K. S. LODHA, J. - (1.) THIS misc. appeal has been filed by claimants Smt. Shakuntala and Raghunath Rai, mother and father respectively of the deceased Kuldeep who had died in a motor accident against the United India Insurance Company (hereinafter referred to as 'the Insurance Company') challenging the award of the Motor Accidents Claims Tribunal, Jodhpur (for short 'the Tribu-nal') dated 14,3. 83, whereby, while awarding compensation to the appellants against the owner and driver of the vehicle, their claim has been rejected against the Insurance Company. They now claim that the award may be made against the Insurance Company also.
(2.) IT is now not in dispute before me that Kuldeep son of the appellants, aged about 27 years, had died on account of a motor accident on March 31, 1979. The "motor vehicle, viz. three wheeler scooter, which belonged to Laxmi-narayan and which was being driven at the time of this accident by Champalal, had hit Kuldeep while he was going on the road towards Sojati Gate, Jodhpur on March 30, 1979 and that this accident was the result of rash driving of Champalal. Deceased Kuldeep was a Probationary Officer in the State Bank of India and was drawing Rs. 1460/- per month at the time when his life was, thus, cut short. The claimants being his mother and father respectively are entitled to compensation and after taking into account all the circumstances of the case, the Tribunal awarded a sum of Rs. 1,60,650/- to the claimants against Laxmi Narayan and Champalal owner and driver respectively of the aforesaid vehicle. However, the claim has been rejected so far as the Insurance Company is concerned. The question which falls to be decided in this appeal is whether the Insurance Company should also be held liable or riot. In order to appreciate the question posed above, a few facts may be stated here. In the claim petition filed by Smt. Shakuntala and Raghunath Rai, in para 9 (a), Champalal was stated to be the driver of the vehicle: viz, the three-wheeler No. RSQ 8525 and in para 9 (b), Laxmi Narayan was said to be the owner thereof. In para 9 (c), United India Insurance Co. , (the present respondent) was mentioned to be the insurer of the said vehicle. The policy number and the date of the insurance have been mentioned as No. 381911 dated 23. 5. 78. In reply to para 9, the non-petitioner no. 1, the owner of Laxmi Narayan, in para 2 of the reply, merely mentioned that para no. 8 and 9 of the claim petition do not call for any reply. He thereby impliedly admitted the averments made in para 9 of the claim petition. Non-petitioner no. 2, viz. Champalal (the driver) clearly admitted that the facts mentioned in para 9 (a) were admitted. The rest of the para was denied for want of knowledge The Insurance Company (non-petitioner no. 3) in its reply dated 7. 4. 80 in para 8 thereof, stated that so far as para 9 of the claim petition is concerned, Champa Lal was the driver of this vehicle and Laxminarayan was the owner thereof. It was further added that vehicle was not insured with non-petitioner no. 3. It will be relevant to note that the whole reply is typed one and the word Ugha* has been added in hand between the words Ikl chfer* and Djk j[kk gs*- It further appears that this reply of non-petitioner no. 3 was interpreted to be a reply in which the fact that the vehicle in question was insured with non-petitioner no. 3 at the relevant time. i. e. at the time of this accident, had not specifically been denied and was, therefore, taken to be impliedly admitted and that is why when issues were framed on 22. 10. 80, no issue was framed in this respect. The parties led their evidence. Claimant Raghunath Rai was examined on 21. 2. 81 and his three other witnesses were also examined on the same day. Thereafter, it appears that, while the case was pending for the claimants' evidence, an application was filed on behalf of non-petitioner no. 3 on 24. 4. 82 that non-petitioners no. 1 and 2 may be directed to produce the insurance policy and the certificate of insurance pertaining to the period 12. 5. 78 to 11. 5 79 along with the registration certificate of the three-wheeler No. RSQ 8525. It further appears that the certificate of insurance was filed on 19. 6. 80, but the other two documents were not filed. Then, an application was moved on behalf of non-petitioner no. 3. under O. VI, r, 17, C. P. C for permission to amend para 3 of their reply by adding the fact that the Vehicle No. RSQ 8525 was not insured with non-petitioner no, 3 and the fact that Policy No. 381911 dated 23. 5. 78 was issued by non-petitioner-no. 3 was wrong and further that no policy of this kind was ever used to be issued by non-petitioner no. 3. It was also added that Vehicle No, RSQ 8525 was not insured with non-petitioner no. 3 on the date of the said accident and, therefore, non-petitioner no. 3 was not liable for any claim. This application was opposed by the present claimants and, ultimately, the learned Member of the Tribunal rejected the application by order dated 26. 7. 82. Shri Anil Bhandari was examin-ed on behalf of non-petitioner no. 3 and Laxminarayan was examined on behalf of non-petitioner no. 2. As already stated above the Tribunal has decreed the claim so far as owner and driver of the vehicle are concerned, but the claim against the Insurance Company was rejected because in the absence of the Insurance policy it was not established that as a matter of fact, Vehicle No. RSQ 8525 was insured with non petitioner no. 2 at the time of the said accident. While rejecting the claim against the Insurance Company, the learned Member of the Tribunal made certain adverse remarks with regard to the evidence of Anil Bhandari and the conduct of non-petitioner no. 3. All the same, the claim against non-petitioner no. 3 was rejected.
