Judgment 1. This appeal is directed against the judgment and award dated 24.2.2004 passed by the learned 2nd Addl. District Judge-cum-M.A.C.T., Jehanabad in M.A.C. No.-gy||whereby and whereunder he has directed the appellant Oriental Insurance Company Ltd. to pay the compensation of Rs. 7,78,580/- with interest @ 9% per annum with effect from the date of filing of the application for compensation to the respondent 1 st set on account of the death of Dr. Chhote Prasad Singh, Principal, T.P.S. College, Patna in motor vehicle accident. 2. The case of the claimants (respondent 1st party) is that on 17.10.1992 Dr. Chhote Prasad Singh, the owner of fiat car No. BR-18/006 was going to Gaya from Patna in his car alongwith some lecturers. His son Shailendra Kumar was driving the car and when they reached near Paleya village a jeep bearing registration No. BHM 4379 came from the opposite side being driven rashly and negligently and dashed the right side of the car and both the driver of the car tried to save but the car fell down in the ditch by the side of the road. The passengers of the car were injured and Dr. Chhote Prasad Singh died on the way to P.M.C.H. 3. The claimant filed the claim petition on 15.4.93 against the owner, driver of the insurer (appellant) of the jeep. 4. The owner driver contested the claim. Their case in their written statement is that the manner of accident as narrated by the claimants is totally incorrect. The deceased died due to negligence on the part of the driver of the fiat car. 5. The Oriental Insurance Company (appellant) filed a written statement stating, inter alia, that the driver of the jeep was not having a valid and effective driving licence and so, the Insurance Company was not liable to pay any compensation and that the amount paid by the company under Section 140 of the M.V. Act is recoverable from the owner. 6. It appears that though the owner contested the claim, the Insurance Company was permitted by the Tribunal under Section 170 of the M.V. Act to contest the claim on all grounds available to the owner. 7. The claimants examined three witnesses in support of the occurrence. The owner examined five witnesses including the driver in support of their case on the manner of accident. 8. 7. The claimants examined three witnesses in support of the occurrence. The owner examined five witnesses including the driver in support of their case on the manner of accident. 8. The Insurance Company examined one witness to prove that Kishori Singh, the driver of the jeep, had no licence on the date of occurrence. 9. The Tribunal after considering the evidence on record came to this finding that the evidence on record proved that the jeep was being driven rashly and negligently and as the evidence is clear that the right side of the car was damaged, the car falling in the ditch in the left side and this speaks that the driver of the jeep was negligent causing the accident resulting in the death of the deceased and it was also not a case of contributory negligence. The Tribunal, therefore, after taking into account the income of the deceased and his age passed the impugned order. 10. Learned counsel for the appellant (insurer) submitted that in the criminal case relating to the occurrence the driver has been acquitted and it cannot be held that the driver of the jeep was negligent. The fact is that the driver of the car was negligent and on account of his negligence the occurrence took place and as two vehicles were involved in the accident, it was also a case of contributory negligence and so, the appellant alone cannot be liable to pay compensation. In support of his submission, he relied on the decisions of the Supreme Court reported in (1996)3 SCC 446 and (1996)2 SCC 157 . 11. He further submitted that the verification report of Prabhat Kumar Ranjan examined on behalf of the appellant (Ext. A1) would show that the driving licence of the driver of the jeep was not valid on the date of accident. Therefore, there was a breach of condition of policy and so, the appellant would not be liable to pay any compensation even if the jeep driver was responsible for the accident. 12. He then submitted that the deceased was not a third party and on this ground also the claimants are not entitled to any compensation. In support of his submissions he relied on the decision of the Supreme Court reported in (2004)4 SCC 553. 13. Learned counsel for the claimants/respondents defended the order. 14. 12. He then submitted that the deceased was not a third party and on this ground also the claimants are not entitled to any compensation. In support of his submissions he relied on the decision of the Supreme Court reported in (2004)4 SCC 553. 13. Learned counsel for the claimants/respondents defended the order. 14. It appears from the evidence of A.W. 1 Shailendra Kumar, who was driving the car, that he was going from north to south and when they reached near an open bridge of Makhdumpur, the jeep bearing No. BHM 4379 came from the opposite direction covering his right side of the road and when the car was on the bridge, the jeep hit the right side of the car as a result of which the car was imbalanced and it fell down from the bridge and all the persons who were in the car received injuries and his father was taken to Makhdumpur Referal Hospital and from there he was taken to P.M.C.H. when the doctors declared him dead. In cross-examination, he has stated that when he first saw the jeep it was at a distance of 15-20 yards from his car and when the jeep was at a distance of 3-4 it felt the jeep was being driven rashly and on this he tried to save the car and went towards left but the jeep dashed the right portion of the car. 15. A.W. 2 a lecturer, who was also in the car, has corroborated the evidence of A.W. 1 and has stated that the jeep was coming in a high speed and dashed their car. In cross-examination he has stated that when the car moved over the bridge there was no bus or truck there and that the right portion of the car was damaged and that the car had fallen on its left side. A.W. 3 who claims to be passing on motorcycle at the time of accident, has also stated that the jeep dashed the car as a result of which the car fell down and the jeep was covering the road to its right side and that it dashed the real portion of the car with its front portion. 16. A.W. 3 who claims to be passing on motorcycle at the time of accident, has also stated that the jeep dashed the car as a result of which the car fell down and the jeep was covering the road to its right side and that it dashed the real portion of the car with its front portion. 