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2008 DIGILAW 776 (ALL)

ORIENTAL INSURANCE COMPANY LTD. v. DEVI KUMAR

2008-04-04

AMITAVA LALA, SHISHIR KUMAR

body2008
JUDGMENT Honble Amitava Lala, J.—This appeal has been filed by the Insurance Company being aggrieved and/or dissatisfied with the judgment and order dated 31.1.2008 passed by the concerned Motor Accident Claims Tribunal, Etawah awarding compensation of Rs. 1,94,200/- along with the interest at the rate of 7% interest per annum to be paid to the claimant on account of death of the deceased. 2. The application under Section 170 of the Motor Vehicles Act, 1988 filed by the Insurance Company before the Tribunal to contest the claim petition has been rejected by the Tribunal. In spite of the same, the appellant did not make any application under Article 227 of the Constitution of India, if at all aggrieved by such order. In this context reference has been made by learned counsel for the respondent reported in AIR 2002 SC 3350 , National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and others, followed by Division Bench judgment of this Court reported in 2007 (4) ADJ 101 (DB), Oriental Insurance Co. Ltd. v. Smt. Manju and others. 3. By preferring this appeal, the Insurance Company contended before this Court that in spite of rejection of such application he is entitled to prefer the appeal. There is a clear violation of the conditions of the insurance policy in running the vehicle by the driver. The driving licence is allowed to ply Light Motor Vehicle (Pvt.) The Insurance Company has cited judgment of the Supreme Court before the Tribunal as well as before this Court reported in 2006(2) TAC 1 (SC), National Insurance Co. Ltd. v. Kusum Rai and others to establish that the driver not having valid driving licence as per Section 2 (35) of the Motor Vehicles Act cannot drive the vehicle i.e. Jeep Taxi for commercial purpose. 4. The Tribunal held that the Insurance Company failed to produce the original policy before the Tribunal and as such burden of proving the case cannot be shifted to the owner. 5. Kusum Rai and others (supra) is also cited before this Court to establish that in the said judgment Section 3 was considered in addition to Sections 2(3) and 2(35) of Motor Vehicles Act as far as necessity of direct licence. Therefore, the Tribunal should have proceeded on the basis of such ratio of the judgment. 6. 5. Kusum Rai and others (supra) is also cited before this Court to establish that in the said judgment Section 3 was considered in addition to Sections 2(3) and 2(35) of Motor Vehicles Act as far as necessity of direct licence. Therefore, the Tribunal should have proceeded on the basis of such ratio of the judgment. 6. We are of the view that in deciding the question of Private Service Vehicle and Public Service Vehicle under Sections 2(3) and 2(35) definition of Light Motor Vehicle as under Section 2(21) is also to be seen. Definition of Light Motor Vehicles is as follows : “(21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms.” Therefore it is a debatable issue. 7. In any event, we are not inclined to proceed to that score because the amount of compensation in the lower side and under no circumstances the claimant should be made to suffer. The requirement of law under such cited judgment (Kusum Rai and others) (supra) is to be seen in the light of three Judges’ decision of Supreme Court reported in 2004(3) SCC 297 , National Insurance Co. Ltd. v. Swaran Singh and others where it has been held that it is one thing to show that the Insurance Company are entitled to raise its grievance but it another thing to show that despite the fact that its defects has been accepted having regard to the facts and circumstances of the case the Tribunal has power to direct them to satisfy the decree at the first instance and then direct to recover the same from the owner. 8. However, in these circumstances we dispose of the appeal at the stage of admission with the direction that the Insurance Company is at liberty to move application, if so advised and in such case on the basis of ratio of the judgments and also on the production of original policy in the same proceedings the subject matter of recovery or non-recovery of the claim by the Insurance Company cannot be decided by the Tribunal. 9. Incidentally, the appellant-insurance company prayed that the statutory deposit of Rs. 9. Incidentally, the appellant-insurance company prayed that the statutory deposit of Rs. 25,000/- made before this Court for preferring this appeal be remitted back to the concerned Motor Accidents Claims Tribunal as expeditiously as possible in order to adjust the same with the amount of compensation to be paid to the claimants, however, such prayer is allowed. ————