(3.) AGGRIEVED against the rejection of the claim against the Insurance Company, the claimants have come up in appeal. During the pendency of this appeal, learned counsel for the claimants, submitted a certified copy of the registration certificate of the said three wheeler, and permission was granted to him under O. XLI, r. 27, C. P. C. to produce the same. When this registration certificate was thus brought on record, learned counsel for non-petitioner no. 3 (the present respondent) produced his true copy of the insurance policy relating to the said three wheelers and also moved an application under O. VI R. 17 CPC for amendment of the reply filed before the Tribunal. By the proposed amendment, non-petitioner no. 3 wanted to introduce a plea that although the vehicle was insured with non-petitioner no. 3 at the relevant time, the driver who was driving the vehicle at the time of this incident was not in employ of the owner Laxmi Narain and, therefore, was not driving the vehicle under his direction or with his permission and, thus, the term of the policy that the vehicle would be driven either by the insured or by a driver who is in employ and driving under his direction or with his permission, has been violated and, therefore, the Insurance Company is not responsible for the claim. It was also added in the reply that the liability of Insurance Company was limited under sec. 95 (2) (b) (i) of the Motor Vehicles Act (Act No. IV of 1939) (for short 'the Act' ). On this application, this Court, by its order dated 17-5-88 observed. " Mr. Bhansali has moved another application under Order 6 rule 17 read with section 151 Code of Civil Procedure. Mr. Purohit learned counsel submits that he does not object the request of Mr. Bhansali for permitting him to argue pleas available to him under section 95 (2) of Motor Vehicle Act. " The application of Mr. Bhansali under Order 6 rule 17 read with Section 151, CPC is accordingly disposed of Now the further dispute whether the vehicle in question was insured with the non-petitioner no. 3 at the time of the said accident stands resolved and after the copy of the policy being produced by respondent no. 3, there is no further dispute about this fact, The contention of the learned counsel for the claimants-appellants is that when now it is not in dispute that the vehicle in question was insured with non-petitioner no. 3, the present respondent, the liability of the respondent is clearly established and the award should be made against respondent no. 3 also as has been made against non-petitioners no. 1 and 2, i e. the owner and the driver of the vehicle. Mr. Bhansali appearing for the respondent (Insurance Company), however, urges that the liability of the respondent cannot be deter-mined merely because the copy of the insurance policy has been filed. He urges that he had aleady moved an application for amendment of the reply filed by the Insurance Company before the Tribunal and by way of that amendment, certain pleas available to the Insurance Company have been sought to be raised and when that application has been allowed, he should be permitted to amend the reply and then the matter may be sent back to the learned Tribunal to take evidence in respect of these pleas and then to decide the matter in accordance with law. Mr, Purohit has, of course, objected to this request and has urged that as a matter of fact, the proposed amendments have not been permitted to be made in the reply. All that has been allowed by order dated 17-5-88 to the respondent is that he can argue the pleas available to him under sec. 96 (2) of the Act and further urged that the fact that Laxmi Narayan was the owner of the vehicle and Champalal was its driver at the relevant time had not been disputed by any of the non-petitioners before the Tribunal and the only plea raised by the present respondent was that the vehicle in question was not insured with it. Now, by asking for the proposed amendment, the respondent could not have been allowed to raise a plea quite inconsistent and contrary to the plea raised by it before the Tribunal and that is why the amendment has not been allowed and only the questions which the Insurance Company can raise under sec. 96 2) of the Act have been permitted to be argued before this Court and, therefore, also there is no question of remand in this respect. ;