of the truck." 4. Learned counsel appearing on behalf of appellant also relied on FIR filed by the original claimants at the time of making application U/Sec. 140 of the said Act. In FIR also it is specifically stated that, at the relevant time the driver was not holding a license. 5. The learned counsel appearing on behalf of appellant states that as the driver was not holding driving license at the time of accident, appellant is not liable to pay the amount awarded by the Tribunal U/Sec. 140 of the said Act. 6. Learned counsel Mr. Nagargoje appearing on behalf of respondent Nos. 1 to 4/original claimants submits that, in view of Sec. 140 of the said Act, appellant is liable to pay the said amount to the claimants. Whether the driver was holding valid license or not can be decided after leading evidence in the main matter. He further submits that Insurance Company has not produced any cogent evidence on record to show that the driver 5 was not holding valid license on the date of accident. Therefore, there is no substance in the present appeal and same be dismissed summarily. 7. I have gone through the written statement filed by the Insurance Company as well as the FIR which is at Exhibit E. On the face of FIR it is clear that on the date of accident the driver was not holding valid license. The respondent Nos. 1 to 4/original claimants had not produced any other document or evidence to show that the driver was having valid license. Not only that, these facts are not considered by the Tribunal at the time of passing the impugned order dated 17th January, 2009. The Apex Court in the matter of National Insurance Co. Ltd. v. Jethu Ram and others reported in (1999) 9 Supreme Court Cases 62 categorically held that if there is breach of terms and conditions of Insurance Policy, then the Insurance Company is not liable to pay any compensation U/Sec. 140 of the Motor Vehicles Act. 8. Considering the fact that the driver was not holding valid license on the date of accident and as the respondent Nos. 1 to 4 had not produced any contrary evidence on record, the appeal is 6 allowed. 9. The order passed by the Motor Accident Claims Tribunal, Aurangabad dated 17th January, 2009 below Exhibit 05 in M.A.C.P. No. 124/2009 is set aside to the extent of appellant/Insurance Company only. 10. The respondent No. 1 to 4/original claimants can proceed to recover this amount from respondent Nos. 5 and 6 according to law. The appeal is disposed of. It is made clear that these observations are prima facie for deciding present first appeal only. 11. The appellant as per order passed by this Court in Civil Application No. 5667/2009 deposited a sum of Rs. 12,500/- by cheque dated 19th May, 2009 and subsequently a sum of Rs. 37,500/- by cheque dated 23rd June, 2010. The appellant is entitled to withdraw the said amount with interest if any. [K. K. TATED, J.] bsb/Nov. 10