IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA F.A.O.No. 87 of 2005. Judgment reserved on : 20.3.2009. Decided on : 26.3.2009. General Manager, Haryana Roadways …Appellant. Versus H.R.T.C. & Others. ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No. For the Appellant : Mr. Jagdish Thakur, Advocate. For the respondents : Mr. H. S. Rawat, Advocate for respondent No.1. Mr. Narinder Sharma vice Ms. Meenakshi Sharma, Advocate for respondent No.3. None for respondent No.2. __________________________________________________________ Kuldip Singh, Judge This appeal has been directed against the award dated 1.3.2004 passed by the learned Motor Accident Claims Tribunal, Una in MAC Petition No. 72 of 2000 awarding Rs.20,488/- compensation to respondent No.1 with 9% interest from the date of filing the petition till its realization with the direction that respondent No.3 insurer would pay Rs. 6000/- and Rs. 14,488/- remaining amount of compensation with interest shall be paid by the appellant and respondent No.2 who were held vicariously liable to pay the amount of compensation. The learned Tribunal out of principal amount of Rs.20, 488/-, awarded Rs.8,488/- towards cost of the repairs and Rs.12,000/- on account of ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2 business loss as the bus No. HP-20-0698 remained off the road for six days. 2. The brief facts of the case are that respondent No.1 filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘Act’) for grant of compensation on the grounds that bus bearing registration No. HP-20- 0698 of respondent No.1 was going from Pathankot to Una on 11.1.2000 and was being driven by Mangal Singh driver and Ram Pal was conductor on the said bus. At village Kathor Kalan the bus bearing registration No. HR-01-PA- 1074 which was being driven rashly and negligently by respondent No.2 came from opposite side and dashed against the bus of respondent No.1. The driver side of the bus of respondent No.1 was damaged. The bus HR-01-PA-1074 was owned by the appellant. The respondent No.1 filed claim petition claiming Rs.10,000/- on account of repair and replacement of spares and Rs.20,000/- on account of loss of business as the bus remained off the road from 12.1.2000 to 18.1.2000. Thus, an amount of Rs. 30,000/- in all, was claimed by respondent No.1 from appellant and respondent No.2. 3. The appellant contested the petition by filing reply and took preliminary objections of maintainability, locus-standi and non-joinder of necessary parties. On merits, the appellant denied the claim of respondent No.1. The appellant attributed negligence to the driver of the bus of respondent No.1 for causing the accident. It has, however, been pleaded that pressure meter of the bus which was being driven by respondent No.2 went out of order resulting in the accident. 4. The respondent No.3 insurer filed separate reply to the claim petition and took preliminary objections that bus bearing registration No.HR- 01-PA-1074 was being used against the terms and conditions of the insurance policy, the driver was not holding valid and effective driving licence at the time of the accident. The bus was also being used without any valid R.C., route permit and fitness certificate. On merits, the insured denied the claim. The learned Tribunal framed the following issues: 3 1. Whether the bus of the petitioner bearing No. HP-20-0698 has suffered damage due to rash and negligent driving of bus No.HR-01-PA-1074?...OPP. 2. In case issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and against whom?...OPP. 3. Whether the petition is not maintainable? OPR. 4. Whether the petitioner has no locus-standi to file the petition? ..OPR. 5. Whether the petition is vague, baseless and does not disclose any cause of action? ..OPR-3. 6. Whether the bus bearing No.HR-01-PA-1074 was being used against the terms and conditions of the insurance policy?..OPR-3. 7. Whether the driver of the bus No.HR-01-PA-1074 was not holding an effective driving licence at the time of accident, if so, its effect?..OPR. 8. Relief. The issue No.1 was decided in affirmative, issues No.3 to 7 were answered in negative and while deciding issues No.2 and 8, the learned Tribunal has awarded Rs.20, 488/- along with 9% interest, as noticed above, hence this appeal. 5. I have heard Mr. Jagdish Thakur, Advocate, learned counsel for the appellant, Mr. H. S. Rawat, Advocate, learned counsel for respondent No.1 and Mr. Narender Sharma, learned counsel for respondent No.3 and have gone through the record. The learned counsel for the appellant has confined his submissions to (i) that bus bearing No.HR-01-PA-1074 of the appellant was covered by policy Ex.RX wherein extra premium Rs.75/- was paid by the appellant and liability of respondent No.3 – insurer was unlimited and the learned Tribunal has erred in observing in the impugned award that no extra premium was paid by the appellant so as to make the liability of the insurance company unlimited, (ii) the respondent No.1 is not entitled to business loss. The learned counsel for the insurance company has fairly stated that as per policy Ex. RX, separate amount Rs.75/- was paid by the appellant and, 4 therefore, the liability of the insurance company cannot be said to be limited. He has also submitted that respondent No.1 is not entitled to business loss. The learned counsel for the respondent No.1 has supported the impugned award. 6. The policy Ex.RX is of vehicle No. HR-01-PA-1074 for the period 4.6.1999 to 3.6.2000. The accident took place on 11.1.2000 within the period covered by the policy Ex. RX. In policy Ex. RX for third party property damage unlimited Rs.75/- has been separately charged by respondent No.3 and under these circumstances, the learned counsel for the respondent No.3 insurer has fairly stated that in view of policy Ex. RX showing separate payment of Rs.75/- for third party property damage unlimited, the liability of respondent No.3 cannot be said to be limited. The learned Tribunal below in the impugned award has wrongly observed that no extra premium was paid by the appellant to make the liability of the insurance company unlimited. Therefore, it is held that in view of policy Ex. RX, the liability of respondent No.3 insurer for third party property damage is unlimited. 7. In so far the question of award of loss of business to respondent No.1 is concerned, this is also covered by National Insurance Co. Ltd. Vs. Bilaspur Gramudhyog Association and others, 2008 ACJ, 2058, in which another decision of this Court in Oriental Insurance Company Ltd. Vs. Balwant Singh, F.A.O. (MVA) No.456 of 2000, on this point was considered and it was held that in a claim petition under the Act loss of business cannot be awarded. Therefore, in view of National Insurance Company Ltd. (supra) as well as in Oriental Insurance Co. Ltd. (supra) in a claim petition under the Act, loss of business cannot be awarded. In these circumstances, the respondent No.1 is not entitled to loss of business amounting to Rs.12, 000/-. There is nothing on record to show that in fact respondent No.1 has not incurred Rs.8, 488/- on the repair of the bus. Therefore, respondent No.1 is entitled to only Rs.8, 488/- towards cost of the repair as per Ex. PW-3/A. 5 8. In view of above discussion, the impugned award is liable to be modified and it is held that respondent No.1 is entitled to an amount of Rs.8,488/- towards the cost of repairs of the bus along with 9% interest jointly from appellant, respondent No.2 and respondent No.3 insured. The liability of the insurer in view of policy Ex. RX is unlimited, therefore, respondent No.3 insured is liable to pay to respondent No.1 the whole amount of compensation amounting to Rs. 8,488/- along with 9% interest from the date of filing of the petition till realization. The impugned award is accordingly modified and the appeal is disposed of on the above terms. No costs. (Kuldip Singh) Judge. March 26, 2009. (GR)