16. O.P.W. 1 the driver of the jeep, on the other hand, has stated that when he reached ahead of Makhdumpur market, he saw the bus and a fiat car coming fast from the opposite side the bus then stopped and the passengers were getting down. In the meantime, he lowered the speed of the jeep but the car over took the bus and in that process became imbalanced and fell down from the bridge. He has further stated that he has been acquitted in the criminal case lodged against him in this connection. O.P.Ws. 2, 3, 4, 5 have also more or less deposed to the same effect. 17. But though the parties have examined witnesses in support of their case regarding the manner of occurrence. The consistent evidence of A.Ws. is that the right side of the car was damaged. It was also the evidence that the car fell down from the bridge on the left side. The Tribunal has held great emphasis on this fact that how the car could be damaged on the right side unless the jeep had hit it. I find substance in the finding of the Tribunal. There is no case of the respondents that the car was not damaged on the right side. No suggestion in this regard has also been given to the A.Ws. The evidence of A.W. 1, on the other hand, is that he had stopped his jeep at the time of accident. The car would not have been damaged on the right side on account of fall as it had fallen on the left side. So, when the evidence is reliable that the car was damaged on its right side, the evidence of A.Ws. has to be accepted that the jeep hit it and it occurred on account of fault of the driver of the jeep. 18. The evidence of the driver of the jeep is that he has been acquitted in the criminal case but that is no ground to hold in this case that he was not negligent. has to be accepted that the jeep hit it and it occurred on account of fault of the driver of the jeep. 18. The evidence of the driver of the jeep is that he has been acquitted in the criminal case but that is no ground to hold in this case that he was not negligent. There may be other grounds for not finding him guilty in the criminal case. 19. As regards the question of contributory negligence only because two vehicles are involved. It cannot necessarily be held that the case is of contributory negligence. In case of contributory negligence both the vehicles must contribute something towards accident, but in this case the accident took place only on the fault of the driver of the jeep. So, no question of contributory negligence arises in this case. The decisions relied on by the learned counsel for the appellant are not applied in this case. 20. Therefore, the tribunal has rightly held that the accident resulting in the death of the deceased took place on account of negligence of the driver of the jeep. 21. As regards breach of condition of the policy, the report (Ext.-A-1) shows that Kishori Singh, the driver of the jeep, had a driving licence originally issued by the District Transport Officer, Nalanda for a period of 29.8.1986 to 28.8.1989. The licence was renewed for the period 21.9.1989 to 20.9.1992, 30.4.1993 to 29.4.1996, 27.8.1997 to 26.8.2000. It is, thus, evident that the licence was not renewed from 21.9.1992 to 29.4.1993 when the accident took place on 17.10.1992. The driver of the jeep, hence, had no driving licence on the date of accident. But it has been held by the Supreme Court in the case of National Insurance Company Ltd. V/s. Swam Singh & Ors., 2004 3 SCC 297 , that "mere absence fake or invalid driving licence or disqualification of the driver for driving at the relevant time are not in itself defences available to the insurer against either the insured or third party. To avoid the liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time". To avoid the liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time". It has been further held therein that "even where the insurer was liable to prove breach on the part of the insured concerning the policy conditions regarding holding of a valid licence by the driver of his qualification to driver during the relevant period, the insurer would not be allowed to avoid the liability towards the insured unless the said breach or breaches on the condition of the driving licence is/are so fundamental as are found to have contributed to the cause of accident". 22. In this case, the owner of the jeep has been examined as O.P.W. 6. He has been cross-examined on behalf of the appellant. He has of course stated that he does not know that the driver who was driving the jeep on the date of accident has no driving licence on that date. But, from this statement alone, it cannot be said that the owner was in fact negligent in this regard. However, even if the insured owner is held to be guilty of- negligence, that defence is available to the insured* only against the insurer and not against the third party. So, whether the insured was guilty of negligence in the matter of aforesaid accident or the appellant cannot avoid the liability to pay the compensation to the claimants. Then as the driver had valid driving licence from 29.8.1986 to 28.8.1989, from 21.9.1989 to 20.9.1992 and also from 3.4.1993 to 29.4.1996, 27.8.1997 to 26.8.2000 (i.e. having no licence during the period in question), it cannot be said, the breach of condition of driving licence was so fundamental as to have contributed to cause of the accident. Therefore, in this case, the insurer cannot avoid liability towards the insured. 23. Then as regards objection of the appellant that the deceased was not a third party, though he was owner of the car, he was not owner of the offending vehicle. He had no privity of contract with appellant so far jeep is concerned. So, he was a third party. The submission is misconceived. 23. Then as regards objection of the appellant that the deceased was not a third party, though he was owner of the car, he was not owner of the offending vehicle. He had no privity of contract with appellant so far jeep is concerned. So, he was a third party. The submission is misconceived. The decision of the Supreme Court reported in (2004)8 SCC (sic) relied on by the learned counsel for the appellant in this regard is not applicable in this case. 24. So far quantum of compensation the same has not been challenged by the appellant, the amount is also not excessive. 25. In view of the above discussions made above, there appears no merit in this appeal. The same, accordingly, is dismissed. 26. Learned counsel appearing for the claimants prayed for withdrawal of the statutory amount of Rs. 25,000/- deposited by the Insurance Company. 27. The prayer is allowed and the claimants are directed to withdraw the money as per practice and procedure followed in this Court.