(RAMANUJAM, J.)

1. These two appeals have been filed by the Insurance Company against the common award of the Motor Accidents Claims Tribunal, Coimbatore in respect of two claims made by two sets of individuals in respect of two deaths caused by the same accident.

2. On 31st, December, 1971, at 1.30 A.M. three persons, Ibrahim, Gangadharan Nambiar and Moideen Kutty were proceeding form south to north on Jail Road, Coimbatore after attending a film. One T. C. Ganesan who was driving his Car, M.D.A. 3737, came behind in a rash and negligent manner and dashed against Ibrahim and Gangadharan Nambiar. Gangadharan Nambiar died on the spot and Ibrahim died in the Hospital sometime thereafter. The said T. C. Ganesan fied away from the place of accident without giving even the immediate first aid to the injured. He was charged by the police under S. 304-A. I.P.C. and on his admission, the was convicted by the Additional First Class Magistrate, Coimbatore. The widow and children of Ibrahim filed M.C.O.P. No. 55 of 1973 claiming a sum of 50,000/as compensation and the window of Gangadharan Nambiar filed M.C.O.P, No. 56 of 1973 claiming a sum of Rs. 40,000/- The case of both sets of claimants was that the said T. C. Ganesan was rash and neligent in driving his car and that the place of the accident and damage to the vehicle will positively prove his culpable negligence in driving the vehicle.

3. The claim was resisted by the said T.C. Ganesan, the driver of the car as also the appellant-insurer. Their defence was that the driver of the car was keeping to the correct side of the road, that the deceased and another, Moideen Kutty were walking in a drunken mood, that when he sounded the horn from behind, the said three persons walking in a haphazard manner came to the middle of the road and fell under the car and that therefore, the driver of the car cannot be said to be rash and negligent. They also contended that in any event the compensation claimed in both the cases was excessive. The appellant as insurer raised an additional defence that at the time of the accident the driver of the car was not having a valid licence and, therefore, the insurer was not liable to indemnify the insured.

4. The Motor Accidents Claims Tribunal, after going through the evidence, both oral and documentary in considerable detail, came to the conclusion that the accident which resulted in the death of the two deceased was due to the rash and negligent driving of the car by the said T. C. Ganesan, and that the deceased were not guilty of any contributory negligence. As regards the quantum of compensation, the Tribunal fixed a compensation of Rs. 25,000/- in each of the two cases. The driver of the car has not challenged the award of the Motor Accidents Claims Tribunal, but it is only the insurer who has filed the above appeals.

5. In the grounds of appeal, two contentions have been urged, (1) That as the driver of the car did not have a valid licence at the time of the accident, the Insurance Company is not liable to meet the claim for compensation made in the above two cases, and (2) in any event, the compensation granted by the Tribunal is excessive.

6. As regards the second contention, this court has held in the United India Fire and General Insurance Co. Ltd. v. Parvathi and others 1978 T.L.N.J. 482 C.M.A No. 534 of 1975 that the insurance Company is not entitled to question the quantum of compensation without bringing in the insured as a co-appellant. In view of the said decision, this contention has not been urged before us by the learned counsel for the appellant at the time of the hearing of the appeals.

7. As regards the first contention, the submission of the learned counsel for the appellant is that admittedly the driver of the car did not have a valid license at the time of the accident and, therefore, the insurance company is entitled to avoid the contract of insurance. The Tribunal found that. T. C. Ganesan had a driving licence which had expired towards the end of September, 1971, that the same had been renewed only on 7th, January, 1972, and that as such on 31st, December, 1971, the date of the accident he had no valid licence. However, it took the view that as the driver had a valid licence earlier and had not been disqualified from driving or holding a driving licence and as S. 96(2)(b)(ii) of the Motor Vehicles Act had not been incorporated in the insurance policy, the appellant has to meet the claim. This view of the Tribunal has been challenged before us.

8. However, we are of the view that the Tribunal has come to the right conclusion. S. 96(2)(b)(ii) enables the insurance company to avoid the contract of insurance if a condition is incorporated in the policy to the effect that the vehicle should be run only by a person holding a licence. But in this case, one of the conditions incorporated in the policy is that the vehicle should not be driven by any person who is not duly licenced or by a person who has been disqualified from holding or obtaining a driving licence during the period of disqualification. It is therefore, clear that the appellant has not chosen to take ad vantage of the provision contained in S. 96 (2) (b) (ii) by incorporating a suitable provision in the insurance policy excluding the use of the vehicle by all non-licensees. In similar circumstances it has been held in Public Prosecutor v. Lim Ghin Ghaun 1972 A.C.J. 197 that the insurance company cannot avoid the liability as the driver of the car who drove it had not been disqualified from holding a driving licence. Public Prosecutor v. Albert Sen 1972 A.C.J. 381 is also to the same effect. A similar view has also been taken in Chanchallam and others v. Shailesh Kumar Pandurao Thakri & others. 1974 A.C.J. 393. There are also two decisions of this court which also laid down the same principle. In Madras Motor & General Insurance Co. Ltd. v. Madathi Ammal A.I.R. 1975 Mad. 250 [LQ/MadHC/1974/59] =87 L.W. 888 Maharajan, J. has taken the view under similar circumstances that S. 96(2) (b)(ii) cannot be so interpreted as to exonerate the Insurance Company from its liability where it specifically has undertaken to cover liability in respect of a person who at the time of the accident had no effective licence but who had held a licence and was not disqualified from holding or obtaining a licence. The said view also found acceptance before a Division Bench of this Court in Srinivasa Roadways v. Saroja 1974 II M.L.J. 364. In view of the above decisions and in view of the provision contained in the policy, the appellant cannot avoid its liability.

9. The Civil Miscellaneous Appeals are, therefore, dismissed with costs.