1. National Highway No. 6 which passes through the town of Jalgaon was the scene of an accident on 4-10-1981. On that day in the evening at 3.00 p.m. Ramdas started on his motor-bicycle No. MXO 2274 with his maternal uncle Baliram on the pillion as they wanted to proceed to Jalgaon Railway Station. Another relative, Ashok, also accompanied them on his own motor-cycle No. MWQ 2301 with Bhagwan as a double-rider and the four some were driving to the highway towards the station to give send off to Baliram who was proceeding to Bombay. After Ramdas crossed Paldhi Petrol Pump, a truck with a legend 'Doodh-Ganga' written on its buffer came from the opposite side and knocked down the motor-cycle No. MXO 2274. On account of the impact, the riders were killed Baliram on the spot and Ramdas three days after his admission in the hospital.
2. On these facts Motor Accident Claim Application Nos. 22 of 1982 and 23 of 1982 were filed by the legal heirs of Ramdas and Baliram respectively. The Tribunal made an award of Rs. 71,060/- against the driver and owner of the truck as well as the Oriental Fire and General Insurance Co Ltd. in Claim Application No. 22 of 1982 while an award of Rs. 70,300/- was' made against the same Opponents in Claim Application No. 23 of 1982 which gave rise in First Appeals Nos. 793 of 1984 and 794 by the Insurance Company which are being disposed of by this common judgment.
3. According to the Insurance Company, liability has been wrongly fastened on them, inasmuch as, under the terms of the policy as the driver was disqualified from holding a licence on the date of incident, viz. 4-10-1981, they are not liable to pay any damages. Further on, they also allege that the liability, if any, could not exceed Rs. 50,000/- in terms of the policy and the statute.
4. During the course of arguments a great reliance was placed by Shri Agarwal, the learned Counsel for the Appellants, on the admission of the driver Sukhdeo Bajirao Kalal in the box to the effect that he had no valid licence from 23-4-1981 to 18-2-1982 which covers the data of the accident Shri Agarwal also pointed out that driver Sukhdeo is unequivocal when he says that he was declared as a person disqualified for holding a licence by the R.T.O. during that period and therefore 'could not have a valid licence during that period.'
5. Mr. Pradhan, the learned Counsel for the Respondents, says that this so called admission elicited in the cross examination does-not alone and by itself, prove that the driver was disqualified by the R.T.O. According to Mr. Pradhan, the driver probably did not understand the import of the question put in the cross-examination and probably thought that not holding a licence is tantamount to a 'disqualification.'
6. As the disqualification envisaged by the Motor Vehicles Act 1939 is one which has to be in writing after due enquiry by the R.T.O. it appears to us that both the parties should be allowed a further opportunity to lead evidence on this question viz. as to whether the driver Sukhdeo was or was not 'disqualified for holding or obtaining a driving licence 'within the meaning of Sub-clause (ii) of Clause (b) of Sub-section (2) of Section 96 of the Act.
7. As a result, both the appeals succeed partly and the order of the award of the Tribunal as respects the quantum of damages and liability to pay the same as against original Opponents Nos. 1 Sukhdeo Bajirao Kalal and 2 Purshottam Baburao Attarde is confirmed but, as respects original Opponent No. 3 Messrs. Oriental Fire and General Insurance Co. Ltd. is set aside. The matter is remanded back to the Tribunal for permitting the original petitioners and the Opponent No. 3 the Insurance Company to lead evidence on the issue referred to above. Costs to abide by the final result.
8. The Insurance Company may withdraw the amount of Rs. 50,000/-deposited by it in each of the matters if the sums have not been already invested.