I.S.ISRANI, J. - (1.) THIS is a Miscellaneous Appeal under Section 110 -D of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') against the award dated July 30, 1984 passed by the Motor Accidents claims Tribunal, Jaipur in claim case No. 175 of 1977.
(2.) RESPONDENT No. 1 Chotu filed a claim petition before the Motor Accidents claims Tribunal, Jaipur for an amount of Rs. 18,500/ - against the appellant and respondent Nos. 2 to 6 alleging therein that while crossing the road near Collect orate in Bani Park, Jaipur on November 19, 1975, he was hit by scooter No. RRN 9094, which was driven by the appellant. It was also stated in the petition that the respondent Nos. 2, 3 and 4 were the owners of the said scooter, which was insured with the respondent No. 5, the Oriental Fire and General Ins. Co. The claimant sustained serious injuries including fracture in the leg as alleged by him. The Tribunal awarded an amount of Rs. 10,000/ - against the appellant alone who was -driving the scooter at the time when the accident took place. The contention of Mr. G.C. Mathur, learned Counsel for the appellant, is that the trial court has seriously erred in giving a finding that it was not proved that the scooter involved in the accident was owned by late M.P. Sarthi and respondent No. 3, his son. It is also stated by the learned Counsel that the respondent No. 5, the insurance company, is also liable for payment of compensation and the trial court has erred in not holding it liable. It is pointed out by the learned Counsel that AW 1 Chotu in his statement has clearly stated that M.P. Sarthi was the owner of the scooter involved in the accident. NAW -1 Ramesh appellant has also stated in his statement that M P. Sarthi was the owner. He has further stated that he saw while passing that the scooter of Mr. Sarthi punctured. Mr. Sarthi gave him the scooter for repair and after repairs he was bringing the scooter when this accident took place. It is, therefore, contended by the learned Counsel that the appellant was driving the scooter under the permission and instructions of Mr. Sarthi, the owner of the scooter, who, therefore, is vicariously liable for the liability arising out of the said accident. It is further contended by the learned Counsel that the claimant had given particulars of insurance cover note, which also shows that the scooter was owned by Mr. Sarthi. It is pointed out that the insurance cover note, to which a reference was made by the claimant, shows that the scooter stood covered and insured from 7 -4 -1976 to 6 -4 -1977, i.e., the period after the date the accident took place. It is, however, contended that it is the duty of the insurance company to have come out with a clear statement whether the present policy was renewed from the insurance policy by which the scooter was insured in the previous year and whether the scooter was not insured with the insurance company. It is, therefore, urged that the insurance company has deliberately not given the required details and therefore, should be held responsible for liability of the amount of award given to the claimant.
(3.) MR . S.C. Srivastava, learned Counsel appearing for respondent No. 5, the insurance company, contends that insurance company has come with clean hands and produced the policy to which a reference was made by the claimant. The policy has been produced in the trial court, which shows that the scooter was covered from April 7,1976 to April 6, 1977. Since the accident took place on November 19, 1975, evidently the insurance company cannot be held liable for compensation regarding any award, which may be passed on account of accident which arose earlier than the policy was issued. His further contention is that no such plea was raised in the trial court as is now raised on behalf of the appellant against the insurance company of not disclosing any facts as alleged by the appellant during the course of arguments. It is contended that a vehicle can be insured anywhere in India and it becomes impossible for the insurance company to find out on its own whether a particular vehicle is insured with it on a particular date. It is further contended that even if such pleas were taken in the trial court, efforts might have been made to see whether the scooter was insured with the insurance company on the relevant date, but since no such point was raised, now at the appellate stage the Insurance company cannot be held guilty to have suppressed any facts, which it was not called upon to have stated before the Tribunal.;