NEW INDIA ASSURANCE CO LTD Vs. PREM LATA

JUDGEMENT

(1.) The appellant insurance company is aggrieved by the award dated 27.7.1993 passed by Motor Accidents Claims Tribunal, Solan, whereby the claim petition of the respondentsclaimants was allowed and compensation of Rs. 1,43,000 was awarded to them to be paid by the appellant insurance company with interest at the rate of 12 per cent per annum from the date of filing the petition till the date of payment if the award amount is not paid within 45 days from the date of order. The only ground for denying its liability to pay the amount of compensation is that the driver of the scooter respondent No. 4 Bhuvan Chand Tiwari was not holding driving licence, more specifically, that his driving licence was for light motor vehicle only and not for scooter independently or by way of endorsement.

(2.) We have heard learned counsel for the parties and gone through the record. We find that in the reply to the claim petition the appellant insurance company took number of preliminary objections and preliminary objection No. 9 was, "That the scooter driver did not possess a valid driving licence at the time of alleged accident. So, on this ground alone the present claim petition is liable to be dismissed". However, no issue was framed in respect of this preliminary objection. In fact, the main defence of the appellant insurance company was that the scooter in question was not insured with it, on the basis of which issue No. 3 was framed that, "Whether the scooter in question was not insured with the New India Assurance Co. Ltd., respondent No. 2, on the date of accident, if so, its effect? OPR-2". This issue was answered in negative as the insurance policy in respect of the scooter in question was placed on record as Exh. R-3. Had the appellant insurance company pressed its preliminary objection that the driver of the scooter was not holding valid licence, the Tribunal would have framed an issue in this regard.

(3.) It appears that the driver of the scooter was aware of the stand of the appellant insurance company that if he failed to prove that he had valid licence to drive the scooter at the time of accident, the appellant insurance company might be absolved of its liability, that is why on his behalf the driving licence Exh. R-5 and a copy of registration certificate Exh. R-6 were placed on record. On the other hand, the appellant insurance company has examined Markande Parshad, RW 1, Senior Clerk of R.T.O. Office, Varanasi, U.P., who on the basis of original record of the licence of the driver of the scooter has stated that it was for light motor vehicle and was not valid for scooter, as licence for scooter was to be obtained separately because it is two-wheeler vehicle. He has placed on record a copy of the entries of the driving licence register Exh. R-1 and the driving licence Exh. R-2. In the crossexamination on behalf of the driver of the scooter he has reiterated that a person holding L.M.V. licence cannot drive a scooter, however, he can drive other vehicles. He has further denied that scooter falls in the category of light motor vehicles.