F.A.O. No. 456 of 2010 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH F.A.O. No. 456 of 2010 (O&M) Date of Decision : 9.2.2010 Bajaj Allianz General Insurance Co. Ltd. .......... Appellant Versus Smt. Seema Devi & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. P.M. Goyal, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 2797-CII of 2010 For the reasons stated in the application, C.M. is allowed, delay of 30 days in filing the appeal is condoned. F.A.O. No. 456 of 2010 & C.M. No. 2798-CII of 2010 This appeal by the Insurance Company is directed against the award dated 21.7.2009, passed by the learned Motor Accident Claims Tribunal, Narnaul (hereinafter referred to as “the Tribunal”), vide which the claim petition filed by the claimants under Section 166 of the Motor vehicles Act, 1988 (hereinafter referred to as “the Act”), stands allowed. The Insurance Company denied its liability to pay the compensation, on the ground, that the Driver of the offending vehicle did not have a valid and effective driving licence. The stand taken by the Insurance Company has been noticed by the learned Tribunal as under :- F.A.O. No. 456 of 2010 2 “4. Respondent No.3 filed his separate written statement and denied the accident in question. It is further alleged that the vehicle in question was not being driven in accordance with the terms and conditions of the policy of insurance. It is also alleged that respondent No.1, driver of vehicle in question, was not holding a valid and effective driving licence on the date of alleged accident.” The appellant did not lead any evidence in support of this stand. As on issue No.4, no evidence was led and accordingly the issue was decided against the Insurance company by recording the following finding :- “Ex. PW7/B is the photocopy of driving licence of Hawa Singh i.e. respondent No.1 ( driver of offending vehicle) and the same is valid from 11.5.2006 to 10.5.2009. The accident took place on 15.11.2007. There is no evidence on behalf of respondent no.3 that the said licence is invalid or fake. Hence, respondent no.1 was having a valid and effective driving licence at the time of accident. This issue is decided accordingly.” The learned counsel for the appellant contends, that the the learned Tribunal has wrongly fastened the liability of the Insurance Company by ignoring the fact, that the deceased was a gratuitous passenger in a loading vehicle, therefore, the Insurance company was not liable to indemnify the insured. It is also the contention of the learned counsel for the appellant, F.A.O. No. 456 of 2010 3 that the vehicle was having only one seat, therefore, there was no seat / place for the passenger. This plea of the learned counsel for the appellant, deserves to be noticed to be rejected, for the reason, that except for raising this argument there was no pleading or prove this assertion. As already mentioned above, only ground taken to deny the liability of the insurance Company was that the Driver of the offending vehicle was not holding valid driving licence. The appellant cannot be allowed to raise this plea in appeal herein which was not pleaded or proved before the learned Tribunal. No merit. Dismissed. 9.2.2010 ( VINOD K. SHARMA ) 'sp' JUDGE