IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.245 of 2005 NEW INDIA ASSURANCE CO.LTD. through Shri Bhaskar Mallik, Duly constituted Attorney, for and on behalf of the New India Assurance Company Ltd. VIth and VII th Floor, B.S.F.C., Building Fraser Road, Patna -------------------- Appellant. Versus 1. SURATIYA DEVI, W/o Deo Lal Sah. 2. Deo Lal Sah, S/O Late Bhola Sah Both R/o Village-Kalyanpur, P.S. Kalyanpur, District-East Champaran, A/P Mohalla + P.O.-Bairiya, P.S. Kanti, Distt- Muzaffarpur ---- Respondent ( Claimant) 3. Shambhu Chaudhary, S/o R.S. Chaudhary, ( Driver of the Vehicle) R/o Village-Lallpur Chauk, Ranchi. 4. Kanail Singh , S/o Sardar Charan Singh, C/o Bhargav Saw, Mills, Mithapur, P.S. Mithapur, District-Patna ( Owner of the Vehicle). ------- Respondents ( Opp.Parties.) ----------- 11 30-03-2009 The New India Assurance Co.Ltd. has preferred this appeal under Section 173 of the Motor Vehicles Act against the Judgment dated 26.2.2005 and Award dated 28.2.2005 passed in Claim Case No.106 of 2006 by Sri Govind Prasad Srivastava, the then 7th Additional District Judge –cum- Motor Accident Claims Tribunal, Muzaffarpur, awarding compensation to the claimant . It appears that Suratiya Devi and Deo Lal Sah, the unfortunate parents of deceased Madan Kumar Sah who died in an accident taking place on 8.5.2000, whereby he was crushed to death under the wheels of a truck bearing Registration No.BR-1G-3956 had claimed compensation to the tune of Rs.5 Lacs under Section 166 of the Motor Vehicles Act. The learned Claims Tribunal having considered the materials available on record by the aforesaid Judgment and Award - 2 - directed Opp.Party no.3, the Assurance Company to pay a sum of Rs.1.72 Lacs to the claimant by way of compensation after deducting a sum of Rs.50, 000/- which had already been paid to the claimant by way of “no fault liability” under Section 140 of the Motor Vehicles Act. It further appears that the Assurance Company had filed a written statement taking the specific plea that the driver of the killer truck was not possessed with a valid driving licence and in that view of the matter the Assurance Company, was under the provisions of the Insurance Act, not liable to pay any compensation to the claimant and to the contrary it was for the driver and owner of the killer truck to pay the compensation. The specific plea raised by the Assurance Company of the driver not holding a valid licence was never sought to be pressed by the Assurance Company since no issue in that regard was framed by the Claims Tribunal nor was any question put to the claimant’s witnesses by the Assurance Company in this regard. The Assurance Company also did not think it necessary to prove its specific plea by adducing evidence, whether oral or documentary. In the instant appeal, the Assurance Company has reiterated its unproved specific plea. It was sought to be submitted by the learned counsel for the appellant that the plea had been taken in the written statement filed before the Claims Tribunal and on that basis the Claims Tribunal was duty bound to give a finding on that issue. I am unable to accept the desperate plea raised by the learned counsel. It is not the law that merely because a plea has been - 3 - taken in the written statement the court was bound to accept that plea without the same being proved by the cogent evidence, whether oral or documentary or an issue being framed in that regard. The appellant herein not having proved the specific case legally cannot now raise the same plea for maintaining this appeal. Non-framing or non-proving of a plea can never be an issue of law which can be raised at any point of time. In the instant case, the plea raised by the Assurance Company is a question of disputed fact which was required to be proved by leading evidence as laid down in the Evidence Act and the procedural laws. For the reasons discussed in the foregoing paragraphs I do not see any apparent and plausible reason to interfere with the Judgment and Award of the learned Claims Tribunal. The appeal accordingly stands dismissed. The security money which had been deposited in this Court shall go the claimant since full amount of compensation awarded to them has not been paid till today only because the Assurance Company preferred this appeal way back on 24.6.2006. NKS/- ( Abhijit Sinha, J )