FAO No.3212 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3212 of 2011(O&M) Date of decision: 26.4.2011 Bajaj Allianz General Insurance Company Ltd. ......Appellant(s) Versus Seema Kalra and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Subhash Goyal, Advocate for the appellant. Rakesh Kumar Garg, J.(Oral) CM No.10837-CII of 2011 For the reasons mentioned in the application, delay of 3 days in filing this appeal is condoned. CM stands disposed of. FAO No.3212 of 2011 This is insurer's appeal challenging the impugned award dated 11.12.2010 whereby Motor Accident Claims Tribunal, Moga awarded a sum of Rs.7,00,200/- to claimant-respondent Nos.1 and 2 on account of death of Varun Kalra, unmarried son of respondent-claimant No.2. As per the findings of the Tribunal, aforesaid Varun Kalra had died on 2.1.2009 in a Motor Vehicle Accident caused due to rash and negligent driving of truck No.PB-12B-1382 which was owned by respondent No.4 and driven by respondent No.3.Admittedly, the offending vehicle was insured with the appellant at the time of accident. The claim petition filed by the respondent-claimants was contested by the driver and owner of the offending vehicle as well as by the appellant. It was the case of the appellant before the Tribunal that the offending vehicle was being FAO No.3212 of 2011(O&M) 2 driven by respondent No.3 in contravention of the terms of the Insurance Policy and therefore, the appellant-Company was not liable to pay the compensation. On the pleadings of the parties, the following issues were framed: “1. Whether on 2.1.2009 Varun Kalra met with Motor Vehicle accident due to rash and negligent driving of the Truck PB-12-B-1382 by the respondent No.1 resulting into his death? OPA 2. Whether the applicants are entitled to receive compensation if so what amount and from whom? OPP 3. Whether the accident took place due to rash and negligent driving of the Car bearing registration No.PB- 29J-1002 by Pardeep Singh? OPR3 4. Whether the driver of the offending tanker was not holding valid and effective driving licence at the time of alleged accident? OPR3 5. Whether the offending vehicle was driven in contravention of the terms of the Insurance policy, if so its effect? OPR3 6. Relief.” It is a matter of record that appellant led no evidence to prove issues No.3, 4 and 5 hence the same were answered against it. Since the offending vehicle was insured with the appellant-Company, the Tribunal held that the appellant-Insurance Company was jointly and severally liable to make the payment of compensation. The aforesaid award of the Tribunal has been challenged by the appellant before this Court solely on the ground that the appellant- Company while filing written statement had also filed an application under Section 170 of the Motor Vehicles Act alleging that the claim petition was the result of collusion between the claimants, the driver and owner of the vehicle and therefore, the appellant-Company be given permission to FAO No.3212 of 2011(O&M) 3 oppose the claim petition on merits as well, however, the said application has remained pending and has not been decided which has vitiated the whole proceedings and therefore, the impugned award is liable to be set aside. Admittedly, the aforesaid application under Section 170 of the Motor Vehicles Act was filed by the appellant-Company along with its written statement. A perusal of the impugned award shows that on the basis of the pleadings of the appellant, the Tribunal had framed three issues claimed by the appellant-Company. There is no indication from the impugned award that either any other issue was claimed by the appellant or the aforesaid application was ever pressed. Neither there is any evidence on record on the basis of which it can be held that there was a collusion between the claimants as well as driver and owner of the offending vehicle. Therefore, the argument raised by the learned counsel for the appellant is without any merit. In view of the aforesaid, I find no merit in this appeal. Dismissed. April 26, 2011 (RAKESH KUMAR GARG) ps JUDGE