The main legal point established in the judgment is that the Insurance Company cannot be held liable for compensation when the vehicle was driven without a valid license, based on the provisions of the Motor Vehicles Act and relevant case law.

JUDGMENT :

1. By way of present First Appeal under Section 173 of the Motor Vehicles Act, 1988, a challenge is made to an order dated 7.3.2005 passed by Motor Accident Claims Tribunal (Aux.) Fast Tract Court No.3, Bhavnagar in Motor Accident Claim Petition No.524 of 1999, which came to be partly allowed.

2. The background of facts which has given rise to present appeal is that on 31.5.1999, Tinabhai Madhavbhai, son of applicant Nos.1 and 2, was plying Luna scooter bearing registration No.GJ-4 3426 and passing towards Vaghnagar of Mahuva Taluka. He was driving his vehicle cautiously on the correct side of the road, but when he reached at bridge of the river Malan, opponent No.1 who was driving his vehicle, i.e. three-wheeler tempo bearing registration No.GJ-4 U 6811 carelessly, dashed with scooter of Tinabhai, which resulted in an accident and said Tinabhai, i.e. son of the original claimants, died on the spot. Opponent No.2 was owner of the above-mentioned three-wheel tempo which was insured with opponent No.3 Insurance Company and for the said accident, a criminal was also registered against opponent No.1.

3. It is the case of the original applicants-claimants that at the time of occurrence of accident, son Tinabhai was aged about 20 years and was doing earning activity of diamond cutting and polishing work and was earning Rs.4,000/- per month and on account of a sudden death of their son, original claimants lost their only bread-earner and as such by submitting a claim petition under Section 166 of the Motor Vehicles Act, 1988, a compensation was sought to the extent of Rs.3 lacs under multiple heads which was registered as Motor Accident Claim Petition No.524 of 1999.

4. It appears that later on, after summons having been duly served upon the opponents, opponent No.3 Insurance Company did appear and submitted its reply at Exh.18 and though served, opponent Nos.1 and 2 chose not to submit any reply, which led learned Tribunal to proceed ahead with the case. Opponent No.3 Insurance Company in its reply has categorically submitted that there was no rash and negligent driving by tempo vehicle and it was also denied that deceased was earning Rs.4,000/- per month and by indicating that Insurance Company is not responsible for payment of any compensation, said claim was opposed.

5. With a view to establish the claim, original applicant No.1 has been examined at Exh.35, whereas one Mr. Pravinbhai Mangalbhai Makwana was examined at Exh.37 and by producing several documents, vide list Exh.25, claim was tried to be justified by leading such oral as well as documentary evidence. As against this, opponent Insurance Company in addition to its reply has examined one Keshubhai Tejabhai Maru at Exh.44 and also relied upon few documents at Exh.4, i.e. policy of three-wheel tempo and at Exhs.45 and 46 replies/ statements taken by PSI Mahuva of Mr. Ganesh and Nanji Gaful. After considering such material, issues were framed at Exh.23 by learned Tribunal and after considering documentary as well as oral evidence, petition came to be partly allowed by passing an order on 7.3.2005, operative part of the same thus reads as under:-

"This Petition is partly allowed.

(1) The applicants do recover Rs.2,91,128/- (Rupees Two-lakhs, Ninety-one-thousand, One-hundred and Twenty-eight only) from the opponent Nos.1 to 3 jointly and severally together with proportionate cost and interest at the rate of 6% from the date of application till realisation.

(2) Interim compensation, if any paid, shall be adjusted from the aforesaid amount of compensation, awarded in this final adjudication.

(3) Deficit Court fees, if any, be recovered from the applicant.

(4) Out of the above amount so awarded, 60% of amount shall be invested in fixed deposit in any Nationalised Bank in the joint name of applicants for a period of 3 years with condition to collect interest as the case may be. The remaining 40% of amount shall be paid to the applicants equally immediately by account payee chequ