ORDER U.K. Dhaon and R.P. Yadav, JJ.
1. Heard Shri Tarun Kumar Mishra, the learned Counsel for the appellants, Shri Adnan Ahmad for the opposite party No. 1 and Shri A.N. Trivedi for the opposite party No. 2.
2. This first appeal from order under Section 173 of the Motor Vehicles Act, 1988, is directed against the judgment and award dated 25.9.2003, passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 2, Sultanpur, allowing the claim petition and directing the appellant to pay a sum of Rs. 2,70,000 to the claimants respondents with interest @ 9% per annum.
3. The respondent Nos. 1 and 2, who filed the claim petition before the Tribunal are the parents of the deceased Mohd. Ayaj Khan (aged about 14 years), who died in a motor accident on 18.4.2001 at about 7.00 a.m., while on way to his school. The said accident took place with Truck No. W-03A/2756 owned by Smt. Lalita Devi, the respondent No. 3. Kesri Nandan, respondent No. 3 is said to have been driving the vehicle at the relevant time.
4. Owner and driver of the vehicle did not contest the claim petition.
5. Written statement was filed by the appellant insurance company contesting the claim petition on the grounds, inter alia, that the said truck was being driven in contravention of the terms of the Insurance policy and so the insurance company was not liable for any compensation.
6. The Tribunal on the appreciation of entire evidence on record held that the said truck which caused the accident killing the deceased, Mohd. Ayaj Khan was insured with the appellant insurance company and, therefore, the liability for payment of the compensation was on it. The claim petition for the aforesaid sum was accordingly allowed with interest at the rate of 9% per annum. It has been provided in the award that in the event of the insurance company failing to make the payment of total compensation within one month from the date of the award, the interest @ 12% per annum with effect from the date of the expiry of the said period shall be payable.
7. The learned Counsel for the appellant has fairly conceded that no application was moved before the Tribunal for permission to contest the case on the grounds available to the owner and driver as required under Section 170 of the Motor Vehicles Act. The learned Counsel for the claimants-respondents has submitted that since there was no permission under Section 170, the appellant cannot challenge the quantum or raise any other ground assailing the validity of the award except those provided under Section 149(2) of the Act. In support of this contention, he placed reliance on the case of Punam Devi and Anr. v. Divisional Manager New India Assurance Co. Ltd. and Ors. , it was held in this case that quantum of compensation cannot be challenged and the only ground open to the insurance company is under Section 149(2), to show that the insured was negligent or that he failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of the vehicle. The learned Counsel for the appellant urged that in fact the vehicle was being plied by a person having no driving licence and that amounted to breach of the terms and conditions of the policy. The learned Counsel for the claimants respondents replied that no such specific plea was raised and no evidence was at all adduced to discharge the initial burden by the appellant to prove that the driver was not having a valid licence. Learned Counsel for the appellant referred to para 27 of the written statement and urged that there was a plea raised that the vehicle was being driven in contravention of the terms and conditions of the policy. On a close examination of the written statement, we find that no specific plea has been raised by the appellant to the effect that the driver was not having a valid driving licence, whereas there was a document on record allegedly written by the owner of the vehicle mentioning that the driver, who had been driving the said vehicle was having a valid driving licence. In a claim petition it is necessary for the insurance company to aver and plead specifically that the driver was not having a valid driving licence and to adduce some evidence to discharge its initial burden, which lay on it. Once initial burden is discharged, only then the onus will shift on the other side to prove to the contrary, in the present case, no scintilla or shred of evidence was brought on record at all by the appellant insurance company to prove that the driver was not having a valid driving licence and no specific plea to this effect was raised in the written statement. Therefore, it cannot be held that the vehicle was being plied in contravention or breach of the terms and conditions of the policy and that insurance company will have the option to recover the amount from the owner after making the payment thereof to the claimants respondents.
8. We find no error in the Judgment and award passed by the learned Tribunal. The appeal is devoid of any merit but the award of the penal interest @ 12% per annum after expiry of the period of one month from the date of award was not justified, therefore, we consider it proper to modify that part of the award.
9. The appeal is dismissed but with the modification that no penal interest shall be payable and that part of the award stands set aside. No costs.