1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR FIRST APPEAL NO. 263 OF 2001. Oriental Insurance Co. Ltd. Nagpur. Vs. Vatsalabai wd/o Roopchand Vaidya & 6 Ors. ------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------- Shri D. N. Kukday Adv for appellant. Shri A. P. Girhe Adv for respondents. CORAM: C. L. PANGARKAR J. DATED: 23 rd SEPTEMBER, 2009. This appeal is preferred by original defendant No.1 Insurance Company against the award passed by the Motor Accident Claims Tribunal Nagpur. The respondents 1 to 6 had filed an application under Section 166 of the Motor Vehicles Act. It is their contention that Roopchand Vaidya was driving the motor cycle who was hit by a truck owned by the respondent No.7. It was alleged that he was 2 earning Rs. 7000/- per month and was 40 years of age. Said application was opposed by the present appellant. After recording the evidence the learned Judge of the Tribunal found that the claimants were entitled to compensation of Rs. 5,35,000/- and passed an award to that effect. Insurance Company has come up in appeal. The award is challenged on two counts; mainly the quantum of the compensation awarded and the breach of condition of policy. Learned counsel for the appellant submits that the compensation awarded to the claimants was excessive and the Court had not taken into consideration the proper income of the deceased. The contention has to be rejected because of the fact that it is not shown that an application under Section 170 was moved before the Court seeking permission to raise those defences which a owner could raise. For this simple reason the contention needs to be rejected. Next ground that is raised by the learned 3 counsel is that driver of the truck did not possess valid licence and therefore there was a breach of the condition of the insurance policy. After having gone through the judgment of the trial Court, it is found that such a defence was not at all raised in the trial Court. For the first time this defence cannot now be raised in the appeal. In the circumstances, I see no reason to admit the appeal. If at all the insurance company has any evidence to show that driver did not hold the licence, it is at liberty to recover same from the owner by filing appropriate proceedings. There is no substance in the appeal. It is dismissed in limine. JUDGE svk