JUDGMENT : ORDER IN FIRST APPEAL 1. By way of this Appeal, the appellant – Insurance Company has challenged the judgment and award dated 29.07.2022 passed by the learned Motor Accident Claims Tribunal (Auxiliary-IV), Mahesana in M.A.C.P. No.428 of 2012 inter-alia contending the grounds that the learned Tribunal has failed to appreciate the evidence on record in light of the fact that the rider of the motor cycle was not holding the license and therefore, no liability could be attached to the Insurance Company. 2. Learned Advocate for the appellant – Insurance Company Mr. Maulik J. Shelat submitted that while discharging the matter, the learned Tribunal has been oblivious of the order below Exhibit 36 where the learned Tribunal has granted the application for witness summons to examine the Driver of the Motor Cycle bearing Registration No.GJ-01-JS-8183, who though was proposed in the Cause Title as respondent No.1, as the Driver of the above motor cycle, however, was not named and was not joined in the Claim Petition filed by the claimants. It is further submitted that it had become therefore, incumbent for the Insurance Company to move the Court for witness summons to examine the same on the specific ground which was raised by the Insurance Company of no driving license as the driver was on the public road without any valid driving license. 3. Learned Advocate Mr. Maulik J. Shelat referring to the observations of the learned Tribunal submitted that these were to the effect that the appellant has not produced copy of the License and the registration documents. It is further submitted that it would go without saying that no driving license was produced by the driver of the motor cycle before the Investigating Officer as the same could not be brought on record by the claimants. In view of the fact when the application – Exhibit 36 was allowed and when summons was by way of Exhibit which was served as per the Report of the Bailiff at Exhibit 37, the learned Tribunal should have considered the said fact and adverse inference was required to be drawn and the plea of the Insurance Company, thus was required to be believed that the motor cyclist was not holding driving license at the time of accident. It is further submitted that the learned Tribunal has committed an error in observing that the respondent No.1 has not stepped into the witness box to prove about the accident, Further stated it has been inadvertently noticed by the Tribunal though there was no party as respondent No.1 to be considered as driver of the motor cycle and hence, such observations is also not consistent with the Report. 4. It is further submitted all these facts are required to be brought to the notice of the learned Tribunal and appreciation of evidence is to be made accordingly and thus, accordingly made a prayer for remanding the matter. 5. Countering the above arguments, learned Advocate for the respondent No.2 Mr. Ankit Shah submitted that the Insurance Company now cannot take the plea of non-observation of order below Exhibit 36 as at the relevant point of time, it was not brought to the notice of the learned Tribunal and hence, submitted that Appeal should be rejected outright. 6. Having heard learned Advocates on record and on perusal of the records, in the title of the judgment and award of the learned Tribunal, it appears that no name and address of the Driver of the motor cycle bearing Registration No.GJ-01-JS-8183 was mentioned in the petition memo. The Insurance Company had moved Exhibit 36 by naming the driver as well as showing the residential address, the Report of the bailiff shows that the summons was tendered and the Report regarding service of summons was noted. 7. In view of the fact that copy of the driving license was not produced by the claimant and further when no driver of the motor cycle was not joined as party respondent, and the plea of not holding driving license though raised by the Insurance Company has not been dealt with in the evidence, this Court is of the opinion that the matter requires consideration on the liability aspect, where the motor cyclist holding the driving license at the time of accident is an issue to be addressed prior to deciding the liability. 8. Thus, for the reasons given hereinabove, the judgment and award dated 29.07.2022 passed by the learned Motor Accident Claims Tribunal (Auxiliary- IV), Mahesana in M.A.C.P. No.428 of 2012 is quashed and set aside. 8. Thus, for the reasons given hereinabove, the judgment and award dated 29.07.2022 passed by the learned Motor Accident Claims Tribunal (Auxiliary- IV), Mahesana in M.A.C.P. No.428 of 2012 is quashed and set aside. The matter is remanded to the learned Tribunal for re-consideration only for the aspect of the driving license and liability of the Insurance Company. M.A.C.P. No.428 of 2012 is ordered to be restored on the File of the learned Tribunal and after issuance of notice, opportunity be granted to the parties to deal with the above aspect and if necessary, evidence may be permitted to be led if necessary and produced by the parties. Let the above exercise be completed within a period of four months from the date of receipt of writ of the order of this Court. ORDER IN CIVIL APPLICATION (FOR STAY) 1. It is brought to the notice of the Court that pursuant to the order dated 23.06.2023 passed by this Court, the Insurance Company has deposited the entire awarded amount before the concerned Tribunal. 2. In view of the same, the interim relief granted earlier stands confirmed. Out of the amount so deposited by the Insurance Company, 70% be invested in a Fixed Deposit with any nationalized Bank, in the name of the original claimant/s, initially, for a period of two years, (which shall be renewed from time to time) without any reference to this Court, or till the final disposal of the First Appeal, whichever is earlier. Interest accruing on such Fixed Deposit shall be ACCUMULATED. Insofar as the remaining 30% is concerned, the same shall be disbursed in favour of the original claimants, after proper verification. Orders regarding disbursement of the Fixed Deposit Receipt with accumulated interest shall be passed at the time of final disposal of the First Appeal. The original Fixed Deposit Receipt shall be kept in the custody of the Nazir of the Court/Tribunal. No any advance, loan or encashment against the Fixed Deposit/s be permitted by anyone. 3. The application stands disposed of accordingly. Rule is made absolute to the above extent.