BHASKAR BHATTACHARYA, J.

1. This appeal under section 173 of the Motor Vehicles Act is at the instance of an Insurance Company and is directed against an award dated 14th March 2007 passed by the Motor Accident Claims Tribunal (Main), Sabarkantha at Himatnagar in M.A.C.P. No. 632 of 2003 thereby the learned Tribunal below allowed the application under section 166 of the M.V. Act, awarding an amount Rs. 371,800/- with interest the rate of 7.5% per annum from the date of application till its realisation, with proportionate costs.

2. It appears from the records that on 17th April 2003, the deceased was travelling as a pillion rider on motor cycle No. GJ.9.L.413, being driven and owned by the opponent No.1. When the said motor cycle reached the turning on Kishangadh in the sim of village Kishangadh, a dog came in front of the motor cycle, the driver applied sudden brake but due to the excessive speed, rash and negligent driving, the motor cycle came off the road and collided with a tree, and due to the impact, the deceased sustained serious injuries all over his body, to which he later on succumbed during the treatment.

2.1 According to the claimants, the victim was aged 32 years and used to earn Rs. 5000/- a month as Electrician and also from agricultural activities. The claimants, thus, prayed for compensation of Rs. 4 lakh.

3. The aforesaid claim-application was opposed by the Insurance Company thereby denying all the allegations made in the application, and a plea was also taken that at the time of the accident, the owner-cum-driver of the motor cycle had no valid licence. The learned Tribunal, as indicated earlier, by the impugned award, has awarded a sum of Rs. 3,71,800/-.

4. Mr. Gade, the learned advocate appearing on behalf of the appellant-Insurance Company has strenuously contended before me that it would appear from the driving licence filed by the claimants that the driver had a valid licence to drive LMV, HGV, HPV and TRA, and submits that by virtue of such licence, one is not entitled to drive a two-wheeler, and, therefore, according to Mr. Gade, his client is not liable to pay the amount awarded by the Tribunal.

5. Mr. Apurva Jani, the learned counsel appearing on behalf of the claimant has, however, opposed the aforesaid contention of Mr. Gade and has contended that in the proceedings under section 140 of the MV Act, an amount of Rs. 50,000/- had been awarded in favour of his clients with a finding that the Insurance Company was liable to pay the amount, and pursuant to such award, the amount has also been paid to his client by the Insurance Company. By relying upon such order, Mr. Jani contends that the Insurance Company having not raised such a plea in the proceedings under section 140 of the M.V. Act, is precluded from taking the said plea in the subsequent stage of Section 166 of the Act. In other words, according to Mr. Jani, the plea now sought to be taken is hit by the doctrine of constructive res judicata.

6. Having heard the learned counsel for the parties and after going through the materials on record, I find that in the Written Statement, a specific plea was taken that at the time of the accident, the driver of the offending vehicle had no valid licence, but what was the defect in the licence, was not indicated. Before the Tribunal, when issues were framed, no such specific issue was framed as to the validity of the driving licence. Even when the sole witness for the claimant gave deposition, no suggestion was given to her in cross-examination that the driver of the motor cycle had no valid licence. It is needless to mention that the Insurance Company, of its own, did not adduce any evidence raising such point.

7. The learned Tribunal, as it appears from the findings recorded in the award, has recorded that the learned advocate for the Insurance Company took a plea that the driver had no valid licence but he overruled the said plea by stating that copy of driving licence was produced which showed that