1. The appellant Insurance Company (Original Respondent no.2) has preferred the present appeal challenging the judgment and award, rendered by the learned Chairman, Motor Accident Claims Tribunal, Dhule, in Motor Accident Claim Petition No. 1489 of 2005 on 1.4.2010.

2. Notice for final disposal of the present appeal was issued by this court on 21.10.2010 and Shri R.C.Patil, learned counsel waived the service thereof for respondent no.1, as well as Shri Mukul Kulkarni, learned counsel waived the service thereof for respondent no.2. Thereafter, the matter was adjourned from time to time at the request of learned counsel for the parties and thereafter heard learned counsel for the respective parties finally on 27.1.2011. The parties are hereinafter referred as per their original status.

3. The petitioner i.e. respondent no.1 herein viz. Smt. Ratna Popat Patil, who is the legal heir of deceased Popat Shivram Patil, contends that deceased Popat Shivram Patil was her husband. His age was 60 years at the time of death and he was retired from the service. He was educated upto M.Sc. (Agri.) and was getting pension of Rs.14,000/- per month. She contended that on 20.8.2005, as usual, her husband had gone out for evening walk on Sakri road. At this juncture, one auto rickshaw bearing registration No. MH-18/B-7964 came from behind and dashed him. He was taken to the Civil Hospital and then to Ashta Hospital, where he expired.

4. It is alleged that the accident took place because of the negligence on the part of the driver of the auto rickshaw. The petitioner contended that she claimed Rs.50,000/-towards medical expenses of her husband. She further contended that she has no son, but has two daughters. Hence, she claimed compensation of Rs.3,00,000/- from respondent no.1 Prakash Shivram Bhavsar i.e. owner of the auto rickshaw and respondent no.2 United Insurance Company i.e. the insurer of the said auto rickshaw.

5. Accordingly, notices were issued to the respondents and respondent no.1 appeared, but did not file written statement, and therefore, claim petition proceeded against him without written statement; whereas respondent no.2 i.e. the appellant herein appeared and filed reply and resisted the claim petition of the petitioner contending that there was no negligence on the part of the driver of the auto rickshaw, but there was negligence on the part of deceased himself, as he was walking between the road without taking any care and he all of a sudden moved on the road and struck against the auto rickshaw. Respondent no.2 i.e. the appellant herein also denied the age and monthly income of the deceased, as well as denied the claim of medical expenses and prayed that the said petition be dismissed.

6. The Tribunal framed the issues at Exh.16. In order to prove the claim of the petitioner, the petitioner examined herself and produced the police papers and other documents on record. It appears from the police papers that there was negligence on the part of the driver, namely Rajesh Shivaji Wagh of the auto rickshaw bearing No. MH-18/B-7964, and accordingly, he was prosecuted and case was registered against him bearing S.T.C.C. No. 4644 of 2005. It was the case of respondent no.2 Insurance Company i.e. appellant herein that there was negligence on the part of the deceased himself, but the Insurance Company did not examine any witness. Accordingly, taking into consideration the evidence of the petitioner and police papers, the Tribunal held that there was sole negligence on the part of the driver, namely Rajesh Shivaji Wagh of the auto rickshaw bearing MH-18/B-7964 and answered the issue in that respect in the affirmative.

7. The Tribunal further discussed the aspect of holding valid licence by the auto rickshaw driver, namely Rajesh Shivaji Wagh at the relevant time i.e. on the date of the accident and held that the said driver was not having valid licence on the date of accident i.e. 20.8.2005. However, relying upon the Ruling o