Hon’ble Vishnu Chandra Gupta, J.—This appeal under Section 173 Motor Vehicle Act, 1988 (for short ‘MV Act’) has been preferred by National Insurance Co. Ltd. against the award dated 3.12.2009 passed by Motor Accidents Claims Tribunal /Additional District Judge, Court No. 4, Faizabad (For short ‘Tribunal’) in Claim Petition No. 76 of 2008 (Smt. Golana v. National Insurance Co. and another) awarding compensation of Rs. 1,54,500/- with pendente-lite and future simple interest at the rate of 7.50% per annum to Smt. Golana, the sole claimant-respondent on account of death of her daughter Gudiya.

2. The factual matrix of the case is that deceased Gudiya, aged about 12 years alongwith her mother Golana was returning after listening the preach of Sati Baba and proceeding towards their village and when reached near the house of Dr. Akhtiyar on Faizabad - Lucknow highway on 31.5.2005 at 11.00 a.m., a motor-cycle having registration No. 32-AG-7325 driven by its driver in rash and negligent manner hit Gudiya from behind. The driver of the motor-cycle stopped for a short while and on the pretext of making arrangement of conveyance fled away from spot. Gudiya was taken to District Hospital, Faizabad, where after few hours during treatment she succumbed to be injured.

3. Smt. Golana claimant lodged the First Information Report of this accident on 1.6.2005 at 18.05 hours in Police Station Radauli having Crime No. 93 of 2005 under Section 279, 336, 304A I.P.C.. The petition was filed under Section 166 MV Act for compensation of Rs. 5,32,064/- with interest at the rate of 9% per annum.

4. The petition was contested by National Insurance Company, the Appellant and owner of the motor-cycle, Respondent No. 2. The owner of the motor-cycle Ghanshyam Rawat, Respondent No. 2 pleaded that he is owner of the motor-cycle involved in accident. The same was duly insured on the date of accident with Appellant’s Insurance Company. He further pleaded that his motor-cycle was stolen in between 7.15 a.m. to 4.50 p.m. from Loco Railway Station, Lucknow. He also lodged First Information Report of theft of motor-cycle in Police Station Alambag on next day. Subsequently, after recovery of the motor-cycle by the Police, he got it released from the Court. On this basis, it has been pleaded that motor-cycle was not in his control and possession at the time of accident. Therefore, he is not liable. The liability would be of Appellant Company.

5. The National Insurance Company disowned the accident and alleged to be doubtful and also stated that the driver of the vehicle was not having any valid and effective driving license and the Insurance Company would not be liable.

6. The Tribunal framed different issued and recorded the findings thereon on the basis of evidence and material available on record.

7. Issue No. 1 was relating to accident, negligence of driver of motor-cycle and death of Gudiya, which was decided in affirmative and in favour of the claimant.

8. Issue No. 2, which relates to insurance of motor-cycle with Appellant company was decided in affirmative and held therein that motor-cycle was duly insured at the time of accident.

9. While deciding Issue No. 3, which was related to breach of terms of policy and liability to pay compensation, it was held that O.P. No. 2 was not driving the vehicle in question at the time of accident because motor-cycle was stolen so admittedly owner was not aware as to who was driving the motor-cycle at the time of accident. Therefore, the fact that who was the driver of the vehicle and whether that person was possessing any driving license of the motor-cycle or not could not be proved.

10. Finally, under issue No. 4, the Tribunal determined compensation of Rs. 1,54,500 and liability to pay was fastened upon the appellant. The petitioner Golana was found entitled to the compensation.

11. Heard learned counsel for the parties and perused the record of the Tribunal and of this Court.

12. The fact relating to theft of moto