P.C.JAIN, J. - (1.) THIS is an appeal under Section 110D of the Motor Vehicles Act, 1939, against the judgment and award dated February 5, 1981, passed by the Motor Accidents Claims Tribunal, Bikaner, in Case No. 7 of 1978 dismissing the claim of the appellants against respondent No. 2, National Insurance Company, and decreeing a claim of the appellant to the extent of Rs, 42,300 against respondents Nos. 1 and 3.
(2.) THE facts of the case are that on April 17, 1976, an accident took place causing the death of Shri Raj Dev Singh. The accident was caused by Lila Ram, who was the driver of tractor RJK 651/T. This tractor was owned by Ghisa Ram. In the accident, Raj Dev Singh died on April 18, 1976, in the hospital. The claimants are the widow of the deceased, Raj Dev Singh, and his minor children. The insurer of the tractor was National Insurance Company Ltd., which is respondent No. 2 in this case. In the case, there is no dispute about the accident and about the amount of compensation awarded to the petitioner. Neither the owner nor the driver or the insurance company has filed any appeal against the award. It is a fact that the Claims Tribunal dismissed the claim petition against respondent No. 2, the insurer of the vehicle. Shri Rajendra Mehta, learned counsel for the appellant, has submitted that the Tribunal has committed a serious error of law in holding that the driver of the vehicle was not holding a driving licence. He has also submitted that the insurance company did not take the plea that the insurer has committed a breach of the condition, exhibit A -4, and, as such, it was not liable to pay compensation in view of the provisions contained in Sub -clause (2) of Sub -section (2)(b) of Section 96 of the Motor Vehicles Act.
(3.) SHRI P.K. Bhansali, appearing on behalf of the insurance company, has seriously contested the submissions made by learned counsel for the appellant. He has submitted that the claimants themselves in para. No. 10 of the claims petition have specifically stated that the driver of the vehicle had no driving licence, and, in view of the admission of the petitioners themselves, the finding given by the Tribunal is perfectly justified and is not liable to be assailed.;