This is an appeal preferred by the insurance company being aggrieved by the judgment and award passed by the Member, Motor Accident Claim Tribunal, Sangamner, Dist. Ahmednagar in MACP no. 69/2004 decided on 17-6-2009 whereby the present appellant and respondent no. 2 are directed to pay compensation of Rs.4, 71,658/- together with interest at the rate of 7.5% from the date of petition till its realisation.

2. Briefly stated, facts giving rise to this appeal may be stated as below:-

On 26-2-2004 at about 8.30 pm, respondent No.1 Karbhari was proceeding from Sangamner Sugar factory towards Sangamner bus stand in auto rickshaw bearing no. MCN 7081 owned by respondent no.2 and insured with respondent no.1 - appellant. When the auto rickshaw was passing near Sahyadri Garage on Pune - Nasik highway, it gave dash to one bullock cart and the petitioner who was sitting in the auto rickshaw on left (cleaner) side sustained serious injuries which ultimately resulted in amputation of his left leg. The rickshaw driver was prosecuted by police. Respondent no. 1 - claimant filed claim petition for getting compensation on Rs.5,00,000/-.

After hearing both the sides, the tribunal awarded compensation as stated above.

3. This appeal is preferred by the insurance company on the ground that there was breach of policy in as much as the rickshaw driver was not holding valid driving licence and as such, the insurance company is not liable to pay compensation. It is also argued that no deduction was considered while calculating compensation for loss of earnings. So far as the first part is concerned, insurance company produced insurance policy at exh.59 and the condition mentioned regarding persons who are entitled to drive is to the effect that "Any person including the insured provided that the person driving holds an effective and valid driving license to drive the category of vehicle insured hereunder, at the time of accident and is not disqualified from holding or obtaining such a license. "

Insurance company examined Sachin Asmar at exh.54 who was working as a Jr. Clerk at Shrirampur Sub-regional Transport Office from July, 2008. He stated that he had brought record regarding driving licence of Sudam Fatangare who was admittedly driving the auto rickshaw in question at the time of accident. It is stated that on 22-1-1996 driving licence was issued to Sudam and its period was upto 21-1-1999. It was driving licence for transport vehicle. However, after 21-1-1999, said licence was not registered and he produced record to that effect at exh.57. He further stated that Sudam Fatangare was given non-transport licence on 13-12-1995 and it was valid upto 12-12-2020. In cross-examination, witness stated that rickshaw driver Sudam Fatangare had licence for driving rickshaw. He denied that on 26-2-2004 driver Sudam had licence to carry passengers in auto rickshaw. The tribunal in paragraph no. 15 of the judgment has observed that the clerk from RTO office has admitted that auto rickshaw driver Sudam had transport licence but it was not renewed and during cross examination he admitted that Sudam had licence to drive auto rickshaw and he was not disqualified. It is also observed that rickshaw driver had considerable experience to drive auto rickshaw as he was holding valid licence till 21-1-1999. He further stated that non-renewal is technical breach and relying on the case of National Insurance Co. Ltd. Vs. Swaran Singh and others reported in AIR 2004 Supreme Court 1531 : [2004(5) ALL MR (S.C.) 251] the tribunal has held that the insurance company is not exonerated. We will find discussion also in paragraph no. 8 onwards of the trial court judgment. It is argued before me that the tribunal has not properly appreciated law on the issue involved. Learned advocates for respondent nos. I and 2 relied upon the case of National Insurance Co. Ltd. Vs. Swaran Singh (cited supra) particularly paragraph nos.84 and 85 and clauses (iii) and (vi) of paragraph no.1