JUDGMENT (S.B. Sinha, J.)

1. Leave granted.

2. Appellant is aggrieved by and dissatisfied with the judgment and order dated 28.11.2005 passed by the High Court of Madhya Pradesh at Gwalior in Misc. Appeal No.5/2000 whereby and whereunder the appeals preferred by the respondent herein against an award dated 6.10.1999 passed by the Additional Motor Accident Claims Tribunal, Vidisha, in Claim Case Nos.57 of 1998 and 52 of 1998 were allowed opining that the respondent-insurance company was not liable to indemnify the insured.

3. Bereft of all unnecessary details, the fact of the matter is that on 27.1.1996 the deceased Rajendra Singh and Balaram along with others were travelling by a truck bearing registration No.MP-06/E/0129 with their buffalos on 27.1.1996 from Agra to Vidisha. It met with an accident having been hit by a tractor trolly bearing registration No. MP -6/J/7506. Rajendra Singh died on the spot whereas Balaram was seriously injured in the said accident. He was admitted in a hospital at Gwalior where he succumbed to his injuries.

4. A First Information Report was also lodged with regard to the said incident.

5. Having been served with a notice in the proceedings claiming compensation by the dependents of the said deceased in terms of Section 166 of the Motor Vehicles Act, 1988, the respondent, in his written statement, inter alia, raised a contention that the driver of the tractor, the respondent No.6, did not have any valid and effective driving licence to drive the said vehicle on the said date of accident.

6. The learned Tribunal, having regard to the pleadings of the parties, inter alia, framed the following issue :

Issues Findings

1 to 5 .... ...

6. Whether the terms of the No

insurance policy has been

violated in this case?

7. By reason of an award dated 6.10.1999, the learned Tribunal held that the driver Ram Prakash was having valid licence only for the period 11.2.1990 and 10.2.1993 and again from 7.2.1996 to 7.2.1999. Indisputably, therefore, the driver Ram Prakash did not hold any licence during the period 11.2.1993 to 6.2.1996. The learned Tribunal held :

"Therefore, in United India Insurance Co. v. Sherali [1999 (1) MPW N. 90], it was laid down that if the driver was having driving license but the same was not got renewed at the time of the accident, then insurance company can not be exonerated from its liability. In this case as well, non-applicant No.1 was having license and for this reason driving of the tractor in violation of the terms of the insurance policy is not proved and non-applicant no.2 cannot escape from its liability. Therefore, issue No.6 is being decided negatively."

8. In the appeals preferred by the respondents herein in terms of Section 173 of the Motor Vehicles Act, the High Court, on the other hand, held :

"Learned Counsel for the appellant drew my attention to the decision of the Apex Court in the case of New India Assurance Co. Ltd. vs. Mandar Madhav Tambe and others reported in 1996 ACJ 253. In which it has been held that the insurance company would be liable only if the vehicle was being driven by a person holding a valid driving licence or a permanent driving licence other than learners licence and if the driver was holding no licence on the date of accident than the insurance company is not liable to indemnify the insured. In the case of Manoj Vs. Samundar Singh and others reported in 2005 ACJ 520, the Division Bench of this Court has held that if the driver of the offending vehicle has no licence on the date of accident then the insurance company is not liable to indemnify the insured as the vehicle was being drivern in contravention of the terms and conditions of the insurance policy. In the case of National Insurance Co. Ltd. Vs. Swaran Singh and others, reported in AIR 2004 SC 1531, the Apex Court has held that the owner of the motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not sat