U.K.DHAON,NARAYAN SHUKLA JJ - (1.) . 1. The instant first appeal from order under Section 173 of the Motor Vehicles Act, 1988 arises from the judgment and award dated 2.3.2002, passed by the V. Ist Additional District Judge/Motor Accident Claims Tribunal, Lucknow in Claim Petition No. 204 of 1993 by which a compensation of Rs. 3,36,400 was awarded to the claimant -Respondents alongwith interest at the rate of 8% per annum from the date of filing of the claim petition till the date of payment.
(2.) THE brief facts of the case are that on 10.5.1993 at about 6.30 p.m., Sri Kunwar Singh who was on his bicycle was hit from behind by the offending vehicle No. M.P. -19 -6486 (oil tanker) and on account of serious injuries sustained in the accident, he expired at the Command Hospital, Lucknow. The deceased at the time of accident was 29 years of age who was working in 15 Garhwal Rifle, Lucknow on the post of Rifleman and was getting a salary of Rs. 2,754 per month. The claim petition was filed by the widow of the deceased and sons, claiming a sum of Rs. 13,99,003.60 as compensation which was contested by the Appellant by filing the written statement. The written statement was also filed by Respondent No. 4 denying the allegations of the claim petition and it was stated that vehicle No. M.P. -19 -6486 is insured with the United India Insurance Co. Ltd. Branch Hazratganj, Lucknow and the driver of the vehicle was having a valid driving licence at the time of the accident. The parties to the claim petition filed oral and documentary evidence. The Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) after considering the material on record awarded a compenation of Rs. 3,36,400 to the claimant - Respondents and directed the Appellant to pay the compensation alongwith interest at the rate of 8% per annum. The Appellant being aggrieved by the impugned judgment and award dated 2.3.2002 has filed the instant first appeal from order. Sri R. C. Sharma, learned Counsel for the Appellant submits that the driver of the offending vehicle Kashi Ram was not having a valid driving licence at the time of accident. He further submits that Claim Petition No. 204 of 1993 was decided by the then V. Ith Additional District Judge/ Motor Accident Claims Tribunal, Lucknow vide judgment and award dated 4.8.1995 and it was held that the driver of the offending vehicle was not having a valid driving licence at the time of the accident and the Appellant was exonerated from the liability to pay the compensation and the owner of the vehicle was made liable to pay the compensation of Rs. 2,50,000 which judgment and award was set aside in 2001 on an application moved under Order IX, Rule 13, Code of Code of Civil Procedure and on the basis of the same evidence, the learned Tribunal has reversed the finding about the driving licence and also enhanced the amount of compenation. He further submits that the driving licence of the driver Kashi Ram was not renewed for the period 3.10.1991 to 20.8.1993 by the licensing authority and on the date of accident, i.e., 10.5.1993 the driver Kashi Ram was not having a valid driving licence and as such the Tribunal has wrongly directed the Appellant to pay the compensation to the claimant -Respondents. Learned Counsel for the Appellant has relied upon the decisions of the Hon 'ble Supreme Court in the cases of National Insurance Co. Ltd. V. Kusum Rai and Ors. 2006 (2) TAC 1: 2006 (2) AWC 1918 (SC)and Ishwar Chandra and Ors. V. Oriental Insurance Co. Ltd. and Ors. 2007 (2) TAC 393 (SC).
(3.) SRI Vidyadhar Upadhyaya, learned Counsel for the Respondent No. 4 submits that there is no illegality in the impugned judgment and award passed by the Motor Accident Claims Tribunal, Lucknow and the appeal of the Appellant is devoid of merits, which deserves to be dismissed. He further submits that the Tribunal after considering the material on record has rightly given the finding on issue No. 8 that the insurance company has not adduced any evidence that the driver Kashi Ram was incompetent to drive the vehicle during the period 2.10.1991 to 21.8.1993. He further submits that the Tribunal has rightly held that if the driving licence was not valid for some time the driver cannot be said to be incompetent to drive the vehicle. Learned Counsel for the Respondent No. 4 has relied upon the decisions of the Hon 'ble Supreme Court in the cases of National Insurance Co. Ltd. V. Swaran Singh and Ors. 2004 (I) ACJ 1: 2004 (2) AWC 1589 (SC) and Mahamooda and Ors. V. United India Insurance Co. Ltd. and Ors. 2006 ACJ 2825.;