Decided on November 22,1985

Bhagabat Kundu Appellant
Debidutta Agarwalla Respondents


LAHIRI, J. - (1.)THE main question involved in the appeal under Section 110D of the Motor Vehicles Act, 1939, for short 'the Act', is the limit of the liability of an insurer under Section 95 read with Section 110B of the Act. The question has been posed by the appellant, owner of the vehicle involved in the accident. The claimant -respondent No. 1 has prayed for interest by way of a cross -objection.
(2.)ON December 19, 1973, Srimati Bhagabani Devi Agarwalla died in a motor accident for which truck No. ASZ 7746 owned by the appellant was solely and primarily responsible. The death occurred due to negligent driving of the truck driver. There is no wrangle at the bar that the truck was a ' goods vehicle ', within the meaning of Section 2(8) of the Act and it was carrying some boxes at the relevant time. The policy of insurance also shows that it is a 'goods vehicle'. Smt. Bhagabani died in ghastly and appalling circumstances. Her husband, as claimant, instituted a case claiming compensation under the Act against the owner -appellant, and the ' insurer ' respondent No. 2. Notices of the claim were served on the parties including the insurance company. No objection was filed by respondent No. 2. The owner -appellant raised certain objections as to the maintainability of the claim petition, the entitlement to compensation as well as the liability of the owner to pay the amount. The owner also took up the plea that the claim amount of Rs. 1 lakh was too high. Witnesses were examined by the contesting parties and documents were also filed. Learned District Judge -cum -Member, Motor Accidents Claims Tribunal, for short 'the Tribunal' awarded Rs. 32,000 as compensation to the claimant but apportioned the compensation thus :
'Out of this amount, the insurance company is to pay Rs. 20,000 and the remaining amount of Rs. 12,000 is to be paid by Shri Bhagabat Kundu, the owner of the truck at fault '

Mr. A.K. Bhattacharya, learned counsel appearing for the appellant -owner, has raised the sole contention that 'the insurer' was statutorily liable to pay the entire compensation of Rs. 32,000 awarded by the the Tribunal in terms of the policy of insurance covering such accidents and the Tribunal has gone wrong in prorating the compensation against the owner. The policy, coupled with the provisions of Section 95, make the insurer liable to pay the awarded amount which is far below the outer limit of liability of the insurer which has been statutorily fixed at Rs. 50,000. Mr. P. G. Barua, learned counsel for respondent No. 2, the insurer, faintly argues that the driver of the vehicle was not a licensed driver and accordingly respondent No. 1 was not liable to indemnify the insured. Secondly, Mr. Barua contends that the apportionment made by the Tribunal was just, proper and legal.

(3.)LET us proceed to consider the first contention. Mr. P. G. Barua, learned counsel, submits that the award is invalid as the defaulting driver had no valid driving licence and, therefore, under the terms of the policy, the insurer was not liable to pay any compensation and/or liable to satisfy the judgment -debt of the insured. We find the contention to be untenable. First, the insurer got the notice of the claim but did not appear and contest the claim in any form whatsoever. Secondly, there is no cross -objection filed by the insurer against the award or any part thereof. Thirdly, the point is taken at the hearing without filing any memorandum of appeal or petition. In our opinion, the insurer is not entitled to raise the objection before this court, under these circumstances. It is a case of disclaimer and relinquishment of their right to contest in the proceedings. Further, the rule of estoppel bars the entertainment of the plea. In the absence of a reasonable cause like non -receipt of notice of the claim case or some such cause, the party cannot be heard on the question for the first time after a lapse of over 11 years. Further, turning to the certificate of insurance marked annexure A, which forms part of the paper book, we find that 'any person holding a licence to drive a vehicle or had held and was not disqualified for holding or obtaining such a licence, could drive the vehicle in question.' There is no material to show that the driver had no licence to drive such a vehicle nor is there any material to show that he was not qualified for holding or obtaining a licence. The other limitations for the use of the vehicle are two -fold : First, that the vehicle could be used only under a public carrier's permit granted under ' the Act ' and, secondly, it could not be used for organised racing or speed testing. There is no complaint about any breach of the conditions. There is no material to show that the driver did not hold any licence. Mr. Bhattacharya, learned counsel for the owner, submits that the driver had a valid licence and if challenged, the owner would have produced it. Mr. P. G. Barua merely shows a police report in the connected criminal case where it was alleged that the driver of the vehicle had no driving licence. However, it is merely an allegation and there is no material in support of the allegation made in the police report. In any view of the matter, there is no allegation or proof that the driver was 'disqualified for holding or obtaining a motor vehicle licence or had never held any driving licence'. Under these circumstances, the contention must be rejected. Further, in terms of the award, the insurance company has already paid Rs. 20,000 as directed by the Tribunal. There is no appeal nor even a cross -objection filed by the insurer -respondent No. 2. Situated thus, we hold that the plea cannot now be allowed to be raised in the appeal. We further hold that the insurer cannot repudiate its liability under the policy on the available materials. The contention fails.

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