ORDER
H.S. Bedi, J.
1. This appeal arises from the award-dated 8.5.1986 of the Motor Accident Claims Tribunal, Karnal whereby the claim petition filed by Smt. Sardari and others with respect to death of Sardari’s husband Jagiru has been dismissed on the ground that the identity of the tractor and its driver had not been proved.
2. On the pleadings of the parties the following issues were framed:
1. Whether the accident on 10.2.85 at about 7.30 PM took place due to rash and negligent driving of Sushil Kumar driver of tractor No. HYC-173? OPP
2. If issue No. 1 is proved, whether the petitioners are entitled to compensation, if so, to what amount and from whom? OPP
3. Whether the petition is bad for mis-joinder of parties and non-joinder of necessary parties? OPR
4. Whether the driver of the tractor was not holding any valid licence at the time of alleged occurrence, if so, to what effect? OPR
5. Relief.
3. While dealing with Issue No. 1, the Tribunal observed that from the statement of PW6 Smt. Sardari who was travelling in a tonga which was being driven by her husband Jagiru, it was clear that the tonga had met with an accident with a tractor. It has, however, observed that Sardari had nowhere stated or even got recorded in the FIR that Sushil Kumar (respondent No. 1) present in Court was the tractor driver and had caused the accident despite her assertion that 3 days after the accident he had approached her for a compromise. The Tribunal then went on to decide issue No. 2 on the quantum of compensation and concluded that the claimants were entitled to Rs. 63,000/- as compensation but dismissed the claim petition in view of findings arrived at on issue No. 1.
4. The present appeal has been filed by the claimants impugning the award.
5. I have heard the learned counsel for the parties and have gone through the record of the case.
6. It is Sardari’s case that she had been travelling in the Tonga in question. She has stated that though she did not know the driver earlier she had come to know of his name when he had approached her for a compromise about 3 days after the accident. To my mind in this situation the mere fact that she had not given the name of the driver of the tractor in the FIR has no significance the more so as she was an illiterate lady. The fact that she has been approached by Sushil Kumar for a compromise of the accident is also proved by the evidence of PW2 Ram Sarup, PW3 Banarsi Dass and PW4 Kishan Ram. The Tribunal has rejected their evidence on the ground that these witnesses were discrepant as to whether the offer for compromise had been made 3 or 5 days of the accident I find this observation of the Tribunal as bereft of substance as such discrepancies are bound to occur in statements of witnesses recorded after a long delay. The Tribunal has also given a positive finding that Sushil Kumar did not have a valid driving licence, and as such, the insurance company was not liable for the payment of the compensation amount and the liability to pay the same rested on him alone. The Learned counsel for the appellant has argued that in view of the judgment of the Supreme Court in New India Insurance Company, Shimla v. Kamla and Ors. (2001-1)127 P.L.R. 830 (S.C.) the liability to first pay the compensation would still be on the insurance company although it would be entitled to recover the same from the driver. To my mind, the aforesaid judgment would not apply to the facts of the present case as Sushil Kumar did not hold any driving licence. To my mind, the liability to pay the compensation would, thus, rest on him alone.
7. In view of the facts, the findings of the Tribunal on issue No. 1 are reversed, the appeal is allowed and award made in favour of the claimants in terms determined by the Tribunal on issue No. 2.