FAO No. 607 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 607 of 2010 (O&M) Date of decision: 10.02.2010 ICICI Lombard General Insurance Company Limited ....Appellant Versus Harbool and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Subhash Goyal, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) CM No. 3381-CII of 2010 For the reasons stated in the application, CM is allowed and the delay of 09 days in filing the appeal is condoned. FAO No. 607 of 2010 This appeal, by the Insurance Company, is directed against the award dated 13.08.2009, passed by the learned Motor Accident Claims Tribunal, Faridabad, allowing the petition moved by the claimant- respondents, under Section 166 read with Section 140 of the Motor Vehicles Act, 1988. The compensation claimed by the claimants, on account of motor vehicular accident, was challenged by the appellant-Insurance Company on the following grounds: - “Respondent No.3, the insurer, has contested the petition. It was averred that the answering respondent had cancelled the insurance cover note of the offending FAO No. 607 of 2010 (O&M) -2- vehicle on some technical point. Respondent No.3 has further contested the claim petition inter alia on the grounds that respondents No.1 and 2 have colluded with the claimants; that the alleged accident had not occurred and if at all the accident had taken place, it might had been caused due to negligence of some unknown vehicle; that the petitioners have concocted and exaggerated the facts to inflate the amount of compensation; that the contents of alleged FIR were false and frivolous and that the claimants are not entitled to compensation.” On the pleadings and the objections raised by the appellant, the learned Tribunal framed the following two issues, besides others: - “3. Whether the petitions are not maintainable? OPR 4. Whether the petition has been filed in collusion with respondents No.1 and 2? OPR.” The appellant did not contest these issues and in view of the stand taken, the learned Tribunal recorded the following findings: - The finding recorded by the learned Tribunal reads as under: - “Onus to prove these issues was on the respondents. Neither any evidence was led nor these issues were pressed during the course of arguments. Even otherwise, in view of discussion on issues No.1 and 2, present petition is well maintained and there is no collusion between the claimants and respondents No.1 and 2. These issues are decided against the respondents.” Learned counsel for the appellant vehemently contends, that the Tribunal failed to take notice of the fact that the driver of the offending vehicle was not authorised to drive a tanker, as his licence was only to drive motorcycle and a motor car. Therefore, the award deserves FAO No. 607 of 2010 (O&M) -3- to be set aside. On consideration, I find no force in the contention raised by the learned counsel for the appellant. The reading of the award would show that the appellant did not contest issues No.3 and 4 regarding maintainability of the claim petition against insurance nor the points raised in pleadings were pressed before the learned Tribunal. It is not open to the Insurance Company for the first time to raise a new plea in the appeal for the first time. The amount of Rs.25,000/- (Rupees twenty five thousand only) deposited by the appellant in this Court, is directed to be transmitted to the learned Executing Court for payment to the claimants. No merit. Dismissed. (Vinod K. Sharma) Judge February 10, 2010 R.S.