An insurer cannot raise a new defense on appeal, such as the lack of insurance coverage for passengers, if such a plea was not explicitly raised in the written statement or supported by evidence during the trial proceedings.

ORDER :

Rajendra Kumar Vani, J.

This order shall govern disposal of all the three Misc. Appeals and one civil revision as they arise out of common award dated 01.11.2012 passed by the Additional Motor Accident Claims Tribunal, Sheopur in Claim cases Nos.01/2012, 02/2012, 03/2012 and 05/2012; whereby, learned Claims Tribunal has awarded compensation of Rs.96,600/- in favour of claimant Mukesh, Rs.35,000/- in favour of claimant Ashabai, Rs.3,87,000/- in favour of claimant Banti and Rs.9,000/- in favour of claimant Lalaram.

2. Briefly stated, the facts of the case are that on 13.05.2011 the claimants along with others were travelling in Jeep No.MP-33 D-0192 from Vijaypur to Narvar Lodi Devi Mata temple. Respondent- Bharatlal was driving the said jeep rashly & negligently, due to which the offending vehicle capsized, as a result of which the claimants sustained injuries.

3 . It is submitted by the learned counsel for the Insurance Company that the policy Ex.D/3 is a private car act only policy. Only premium has been paid for third party as well as for employee under Workmen Compensation Act, but no premium has been paid for the passenger travelling in the vehicle, therefore, the claimants are not covered under this policy, and therefore, the Insurance Company is not liable to pay the compensation at all. There is no question of pay and recover arises. He placed reliance on the following judgments :-

(i) National Insurance Co. Ltd. Vs. Balakrishnan and another , 2013 ACJ 199

(ii) Oriental Insurance Co. Ltd. vs. Surendra Nath Loomba and others , 2013 ACJ 321

(iii) M.P. Electricity Board vs. Laxminaraya & Ors., 2008(1) T.A.C. 88 (M.P.)

(iv) Smt. Guddi and others vs. Pooran Singh & Ors. decided on 10.11.2022 in M.A.No.976/2011

Therefore, the learned Tribunal erred in issuing the order as regards pay and recover and prays for setting aside the impugned award to the extent it directs the Insurance Company to first pay the compensation to the claimants and then recover it from the owner and driver of the offending vehicle.

4. Per contra, learned counsel appearing for the respondents/driver and owner of the offending vehicle submits that neither Insurance Company has pleaded such objection in their reply nor any issue has been framed in this regard nor any evidence has been adduced in this regard to show that policy (Ex.D/3) was only private car act policy and no premium was paid for the passengers travelling in the vehicle, and therefore, the claimants are not covered under the policy. The Insurance Company has pleaded and proved the fact that offending vehicle was being driven in violation of the conditions of the policy. It was used as a commercial vehicle and the driver of the vehicle did not have any driving licence to drive commercial vehicle. On both the counts, the case is found to be of violation of conditions of the policy. Learned Tribunal has also found it proved by considering the evidence on record, and therefore, Insurance Company is not found responsible for payment of compensation, but learned Tribunal in para 40 has considered the law in this regard and held that since the conditions of policy has been violated, therefore, by statutory obligation the Insurance Company is liable to pay the compensation and then to recover the same from the owner and driver of the offending vehicle. There is no argument put forth by learned counsel for the Insurance Company that because of only private car act policy, the Insurance Company was not at all liable to pay