IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision:4.3.2009 FAO NO.1155/2009 United India Insurance Company Limited ..........Appellant Versus Bimla Devi and others ..........Respondents AND FAO NO.1156/2009 United India Insurance Company Limited ..........Appellant Versus Vinod Kumar and others ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr.Sanjiv Pabbi,Advocate for the appellant-Insurance Company. JASWANT SINGH,J This order will dispose of aforesaid two appeals filed by appellant- Insurance Company arising out of the common award dated 15.12.2008 passed by Motor Accident Claims Tribunal, Hisar (hereinafter referred to as the Tribunal) whereby the following compensation was awarded to claimants:- FAO NO.1155/2009 -2- S.No. FAO No./Year Claim Petition NO. Compensation awarded Rs.P. 1 1155/2009 553/2004 5,45,000-00 2 1156/2009 101/2006 40,000-00 The facts leading to the filing of the instant appeals are that on 16.9.2004 there was a collusion between two trucks-bearing registration no. HR-24-0573 being driven by deceased Satbir, who was accompanied by injured Cleaner, Vinod Kumar and another truck bearing registration no. HR- 38J 8432 (hereinafter referred to as the offending vehicle), of which the appellant is the insurer. As a result of the said accident, deceased Satbir died on the spot while Cleaner Vinod received injuries. The offending vehicle, after causing the accident ran away from the spot. FIR in regard to the accident in question was lodged. Bimla Devi widow of deceased Satbir and her minor son as well as Cleaner Vinod Kumar filed two separate claim petitions, which were partly accepted by the learned Tribunal and compensation, as mentioned above, was awarded. Aggrieved against the same appellant being the Insurer of the offending vehicle has filed these two appeals. At the outset, it may be mentioned here that the factum of accident, the driver holding a valid driving licence, the vehicle duly covered under the insurance policy issued by the appellant and non-breach of any of the terms and conditions of the insurance policy are not denied in both these appeals. The sole argument raised by the learned counsel for the appellant FAO NO.1155/2009 -3- Insurance Company is that it was a case of contributory negligence and in any case the appellant Insurance Company cannot be made liable to pay the compensation for the lapse of the deceased driver-Satbir of the other truck. After hearing the learned counsel for the appellant and perusing the record carefully, I find no force in this submission of the learned counsel. The learned Tribunal while deciding the claim petition had framed five issues. Issue no. I related to the negligence of the offending vehicle. In support of the said issue, the claimants- i.e. widow of deceased Satbir and injured eye witness Vinod Kumar appeared in the witness box and it was their case that on 16.9.2004 at 3.00 a.m. while deceased Satbir was driving the truck at a moderate speed by adhering to the traffic rules, the offending vehicle being driven in a rash and negligent manner came from Bahadurgarh Side and struck against the truck being driven by deceased Satbir, in which his Cleaner Vinod Kumar also received injuries. Injured Vinod Kumar-respondent no.1 in FAO No.1156/2009 is none else than the Cleaner who was accompanying deceased Satbir and is an eye witness. He categorically stated that the accident in question took place due to rash and negligent driving of the offending vehicle insured by the appellant company. Further their evidence was corroborated by the FIR (Ex.P-10) registered in this regard on the same day. This evidence of the claimants could not be shaken despite lengthy cross examination and was found by the Tribunal to be cogent and reliable. Further, the driver of the offending vehicle, namely, Roshan Khan chose not to appear in the witness box. FAO NO.1155/2009 -4- Once the evidence led by the claimants-respondents had gone un- rebutted, there was no other evidence left with the learned Tribunal which could have led it to a different conclusion, i.e. of contributory negligence as is being now sought to be projected. Moreover, if the driver of the offending vehicle chose to abstain from the claim proceedings, the Insurance Company was at liberty to move an application under Section 170 of the Motor Vehicles Act,1988 to seek permission to raise all the pleas available to the driver/owner of the offending vehicle. However, perusal of the record shows that no such application was ever moved by the appellant-Insurance Company. On this count also the present appeals are liable to be dismissed. No other point has been raised. For the reasons stated above,finding no merits in these appeals the same are hereby dismissed. No costs. 4.3.2009. (Jaswant Singh) joshi Judge