JUDGMENT

1. In the instant appeal, challenge is thrown to award dated 13.11.2006 passed by the Motor Accident Claims Tribunal, Udhampur (hereinafter referred to as the “Tribunal”) in claim titled as, “Kailash Kumari and ors. Vs. the Branch Manager and ors.”

2. The facts emerging from the instant appeal would reveal that the respondents herein filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short the, “Act”), claiming compensation therein in respect of death of one Birbal Sharma (the husband of respondent 1 and father of respondents 2 and 3) having died in a vehicular accident on 09.10.1998. Besides impleading the Insurance Company-respondent 4 herein as party respondent 1 in the claim petition, the present appellant came to be impleaded as respondent 2 as the owner of the Scooter being driven by respondent 2 with the deceased as a pillion rider thereon.

3. In response to the notice issued by the Tribunal in the claim petition, the respondent being appellant and respondent 4 herein entered their appearance and contested the claim petition. The respondent 1-Insurance Company in the claim petition, inter-alia, stated in its objections that the driver of the offending vehicle was not possessed of a valid driving licence at the time of alleged accident and, as such, not liable to indemnify the insured. It came to be further stated by the Insurance Company in its objections by way of preliminary objections that the deceased was travelling as a pillion rider on the offending vehicle and the risk of pillion rider is not covered under the insurance policy, as such, it is not liable to indemnify the insured on account of death of the pillion rider.

4. The respondent 2-appellant herein in response to the claim petition in his objections admitted that the deceased was a pillion rider on the Scooter being driven by him, yet alleged that the deceased did not die because of his alleged rash and negligent driving, but on account of hitting of the Scooter in question by a truck having been driven rashly and negligently, whereabouts of which truck could not be traced.

The Tribunal on the pleadings of the parties, framed following four issues:-

“(I) Whether the deceased-Birbal Sharma, has died in a road

accident caused by rash and negligent driving of offending scooter No. 1086/JK14 by respondent No. 2- Kabla Singh owned by him and insured by respondent No. 1 on 09.10.1998 at Bikhan Galla on NHW in village Mand? (OPP)

(II) In case Issue No. 1 is proved in affirmative whether the petitioners are entitled to receive compensation if so, to what extent and from whom? (OPP)

(III) Whether the driver of the offending vehicle was not holding a valid driving licence at the time of the accident as such respondent No. 1 is not liable to indemnify the owners? (OPP)

(IV) Relief.”

The claimants/respondents 1 and 2 examined three witnesses besides the claimant/respondent 1 herein appearing as her own witness, whereas respondent-Insurance Company produced one witness, namely, Kuldeep Raj. The respondent 2/appellant herein, however, did not produce any evidence, whereafter the Tribunal consequently passed the impugned award, directed to be payable by respondent 2/appellant herein on the premise that as per the terms and conditions of the insurance policy, the risk of pillion rider was not covered.

The appellant has thrown challenge to the impugned award on the grounds urged in the claim petition.

Heard learned counsel for the parties and perused the record.

5. Learned counsel for the appellant while making his submissions in line with the grounds urged in the petition would pray for setting aside of the award. On the contrary, learned counsel appearing counsel for the respondents while opposing the contentions of the learned counsel for the appellant would pray for dismissal of the appeal.

6. It is significant to mention here that the appearing counsel for the appellant would lay emphasis on the ground that the Tribunal failed to frame an issue on