JUDGMENT :

1. This appeal is filed under Section 173 of the Motor Vehicle Act (hereinafter referred to as “the Act” for short) by the appellant – Insurance Company, wherein the appellant has prayed that the judgment and award dated 2.4.2019 passed by the Motor Accident Claim Tribunal (Auxi.), Gandhinagar in MACP No.38 of 2010, be quashed and set aside.

2. The brief facts leading to filing of this appeal are as under:

2.1 The present opponent nos.1 and 2 filed claim petition being M.A.C.P.No.38 of 2010 under Section 166 of the Act against the present appellant-insurance company and opponent no.3 herein. It is mainly stated that on the date of incident i.e. 12.11.2009, when the deceased Bantisang @ Vedpal was travelling from Harsoli to Dahegam in Autorickshaw bearing no.GJ.18AT.4022, near Uttam dairy, the rickshaw driver was rashly and negligently driving the said autorickshaw and the said autorickshaw dashed with one pickup jeep. In the said accident, Bantisang sustained grievous injuries as a result of which, he died. It is stated that the deceased was earning Rs.4000/- per month and therefore the claimants prayed that Rs.5 lacs be awarded by way of compensation to them.

2.2 On issuance of notice, the appellant-original opponent no.2- insurance company filed written statement at Exh.4 and during the course of proceedings, the parties led the documentary evidence as well as oral evidence before the Claims Tribunal. The Claims Tribunal, by way of impugned judgment and award dated 2.4.2019, allowed the said claim petition and thereby held that both the original opponents are jointly and severally liable to pay the compensation to the claimants. The total amount of Rs.4,83,600/- by way of compensation was awarded with 9% interest p.a. The appellant-insurance company has, therefore, filed the present appeal.

3. Heard learned advocate Mr.Alkesh Shah for the appellant and learned advocate Mr.Paresh Darji for the respondent nos.1 and 2. Though served, none appears for respondent no.3.

4. Learned advocate for the appellant has, though tried to contend the case of the appellant-insurance company on merits, restricted his arguments that the original appellant no.1-present respondent no.3 herein i.e. driver of the vehicle of autorickshaw bearing number GJ.18AT.4022 was not holding a valid and effective driving licence to drive the same and therefore, the Tribunal ought to have exonerated the present appellant-insurance company or in the alternative, it is contended that the Tribunal ought to have directed the appellant to pay the amount of compensation to the claimants and thereafter ought to permit the appellant-insurance company to recover the same from the owner/driver of the offending vehicle. At this stage, learned advocate for the appellant has placed on record the licence issued to the original opponent no.2 and also placed on record the judgment and award dated 3.7.2020 passed by the M.A.C.T.(Aux.), Ahmedabad Rural in MACP No.699 of 2010. It is submitted that in the very same accident, one Kalubhai Meliyabhai Amaliyar also sustained injury and he filed claim petition before the Claims Tribunal at Ahmedabad (Rural) and while passing the judgment and award, the concerned Tribunal, on the basis of the evidence adduced before it, specifically observed that the driver of the offending vehicle was not holding valid and effective driving licence at the time of accident and therefore the insurer of the offending vehicle i.e. the present appellant-insurance company was not held liable and ultimately, the claim petition was dismissed qua the present appellant. Learned advocate has, therefore, urged that the impugned judgment and award passed by the Claims Tribunal be modified and the appellant-insurance company be permitted to recover the amount of compensation from the owner/driver of the offending vehicle.

5. Learned advocate Mr.Darji for the respondent nos.1 and 2, though initially opposed this appeal, ultimately contended that if this Court