F.A.O.NO. 3871 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 3871 of 2008 Date of decision:5th August, 2010 The New India Assurance Company Limited .......Appellant Versus Bholi Devi and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. R.K.Bashamboo, Advocate, for the appellant. Mr. Umesh Kumar, Advocate, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurer is in appeal denying the liability on the ground that the tractor had been parked with a punctured tyre when the scooterist hit the tractor from behind and died. The contention was that the tractor had a trolley which showed a commercial use of the tractor where as the policy had been taken under “miscellaneous and special type of vehicles Policy B package”. According to the insurer, there had been violation of the terms of the permit and therefore, the insurer shall not be liable. 2. The Insurance Company also takes up a plea that F.A.O.NO. 3871 of 2008 2 there was no valid insurance for the trolley but an insurance cover was available only for the tractor. I find that these defences have not been taken at the trial by specific pleas to put the owner of the tractor on guard or give him an opportunity to counter these allegations. The restriction of limitation of use spelt out in policy filed in Court, covers the use of the vehicle under a permit falling under Section 66(3) of the Motor Vehicles Act. The scooterist was a third party to the vehicle and in a claim made by the representative of the scooterist, it shall not avail to the insurer to contend that there was a violation of the permit unless the purpose of the permit had been violated and the claim was on account of an act of the person, for whose death the claim was lodged. Indeed I find even such a contention is not possible for lack of adequate pleading in that regard. The liability cast on the insurer is therefore, justified. I uphold the award and dismiss the appeal. [K.KANNAN] JUDGE 5th August, 2010 Shivani Kaushik