HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO(MVA) No.: 469 of 2005 Reserved on: 4.8.2009 Decided on: 17.9.2009 Oriental Insurance Company ………Appellant. Versus The Shawat Cooperative Society Ltd. and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.J.L. Kashyap, Advocate. For respondent No.1: Mr.H.C. Sharma, Advocate. For respondents No.2 & 3: Mr.Baldev Singh, Advocate. V.K. Ahuja, J: This is an appeal filed by the appellant under Section 173 of the Motor Vehicles Act against the award, dated 31.8.2005, passed by the learned Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, vide which the claim petition filed by respondent No.1 Society was allowed and they were held entitled to compensation to the extent of Rs.66,250/-, to be payable by the appellant/ Insurance Company. Briefly stated the facts of the case are that respondent No.1 as petitioner filed a claim petition ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - under Section 166 of the Motor Vehicles Act in which respondent No.2 was impleaded as owner of the vehicle, respondent No.3 was impleaded as driver of the vehicle and the present appellant was impleaded as respondent No.3 being the insurer of the vehicle. It was alleged by the petitioner that the claim petition has been filed by the Society which had authorized its member to file the petition on behalf of the Society. The petitioner had claimed compensation for damage to 595 boxes of apple being carried in vehicle No.HP 20 7775 owned by original respondent No.1 and being driven by respondent No.2 at the time of accident. The truck met with an accident on 28.8.2002 and the apple boxes being carried in the vehicle were damaged and an FIR was lodged. Thus, the petitioner claimed compensation to the extent of Rs.5.00 lacs. The allegations were denied by the respondents. The claim petition was tried by the learned Tribunal, who, on conclusion of the trial, granted compensation in favour of the petitioner, as detailed above. I have heard the learned counsel for the parties and have gone through the record of the case. The main point raised by the learned counsel for the appellant Insurance Company was that the claimant Society was not the owner of the property. It was submitted that 15 persons had entrusted goods to the Society but it has not been proved that they were members - 3 - of the Society or not, as such, the petition was not maintainable on their behalf. Coming to this plea of the appellant, the learned counsel for respondent No.1 Society had submitted that the Society was constituted for carriage of apple boxes and in accordance with the resolution, the Society had authorized the petitioner namely Gokal Chand to file the claim petition and as such the claim petition was maintainable. To substantiate this plea, the learned counsel for respondent No.1 had relied upon the decision in United India Insurance Company versus Noor Dass and others, 1 (2005) ACC 743, of this High Court. It was held, while considering the provisions of Section 165 and 166(1)(b) of the Motor Vehicles Act, 1988, that application for compensation can be made by owner of property and such owner has to be third party. Third party with respect to ownership of property damaged in accident means party other than insured inasmuch as insurer and insured are parties to contract of insurance and as long as insured is not claimant with respect to compensation claimed for damage to his property, claim will come within the purview of damage to “property of third party”. Whenever property is being carried in vehicle which is subject matter of insurance policy and this property does not belong to insured owner of vehicle in question nor property covered by any other independent policy of insurance, if it is damaged in accident, property belonging to third party, such third party is entitled to file claim petition under - 4 - Section 166 of the Act. In that case also, the apple boxes were being loaded in truck which were the property of forwarding company and that company was owned by claimants and claimants vis-à-vis insurers as well as insured being “third party” entitled to maintain claim petition and asked for compensation for loss suffered by them on account of damage to their property. It was held by this Court that the appellant-insurance company cannot be permitted to raise any challenge to the maintainability of claim petition at the instance of claimants. This decision is helpful to this Court in coming to a correct finding. Coming to the pleadings of the appellant in this regard, a perusal of the reply filed by the appellant as respondent No.3 shows that no such plea was taken by respondent No.3 that 15 persons whose apple boxes were loaded in the truck were not members of the Society or that they were not competent to file the claim petition through the Society, which had undertaken the work of carrying of the apple boxes. The only plea raised as preliminary objection was that the petitioner has no locus standi to file this case. Mere mentioning of these words that the petitioner has no locus standi to file this case is not sufficient and the court cannot look into all the pleas that may be raised in relation to locus standi. The respondent has to plead specifically as to on which ground he alleges that the petitioner has no locus standi to file this case and until and unless he alleges this ground specifically, no evidence can be led by the petitioner in - 5 - this regard. No evidence has been led by respondent No.3 also in this regard that the owners of the apple boxes were not members of the Society. Thus, in view of the fact that no proper plea was taken and it was not specific, no such plea can be allowed to be raised in relation to locus standi and accordingly, there is no merit in this contention put forth in this regard. Another plea raised was that the petition should have been filed under the Goods Carriage Act and not before the Motor Accident Claims Tribunal. No specific plea was taken in this regard and as such it cannot be allowed to be raised at this stage and, therefore, the contention put forth by the learned counsel for the appellant falls squarely on the ground. Another plea raised by the learned counsel for the appellant was that there was an exclusion clause which was not taken care of by the learned Tribunal vide which the Insurance Company was not liable to pay for the damage to the apple boxes being carried by the Society on behalf of some persons. The Insurance Company had only proved the copy of the insurance policy as Ext.RW-2/A with which policy the conditions of the policy were enclosed. They examined Shri Mahender Lal, RW-2, who proved this copy but did not state as to which particular clause was attracted to the present facts vide which the Insurance Company was not liable. He admitted in his statement in cross examination that the policy was comprehensive policy - 6 - and the property of third party was also covered under the policy. Thus, no case is made out to hold that the Insurance Company was not liable. No other specific point was urged. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly, with no order as to costs. September 17, 2009. (V.K. Ahuja), (TILAK) Judge.