IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2236 of 2007(O&M) Date of decision: 4.12.2009 Oriental Insurance Co. Ltd. ......Appellants(s) Versus Abhijit Kaur w/o Ravinder Singh and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ashwani Talwar, Advocate for the appellant. None for respondents No.1 to 3. Rakesh Kumar Garg, J.(Oral) Vide order dated 24.5.2007 notice of motion was issued in this case. Respondents No.1 to 3 were duly served. However, respondent No.4 i.e. Owner-cum-driver of the offending vehicle could not be served despite many opportunities granted to the appellant. Vide order dated 27.3.2009 respondent No.4 was ordered to be served for 10.7.2009 on furnishing of correct address. Dasti process was also ordered. As per report, notice issued by way of ordinary process was received back unserved with the report that respondent No.4 is not residing at the given address. Dasti process was not received back. On 10.7.2009, case was adjourned as none was present. On 9.9.2009 again on request the case was adjourned. It is clear that after 27.3.2009, the appellant has not taken any steps to complete the service. Thus, in these circumstances this Court has no option but to proceeded to hear the appellant on merits. However, it will not cause any prejudice to the parties as this Court is deciding this appeal on merits. This is insurer's appeal challenging the impugned award whereby the appellant has been jointly and severally held liable to pay the compensation along with the owner-cum-driver of the offending vehicle on the ground that the findings of the Tribunal on issue No.1 with regard to the accident in question are erroneous as no accident took place with the offending vehicle and in fact there was a collision between the owner- cum- driver of the offending vehicle and the claimants. It is the further case of the appellant that the collision between the parties was specifically pleaded in the preliminary objections raised in the written statement filed on behalf of the appellant and moreover, an application under Section 170 of the Motor Vehicles Act was also filed, which however, was not decided by the Tribunal and thus, the impugned award is liable to be set aside. I have heard learned counsel for the appellant. However, I find no merit in the contention raised by him. In spite of the fact that, as argued, the appellant had taken a specific objection in its pleadings yet no issue between the parties with regard to the collision was framed by the Tribunal. Neither any objection against non framing of such an issue was raised by the appellant at any stage of the proceedings before the Tribunal nor any petition in this regard was preferred. Even the grouse with regard to the non decision on the application under Section 170 of the Motor Vehicles Act by the Tribunal seems to be an afterthought and is without any merit as no material has been placed on record to support the plea even in the grounds of appeal. Not only this, even no foundation of facts has been laid to demonstrate whether such application was ever pressed by the appellant before the Tribunal. Moreover, there is not an iota of evidence on record to show that there was any collision between the driver-cum-owner of the offending vehicle on one side and the claimants on the other side. Thus, I find no merit in this appeal. Dismissed. December 4, 2009 (RAKESH KUMAR GARG) ps JUDGE