JUDGMENT :

1. Heard learned Counsel for the parties. Learned Counsel for the parties agree that both these appeals can be taken up and disposed of by a common judgment and order since they challenge the judgment and award dated 21.02.2017 made in Claim Petition No.92 of 2013.

2. First Appeal No.100 of 2017 has been instituted by the claimants seeking enhancement of compensation and First Appeal No.129 of 2017 has been instituted by the Insurance Company, inter alia, on the ground that there was no rashness and negligence of the driver proved in this matter; there was a breach of the terms of the insurance policy and, in any case, the compensation and interest awarded are quite excessive.

3. In this case, there is no dispute that Jose, who died in a motor accident on 08.06.2013, was a fisherman 59 years of age. There is also no dispute about the involvement of the insured vehicle, i.e. Activa scooter bearing no.GA-03-D-2071.

4. Mr. Kakodkar, learned Counsel for the Insurance Company submits that there is no evidence of any rashness and negligence on the part of the driver of the scooter and, therefore, the claim petition ought to have been dismissed. To make good this plea, the necessary minimum was the examination of the driver of the scooter or any other witness to the accident. This has not happened in the present case.

5. The Head Constable Sushant Sawant (AW2) was examined as a witness in this matter, who has produced the complaint dated 08.06.2013 on record (Exhibit 39). He deposed that the investigations carried by him revealed that the accident was on account of the rash and negligent driving by the driver of the offending vehicle. He also produced on record the sketch of the site of the accident attached to the panchanama (Exhibit 40). A perusal of these documents also indicates that the accident was on account of rash and negligent driving by the driver of the offending vehicle.

6. In this case, the son of the deceased, who was an eyewitness to the accident, has also deposed (Exhibit 65). He has stated that he was traveling along with his father deceased Jose on a Deo scooter and when they reached Curpin junction, the offending vehicle came from the opposite direction at a fast speed and dashed against the scooter that was being driven by his father on the left side of the road.

7. Mrs. Vasanti Sawant (AW4), another eye witness, has also deposed in this matter (Exhibit 68). She too stated that the accident was on account of rash and negligent driving by the driver of the offending vehicle. She deposed that after the accident the driver ran away from the spot. There is yet another eyewitness, Jose Magalhaes (AW5), who has also deposed to the accident.

8. The testimony of none of the aforesaid witnesses has been dented in cross-examination. There is no reason to disbelieve the consistent testimony of the eyewitness, which finds corroboration in the police documents produced on record. In such matters, the aspect of rashness and negligence has to be proved by applying the test of preponderance of probabilities. In my judgment, there is ample evidence to sustain the findings of rashness and negligence, and the impugned award warrants no interference in so far as this finding is concerned.

9. On the aspect of the driver of the offending vehicle not possessing a proper driving licence and consequently, there being a breach of the terms of the insurance policy, at the outset, it is necessary to state that the burden of proving that breach is on the Insurance Company. This position was made clear by the Hon'ble Supreme Court in Narcinva V. Kamat And Anr. Vs. Alfred Antonio Doe Martins & Ors., (1985) 2 SCC 574. In this case, the Hon'ble Supreme Court held that the burden of proving that the driver of the offending vehicle had no valid licence is on the Insurance Company. Mere failure on the part of the driver or the owner to produce such a driving licence in the Court cannot absolve the Insurance Company.

10. In this case, the Insurance