FAO No. 716 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 716 of 2010 (O&M) Date of decision: 18.02.2010 ICICI Lombard General Insurance Company Ltd. ....Appellant Versus Smt. Joginder Kaur and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: -Ms. Vandanaa Malhotra, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) CM No. 3945-CII of 2010 For the reasons stated in the application, CM is allowed and the delay of one day in refiling the appeal is condoned. CM No. 3946-CII of 2010 For the reasons stated in the application, CM is allowed and the delay of 63 days in filing the appeal is condoned. FAO No. 716 of 2010 & CM No. 3947-CII of 2010 This appeal is directed against the award dated 20.07.2009, passed by the learned Motor Accident Claims Tribunal, Amritsar. The claimant filed a claim petition under Section 166 of the Motor Vehicles Act, for grant of compensation on account of death of Gura Singh S/o S. Sadha Singh, in a road accident, which occurred on 8.7.2008. The deceased was standing at a bus stand when truck No.RJ- 07-GA-1147, which was driven by respondent No.1, in a rash and negligent manner, came and struck against deceased Gura Singh, who sustained and succumbed to these injuries at the spot. The accident FAO No. 716 of 2010 (O&M) -2- was witnessed by Sakattar Singh S/o Gura Singh and Satnam Singh, Sarpanch. FIR was also registered qua this accident. Respondent No.1 denied the factum of accident. He pleaded that he was holding a legal and valid driving licence at the time of accident. Other averments made in the claim petition were denied. Similar stand was taken by respondent No.2 i.e. the owner, by denying the accident. The appellant/Insurance Company also took a plea, that no accident had taken place with the truck in question. It was further pleaded by respondent No.3, that copy of insurance policy was not supplied to it nor copy of driving licence was given to the Insurance Company, therefore, the claim petition against Insurance Company was not maintainable. Defence taken by respondent No.3 in written statement, as noticed by learned Tribunal, reads as under: - “Respondent No.3, in its separate written statement, apart from taking preliminary objections of cause of action, no alleged accident took place, no copy of insurance policy has been supplied to it, no copy of driving license has been provided to it and the claim petition is not maintainable, also denied the accident, as also, the age and income of the deceased. Rest averments contained in the claim petition were controverted and prayer for dismissal, thereof, was, thus, made.” On the pleadings of the parties, the learned Tribunal framed the following issues: - “1. Whether Gura Singh son of S. Sadha Singh, died in motor vehicular accident, which occurred on 8.7.2008 at about 8.15 P.M, in the area of bus adda, Abdal Sohi, tehsial and district Amritsar, due to rash and negligent driving of vehicle, truck FAO No. 716 of 2010 (O&M) -3- No.RJ-07-GA-1147, by respondent No.1? OPP 2. Whether the claimant is the legal representative of deceased Gura Singh? OPP 3. To what amount of compensation, the claimant is entitled for and from which of the respondents? OPP 4. Relief. 3-A. Whether respondent No.1 was not holding a valid and effective driving license at the time of accident? OPR-3” Learned Tribunal, on appreciation of evidence, recorded a finding, that Gura Singh son of Sadha Singh died in motor vehicular accident on 8.7.2008 at about 8.15 p.m. in the area of bus adda, Abdal Sohi, tehsil and district Amritsar, due to rash and negligent driving of vehicle, truck No.RJ-07-GA-1147, by respondent No.1, Ishwar Lal Kumar. The claimant was held to be legal representative of the deceased and held entitled to compensation. On the pleadings of the appellant, additional issue No.3-A was framed on 10.3.2009. However, at the time of arguments, this issue was not pressed. The finding recorded by the learned Tribunal on issue No.3 reads as under: - “ISSUE NO.3-A Learned counsel for respondent No.3 fairly conceded that respondent No.1 was holding valid and effective driving license at the time of accident and, sequelly, this issue is held against respondent No.3 and in favour of respondents Nos.1 and 2.” Learned counsel for the appellant challenged the impugned award on the plea, that the truck was being plied against the terms of the insurance policy, as it did not have route permit to ply in the State of Punjab. FAO No. 716 of 2010 (O&M) -4- An application moved by the appellant for production of the route permit was declined by the learned Tribunal, by passing a detailed order. The application was dismissed for the reason that no issue was framed qua this plea, as the only issue claimed by the appellant was regarding validity of the licence. Reading of the written statement of the appellant would show, that no plea qua route permit was pleaded. Therefore, no issue was framed thereon, and rightly so. As already observed above, application for production of route permit was declined for the reason that appellant had failed to lead evidence after availing a number of opportunities. The evidence of appellant was closed by order of the Court. Once a plea was not taken in the written statement and no issue was claimed, it is not open to the Insurance Company to raise the plea in this Court for the first time. The application for production of route permit was dismissed for the reason that no issue in this regard was framed or claimed, by the appellant for want of pleading. No evidence beyond pleading could be led or looked into as per settled law. Consequently, finding no merit in this appeal, it is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge February 18, 2010 R.S.