JUDGMENT :

V.P. Patel, J.

1. The appellant-original opponent No. 6-Shriram General Insurance Co. Ltd. has preferred the First Appeal No. 566 of 2018 and the appellant - Opponent No. 3-Reliance General Insurance Company Ltd. has preferred the First Appeal No. 644 of 2018 under Section 173 of the Motor Vehicle Act, 1988 (for short "the M.V. Act"), being aggrieved and dissatisfied by the judgment and award dated 17.11.2017 passed by Learned M.A.C. Tribunal (Aux.) & 4th (Ad-hoc) Addl. District Judge, Gir-Somnath at Veraval in M.A.C.P. No. 92 of 2012.

2. Heard Mr. Rathin P. Raval, learned advocate for the Shriram General Insurance Co. Ltd.; Mr. Y.J. Patel, learned advocate for the original claimants; Mr. Vibhuti Nanavati, learned advocate for the Reliance General Insurance Company. Though served, driver and owner of truck have not entered appearance. Driver and owner of Jeep are unserved as refused the process.

3. The facts are drawn from First Appeal No. 566 of 2018 which is as under:-

3.1 It is case of the appellant that on 28.5.2012, deceased Bhagwanbhai along with other persons was going towards Naliya by travelling in vehicle Jeep (Tufun) No. GJ-12T-1862. When they reached near the accidental place at that time, the Opponent No. 1 came from opposite direction by way of driving vehicle Truck bearing No. GJ-12-Z-2338. His manner of driving was rash and negligent and ultimately both the vehicle collided with each other and thereby the alleged accident has been occurred in which deceased Bhagwanbhai has been died.

3.2 The applicant No. 1-Gangaben Parbatbhai Barad mother of Bhagwanbhai etc. have claimed compensation for Rs. 1,00,00,000/- for the death of Bhagwanbhai P. Barad who was son of No. 1, husband of No. 2 and father of Nos. 3 and 4.

3.3 The learned Tribunal had partly allowed the claim petition and also held that the Opponent Nos. 1 to 3 are jointly and severally liable to pay Rs. 62,44,080/- (60% amount of Rs. 1,04,06,800/-) and opponents Nos. 4, 5 and 6 are jointly and severally liable to pay Rs. 41,62,720/- (40% amount of Rs. 1,04,06,800/-) to the present claimants.

3.4 The appellant has prayed for the following main relief:-

"C. Be further pleased to consider that the judgment/award of the Ld. Motor Accident Claims Tribunal (Aux.), Gir-Somnath at Veraval in MACP No. 92 of 2012 dated 17.11.2017 is illegal, wrong and be further be pleased to quash and set aside the impugned judgment/award and/or modify the same considering merits of the case."

Submission of the parties:-

4. Mr. Rathin Raval, learned advocate for the appellant submits that the inferences drawn and conclusions arrived at by the learned Tribunal are erroneous and against the provision of law. He further submits that the ld. Tribunal has not properly appreciated the legal defences as raised by the appellant in its written statement.

4.1. He also submitted that the ld. Tribunal has not considered the fact that driver did not have any license to drive the vehicle on the date of accident and therefore, as per various decisions of the Apex Court, the Insurance Company had no liability to pay any compensation.

4.2. He further submits that in order to prove its defence, the appellant had sent legal notice through RPAD to owner/driver and the charge-sheet has been exhibited at Exh. 64. He further submits that the charge-sheet itself shows that the driver of insured vehicle was not having any driving license to drive the vehicle. Hence the appellant had conclusively proved its defence. He has also relied upon the decision of the Apex Court rendered in case of National Insurance Co. Ltd. v. Vidhyadhar Mahariwala reported in 2008 (2) An.W.R. 604 (SC) : AIR 2009 SC 208 wherein, it is held that Section 173 of the M.V. Act - driver did not have valid licence on the date of occurrence. It is also held that the insurer will have no liability in that case the claimant can recover the amount from respondent No. 2 and appeal was allowed.

4.3. He also submits that the owner of the vehicle wa