K. Kannan, J. - (1.) BOTH the appeals are connected. FAO No. 3233 of 1996 is at the instance of the insurance company and FAO No. 1372 of 1997 is by the claimants seeking for enhancement of claim.
(2.) THE grievance expressed on behalf of the insurance company is that in a case where the insurer was contending that driving licence was not genuine and when it was seeking for permission of the Court to examine the Licencing Authority on commission, the Court upheld the objection of the claimants that there was no scope for examining any witness on commission. Counsel appearing on behalf of the Respondents -owner contends that when a prayer for appointment of Commissioner was made for securing evidence from the Licencing Authority and when it was dismissed by the Tribunal, the insurance company did not challenge the same by any revision and the correctness of the decision cannot be challenged now before this Court in appeal. This contention is not tenable, for the powers of the appellate Court extends also to examine the correctness of any interim order and the fact that a party affected by the interim order did not challenge the same cannot take away the powers of the Court to examine the correctness of the interim orders. The argument on the contrary made by the counsel for the Respondent -owners is untenable and I reject the same.
(3.) A defence relating to the validity of the insurance or driving particulars are protected under Section 149 of the Motor Vehicles Act as permissible defences and if that was denied, the insurance company was entitled to urge that appropriate opportunity must be given to establish its defence. I will accord to the insurer such entitlement and will afford to the insurance company the opportunity to prove its defence. However, even if the licence had not been established to be genuine, the liability of the insurance company to make the payment is surely rooted in law by the decision of the Hon'ble Supreme Court in New India Assurance Company v. Kamla, : (2001) 4 SCC 342. Learned Counsel for the claimants argues that till date no amount has been paid and the award had been stayed by this Court. The stay shall stand vacated forthwith and the claimants shall be entitled to recover the amount from the insurance company. The actual determination of the amount payable will be the subject of discussion in the appeal in FAO No. 1372 of 1997.;