IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.34 of 2003 THE ORIENRAL INSURANCE COMPANY LTD. THROUGH SRI VIKAS SINHA, DY. MANAGER-CUM-DULY CONSTITUTED ATTORNEY REGIONALOFFICE PIR MOHANI, KADAM KUAN, PATNA 800001 .. APPELLANT Versus 1. ASHA DEVI, W/O LATE RAM RATAN RAI 2. SUNIL KUMAR, S/O LATE RAM RATAN RAI 3. RINA KUMARI, D/O LATE RAM RATAN RAI, ALL RESIDENTS OF VILLAGE SHERPUR BALWA, P.S. WARISALIGANJ, DISTRICT NAWADAH 4. MAHENDRA MISTRI, S/O MANT LAL MISTRI, P.S. NAUGACHHIYA, DISTRICT BHAGALPUR .. RESPONDENTS **** /9/ 9 August 2010 Heard the learned counsel for the parties. 2. This Miscellaneous Appeal is directed against the order, dated 09th October, 2002, passed by the Additional District Judge II-cum-Motor Vehicles Claims Tribunal, Nawadah, in Claim Case No. 77 of 1999/13 of 2002 by which he has granted the claim to the claimants, respondents 1, 2, 3 and 4, to the tune of Rs.1,24,500/- with interest at the rate of 9 per cent per annum from the date of application till the date of payment. 3. The case of the claimants is that the deceased, Ram Ratan Rai, died in an accident by truck bearing 2 registration no. BR-10H-8151 while he was returning after meeting the call of nature. The claimants are the wife and his two children. The learned counsel for the appellant, however, submits that the claim petition was filed mentioning the petition under Section 163A of the Motor Vehicles Act and contends that the application ought to have filed under section 166 of the Motor Vehicles Act and petition under Section 163A of the Motor Vehicle Act is for no fault accident claim, but, since the deceased was run over by the vehicle and, hence, it is a case of accident, hence, petition for no fault liability is not maintainable. 4. However, merely mentioning the wrong section in the petition will not disclaim the claimants from claiming the compensation on the death of the deceased. 5. The learned counsel for the appellant, further, contends that the vehicle was not insured and has submitted that though the cover note issued for insuring the vehicle, but, the cheque given by the owner has bounced back prior to the date of occurrence. 6. However, from perusal of the record, itself, it is apparent that no such plea was taken by the insurance 3 company in the written statement and the learned counsel for the insurance company doubted that it is not in the written statement. However, even having regard to the fact when the point was not taken in the written statement and nothing was brought on record regarding this fact is not permitted to be taken in appeal and the insurance policy on record can well be held that the vehicle was insured, however, even the cheque bounced and if the same was not cancelled and not communicated to the owner, the insurance company, is liable for a third party liability regarding the liability of the claimant who has claimed compensation in view of the death. However, the insurance company may pursue it’s remedy by filing a separate case for realization of the amount paid in compensation if the policy ha been cancelled for the reason of bouncing of the cheque, but, the third party can not be dragged in litigation between the insured and the insurer. 7. The third point has been raised that the driving licence has not been brought on record, however, it is well settled that it is the insurer, if claims, that there is any breach of contract then the onus lies on him to prove that the 4 vehicle being driven by a person who has no licence merely because the licence has not brought on record, he can not claim and discharge from the liability. 8. Hence, having regard to the fact, I do not find any merit in the appeal. The insurance company is directed to pay the amount with interest. The learned counsel for the appellant, however, contends that Rs.25,000/- deposited in High Court at the time of filing of the appeal be sent down and the said may be directed to be received by the claimants on verification. 9. With these observations and directions, this application is dismissed. Cp:2/S.A. ( Gopal Prasad, J. )