1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR FIRST APPEAL NO. 499 OF 2009. National Insurance Co. thr. Div. Manager Vs. Indirabai wd/o Gajanan @ Ganpati Hanmalwar & Ors. ------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------- Smt. S. P. Deshpande Adv for appellant. Shri Nirbhay Chauhan Adv H/f Shri Anilkumar Adv for respondents. CORAM: C. L. PANGARKAR J. DATED: 7 th OCTOBER, 2009. C. A. No. 2608 of 2009: This application has been filed for amendment of the Written Statement. It is contended by the appellant that the appellant after investigation came to know that driver of the truck did not hold a valid licence. The appellant therefore wants to amend the appeal memo. It may be mentioned that such a 2 plea was not actually raised before the Motor Accident Claims Tribunal. It cannot be raised for the first time in this appeal. Further no amendment to the Written Statement is being sought. The accident had taken place in the year 1995. Since 1995 till 2009 the appellant has not taken any steps to show that driver did not hold licence. In view of this the application cannot be allowed at such a belated stage. Same is rejected. Heard. This appeal has been preferred against the award passed by the Motor Accident Claims Tribunal. It is alleged that on the date of accident the deceased was standing by the side of the road. Truck driven by the respondent No.3 hit the said deceased and he died of the injuries sustained in the accident. His wife and children filed the claim before Motor Accident Claims Tribunal. The said claim was opposed by the present appellant. The only ground that was raised by the present appellant in the Written Statement was that deceased was under the 3 influence of liquor and he was responsible for the said accident. The learned Judge of the Tribunal after considering the evidence found that it was the driver of the truck who was negligent in driving the truck and there was no negligence what so ever on the part of the deceased. It is clear from the contention of the applicant itself that deceased was standing by the side of the road and he was hit by the truck. It is therefore apparent that negligence cannot be put at the door of the deceased. From the evidence it is clear that it was due to the rash and negligent driving of the truck that accident took place. I do not think that learned Judge has committed any error in appreciating the same. Counsel for the appellant submits that liability has been fixed on the present appellant only on the basis of the Cover Note. The Cover Note goes to show that vehicle was insured with the present appellant. It was for the present appellant to show that cover note did not pertain to the policy issued by it. There is no 4 evidence available on record to that effect. In view of this learned Judge of the Tribunal had rightly fastened the liability on the insurance company. There is no substance in the appeal. It is dismissed in limine. JUDGE svk