(1.) THE appellant, national Insurance Co. Ltd. , insurer of the offending vehicle has preferred an appeal challenging the impugned judgment dated 12/11/2007 passed by learned M. A. C. T. The impugned award has arisen out of the claim petition, viz. , Suit No. 102 of 2007 filed by respondent Nos. 1 and 2 against the appellant as well as against respondent nos. 3 to 7 claiming compensation for the death of Rajiv Kumar.
(2.) THE brief facts, which are necessary for deciding the present appeal, inter alia, are that on 24. 6. 2005 at about 2. 20 a. m. , the deceased was plying the TSR being registration No. DL 1r-C 0476 on Rohini main road towards Sector V and when he reached near the red light point of B. S. A. Hospital, Rohini, Delhi, suddenly one bus came from the direction of Japanese Park in a rash and negligent manner and hit the said TSR scooter as a result of which the deceased fell out of the TSR and sustained fatal injuries and died at the spot. Counsel for the appellant contends that the Tribunal has failed to consider the clear violation of the terms and conditions of the insurance policy. The contention of the counsel for the appellant is that the registered owner of the offending TSR had handed over his vehicle to some other person who was driving the offending vehicle at the time of the accident and, therefore, such driving by the unauthorised driver is in clear cut violation of the terms of the permit conditions. Placing reliance on section 66 of the Motor vehicles Act, the counsel for the appellant contends that the permit of autorickshaw is not transferable and the said autorickshaw has to be driven by the permit holder himself. Counsel for the appellant has also placed reliance on section 149 (2) (a) (i) (c)of Motor Vehicles Act to contend that use of vehicle by person not holding the permit is in clear violation of the conditions of the policy and, therefore, the appellant insurance company is totally absolved and exonerated from paying any compensation amount in favour of the claimants. Not only this, in such a case the insurance company even cannot be burdened to pay the amount at the first instance and then to recover the same from the insured. Section 66 and section 149 (2) of the Motor Vehicles act are reproduced as under:
(3.) IN support of his arguments counsel for the appellant has also placed reliance on the interim order dated 16. 5. 2007, passed by this court in M. A. C. Appeal Nos. 283 and 282 of 2007 directing stay on the operation of the award against the appellant insurance company in similar facts of the case. Counsel for the appellant further contends that appellant insurance company cannot be made liable to pay the compensation amount as no driving licence of the deceased driver was produced or proved on record even after notice under Order 12, rule 8 of Civil Procedure Code was served by the appellant insurance company. The last contention of learned counsel for the appellant is that the Tribunal has not given recovery rights against the unregistered owner of the offending vehicle. In support of his argument counsel for the appellant has placed reliance on the judgment of the apex Court in Rikhi Ram v. Sukhrania, 2003 ACJ 534 (SC ).