Amitava Lala, J. - (1.) THIS appeal has been filed by the insurance company being aggrieved and/or dissatisfied with the judgment and order dated 31.1.2008 passed by the concerned Motor Accident Claims Tribunal, Etawah awarding compensation of Rs. 1,94,200/ - along with the interest at the rate of 7% interest per annum to be paid to the claimant on account of death of the deceased. The application under section 170 of the Motor Vehicles Act, 1988 filed by the insurance company before the Tribunal to contest the claim petition has been rejected by the Tribunal. In spite of the same, the appellant did not make any application under Article 227 of the Constitution of India, if at all aggrieved by such order. In this context reference has been made by learned Counsel for the respondent in National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and others : AIR 2002 SC 3350 followed by Division Bench judgment of this Court in Oriental Insurance Co. Ltd. v. Smt. Manju and others : 2007 (67) ALR 718.
(2.) BY preferring this appeal, the insurance company contended before this Court that in spite of rejection of such application he is entitled to prefer the appeal. There is a clear violation of the conditions of the insurance policy in running the vehicle by the driver. The driving licence is allowed to ply Light Motor Vehicle (Pvt.). The insurance company has cited judgment of the Supreme Court before the Tribunal as well as before this Court in National Insurance Co. Ltd. v. Kusum Rai and others, : 2006 (63) ALR 817 (SC) : : 2006 (41) AIC 108 (SC) to establish that the driver not having valid driving licence as per section 2(35) of the Motor Vehicles Act cannot drive the vehicle i.e., Jeep Taxi for commercial purpose. The Tribunal held that the insurance company failed to produce the original policy before the Tribunal and as such burden of proving the case cannot be shifted to the owner.
(3.) KUSUM Rai and others (supra) is also cited before this Court to establish that in the said judgment section 3 was considered in addition to sections 2(30) and 2(35) of Motor Vehicles Act as far as necessity of direct licence. Therefore, the Tribunal should have proceeded on the basis of such ratio of the judgment.;