Ram Krishna Gautam, J. - (1.) This Appeal u/s 173 of the Motor Vehicle Act, 1988 has been filed by Branch Manager, National Insurance Co. Ltd. against Mahraj Singh and Smt. Kstoori Devi, claimants-respondents, M/s Kumar Enterprises (owner of offending vehicle HR 38A 7232) and Baldev Singh (driver of the offending vehicle) against the judgment and award dated 1.5.2001 passed by the M.A.C.T./ Additional District Judge, Mathura, in M.A.C.P. No. 15 of 1999, Mahraj Singh and another Vs. M/s Kumar Enterprises and others, on the ground that the Tribunal failed to appreciate the facts and law placed before it. The finding of the Tribunal that the driver of the vehicle involved in the accident had valid driving license at the time of the accident was not substantiated by the evidence on record, hence the liability of the Insurance Company was erroneously fixed because the driver was not with valid driving license and it was proved by the witnesses- DW1, an employee of R.T.O. office, Bulandshahar, by his oral testimony that the above driving license was not in the name of the driver given by the claimants. The Insurance Company discharged its burden by establishing this fact that the driver of the offending vehicle did not possess valid and effective driving license at the time of the accident and even then the Tribunal has imposed liability upon the Insurance Company. The amount of earning and the dependency have been based on conjectures and surmises, hence this appeal for setting aside the impugned Award.
(2.) Heard learned counsel for the appellant and learned counsel for the claimants. None appeared for owner-respondent even before the Tribunal or before this Appellate court.
(3.) From the very perusal of the record it is apparent that a claim petition was filed before the M.A.C.T., Mathura, as M.A.C.P. No. 15 of 1999, Mahraj Singh and another Vs. M/s Kumar Enterprises, through its proprietor Pankaj Varshney, its driver Baldev Singh and National Insurance Co. Ltd. with this contention that on 27.12.1998 the deceased Satbir Singh by his Truck bearing Registration No. MP 06/6861 was on his way to Mathura Refinery from Aligarh. When he halted his Truck in Aurangabad near a wine shop for attending defect in his aforesaid Truck and when he came down on the road a Truck bearing Registration No. HR 38A/7232 being driven rashly and negligently dashed Satbir Singh, who instantaneously died on the spot. FIR of the accident was lodged by Jaipal Singh, brother of the deceased, which was registered as Case Crime No. 263 of 1998, u/s 279, 304A I.P.C. at Police Station Sadar Bazar, Mathura, the deceased was aged about 25 years and was a trained driver earning Rs. 3000/- per month and was maintaining his parents-claimants, hence the claim petition in the form of claim of Rs.9,10,000/- was prayed. Owner of offending vehicle as well as its driver did not file written statement even after sufficient service of notice nor appeared before the Tribunal hence vide order dated 24.4.1999 the Tribunal proceeded exparte against them whereas the Insurance Company filed its written statement (Paper No. 15 Ka) denying its liability till it is proved that the offending vehicle was being driven rashly and negligently by the driver and the driver had valid and effective license at the time of the accident. The defiance of the terms of the Policy was pleaded. Issues were framed by the Tribunal and documentary as well as oral evidence were brought on record, then after the impugned judgment and award was made.;