MILAP CHANDRA, J. —, This is an appeal under Section 110-D, Motor Vehicles Act, 1939 (hereinafter referred to as the Act) against the award of the Motor Accident Claims Tribunal, Bikaner dated February 10, 1987 by which the claimant-respondent No. 2 has been granted compensation to the tune of Rs. 58,000/- with interest at the rate of 9% against the appellant No. 1 Babu (driver of the (vehicle) and the appellant No. 2 Yusuf Khan (owner of the vehicle). The respondent No. 2 Oriental Fire & General Insurance Company has not held liable to pay the compansation. The facts of the case giving rise to this appeal may be summarised thus.

2. On July 1, 1983, the claimant-respondent No. 1 borarded 3-wheeler taxi No. RSF 3049 on hire at Bikaner for going to Gangashahar. At that time, it was being driven by Babu (appellant No. 1) and was owned by his brother Yusuf Khan (appellant No. 2), It met with an accident near Hanumanjis temple Gangashahar. As a result thereof; the claimant-respondent No. 1 received injuries. She filed a claim petition before the Motor Accident Claims Tribunal, Bikaner against the appellants and the Insurance Company (respondent No. 2). The appellants filed their reply, seriously opposing the claim petition. The Insurance Company did not choose to file its reply. The claimant, owner and driver of the vehicle produesd their evidence. The Insurance Company did not produce any evidence. After hearing the parties, the learned Tribunal gave award as said above. The Insurance Company was not held liable on the ground that the driver Babu Khan was a minor at the time of the accident and he was not holding any driving licence.

3. The learned counsel for the appellants has contended that the learned Tribunal seriously erred in dismissing the claim petition against the respondent No. 2 particularly when no reply to the claim petition was filed and no evidence was produced by it. He relied upon Skandia Insurance Comp-any Ltd. v. Kokilaben Chandravadan, (1).

4. in reply, it has been contended by the learned counsel for Oriental Fire & Insurance Company Ltd. (respondent No. 2) that the Tribunal rightly held that the Insurance Company was not liable to pay any compensation as the vehicle was being driven by a un-licencend driver. He relied upon Section 96 (2) (b) (ii) of the Act.

5. The learned counsel for the claimant-respondent No. 1 duly supported the appeal and adopted the aforesaid arguments advanced by the learned counsel for the appellants.

6. It is the admitted case of the parties that the claimant Kamla Devi boarded the 3- wheeler taxi RSF 3049 on hire on the day of the accident, it was being driven by the appellant No. 1 Babu, it was owned by his brother Yusuf Khan (appellant No. 2), the appellant Babu was minor at that time and he was not holding any driving licence. The appellant No. 2 Yusuf Khan has stated in his reply that his brother Babu (appellant No. 1) drove the vehicle without his permission. Babu Khan has admitted in his statement that he took the said 3-wheeler taxi without the permission of his brother Yusuf Khan. Yusuf Khan has deposed that he never permitted his brother Babu Khan to drive his 3-wheeler taxi. There is no material on record to its contrary. Under these facts & circumstances, it is very difficult to hold, that the appellant No. 2 committed the breach of the condition of the insurance policy requiring that the vehicle was to be driven by a licensed driver only. It has been observed in Skandia Insurance Company Ltd. v. Kikilaben Chandravadan, (supra) as under:—

"14. It is therefore abundantly clear that the insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is not (sic) duly licensed will have to be in charge of the vehicle. The very concept of infringement or violation of the promise that the expression breach carries within itself induces an inference that the violation or infringement on the part of the promisor must be a wilfu

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