IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. F.A.O.(MVA) No.: 396 of 2003. Reserved on: 10.7.2008. Decided on: 14.08.2008. Oriental Insurance Company. … … Appellant. Versus Smt. Surinder Kaur and others. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellant: Dr. Lalit K. Sharma, Advocate. For Respondents No.1 to 5: Sh. Bimal Gupta, Advocate. For Respondent No.6: Ms. Jyotsna Rewal Dua, Advocate. For Respondents No.7 (a), (b) and (d): Mr. Neel Kamal Sood, Advocate. For Respondent No.8: Mr. H.S. Rawat, Advocate. Rajiv Sharma, Judge: The present F.A.O. has been preferred against the award passed by the learned Motor Accident Claims Tribunal-I, Sirmaur District at Nahan in M.A.C. Petition No.27-MAC/2 of 2002 on 1.4.2003. The brief facts necessary for adjudication of this F.A.O. are that deceased Raghu Nath while driving oil tanker bearing No.HP-17-3274 owned by respondent No.6, met with an accident on 19.1.2002 and succumbed to his injuries. The oil tanker being driven by the deceased Whether reporters of local papers may be allowed to see the judgment? No. - 2 - was hit by H.R.T.C. bus bearing No.HP-28-0701 owned by respondent No.8 and driven by Shri Sohan Singh (deceased). The respondents No.1 to 5 being legal heirs of deceased Raghu Nath have preferred a claim petition under Section 163-A of the Motor Vehicles Act in the Court of learned M.A.C.T., Sirmaur at Nahan. The appellant has filed reply to the claim petition. It was primarily contended by the appellant-Insurance Company in the reply that the petition ought to have been filed before the Court of learned Commissioner, Workman Compensation and the driver of oil tanker bearing No.HP-17-3274 did not possess a valid and effective driving licence on the relevant date and time. The respondent No.6 filed a separate reply. The respondent No.6 has admitted that the deceased was in possession of a valid driving licence and he was getting Rs.2700/- per month as salary. Shri Sohan Singh, driver has also filed reply to the claim petition. The respondent No.8, H.R.T.C. filed a separate reply. The principal stand of the Driver, Sohan Singh (deceased) and respondent No.8 was that the accident was not caused due to rash and negligent driving of Sohan Singh. The learned M.A.C.T. on the basis of the evidence led by the parties has awarded a sum of Rs.1,42,500/- as compensation to the claimants by way of award dated 1.4.2003. The appellant-Insurance Company has assailed this award dated 1.4.2003. Mr. Lalit Sharma has strenuously argued that deceased Raghu Nath was not in possession of valid driving licence. He has also contended that since the income of more than Rs.5,000/- has been mentioned in the claim petition, the petition under Section 163-A was not maintainable and the claimants should have preferred the petition under Section 166 of the Motor Vehicles Act, 1988. Mr. Bimal Gupta, appearing on behalf of respondents No.1 to 5 has supported the award - 3 - dated 1.4.2003. Ms. Jyotsna Rewal Dua has also supported the award. Mr. Neel Kamal Sood, appearing on behalf of respondents No.7(a), (b) and (d) has submitted that the accident was caused due to rash and negligent driving of deceased and Shri Sohan Singh was not responsible for causing the accident. Mr. H.S. Rawat, appearing on behalf of respondent No.8 has also adopted the arguments advanced by Mr. Neel Kamal Sood. I have heard the learned counsel for the parties and gone through the records carefully. Mr. Lalit Sharma has vehemently argued that deceased Raghu Nath was not in possession of valid driving licence. The learned M.A.C.T. has framed the following issue:- 1. Whether Raghunath was not having valid driving licence at the time of the accident, if so, its effect? ….. OPR-1. The appellant has not brought any evidence on record to establish that deceased Raghunath was not having a valid driving licence. It has come in the reply filed by the owner of tanker that the deceased was in possession of a valid driving licence. It is now well settled that it is for the Insurance Company to prove the breach of terms and conditions of the policy. Their Lordships of the Hon’ble Supreme Court have held in Narchinva V. Kamat and another, etc. v. Alfredo Antonio Deo Martins and others, AIR 1985 SC 1281 as under:- “To sum up the insurance company failed to prove that there was a breach of the term of the contract of insurance as evidenced by the policy of insurance on the ground that the driver who was driving the vehicle at the relevant time did not have a valid driving licence. Once the insurance company failed to prove that aspect, its liability under the - 4 - contract of insurance remains intact and unhampered and it was bound to satisfy the award under the comprehensive policy of insurance.” Mr. Lalit Sharma has also argued that the petition was not maintainable under Section 163-A of the Motor Vehicles Act. The Insurance Company has not raised this plea in the reply filed to the claim petition. This plea has been raised for the first time during the course of hearing of this appeal. It was necessary for the Insurance Company to raise this plea specifically in the reply filed to the claim petition and on that basis issue was also required to be framed. It is also clear from the grounds of appeal that the Insurance Company has not raised the plea of maintainability of the petition before the learned M.A.C.T. under Section 163-A of the Motor Vehicles Act, 1988. The only averment contained in the grounds of appeal is that the learned M.A.C.T. has mis- construed the provisions of Section 163-A of the Motor Vehicles Act. The factual aspect germane to the legal point raised by Mr. Lalit Sharma was conspicuously absent in the written statement. There is no opportunity for the claimants to challenge the factual aspect as to whether the claim petition was maintainable or not in the present form. It is settled law that no evidence can be looked into upon a plea which has not been raised before trial Court. The appellant, as discussed above, has not taken the plea as canvassed before this Court with regard to the maintainability of the petition before the learned Motor Accident Claims Tribunal under Section 163-A of the Motor Vehicles Act, 1988. However, it was open to the appellant to file appropriate application under Order 41, Rule 2 of the Code of Civil Procedure, 1908. Admittedly, the Company has not filed any application under Order 41 Rule 2 of the Code of Civil Procedure and the appellant is now precluded - 5 - from taking new plea of non-maintainability of the petition before the M.A.C.T. at the time of hearing of this appeal. Accordingly, there is no merit in the appeal and the same is dismissed. The award dated 1.4.2003 passed by the learned Motor Accidents Claims Tribunal-I, Sirmaur district at Nahan is up-held. No costs. August 14, 2008. (Rajiv Sharma), (sck) Judge.