FAO No.2275 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2275 of 2010 (O&M) Date of Decision: 3.05.2010 New India Assurance Company Limited ..Appellant Vs. Smt.Kanta Arora & Ors. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Mrigank Sharma, Advocate, for Ms.Veena Ashwani Talwar, Advocate, for the appellant. --- Vinod K.Sharma, J, (Oral) CM No.11083-CII of 2010 In view of the averments made in the application, civil misc. is allowed and the delay of 17 days in filing the appeal is condoned. FAO No.2275 of 2010 & CM No.11084-CII of 2010 This appeal by the Insurance Company is directed against the award dated 28.11.2009 passed by the learned Motor Accident Claims Tribunal, Rohtak (for short the Tribunal), under section 166 of the Motor FAO No.2275 of 2010 2 Vehicles Act (for short the Act) allowing the claim petition, moved by the claimant/respondents, for the grant of compensation, on account of death of Satish Kumar. The claimant/respondents filed a claim petition under section 166 of the Act, on the pleadings that deceased Satish Kumar along with his son Vishal and driver Sher Singh was going from Sirsa to Delhi in Wagon- R.Car bearing registration No.HR-26-AC-0025. At about 6.30 AM, when they reached near Atish Ply Factory, Hisar Road, village Bahuakbarpur a truck bearing No.HR-38-F-6879 was standing in the middle of the road without emergency light. Driver of the vehicle could not see the truck due to fog and the car dashed into truck. The accident was, therefore, said to have taken place due to negligence of the driver of the Tralla due to leaving the truck in dangerous position in the middle of the road without emergency light in fog weather. In the accident Satish Kumar died, whereas Sher Singh and Vishal received injuries. FIR No.24 dated 1.2.2006 under sections 283/337 IPC was got registered against respondent No.1. Compensation of Rs.50 lacs (Rupees fifty lac only) was claimed on the plea that the deceased was 49 years old and had income of Rs.1.5 lacs (Rupees one lac and fifty thousand only) per annum. In addition, the claimants spent an amount of Rs.1.5 lacs (Rupees one lac and fifty thousand only) on treatment, transportation of dead body and last rites of the deceased. The claim was contested by the owner and driver of truck- tralla, by pleading that the vehicle in question was not standing in the FAO No.2275 of 2010 3 middle of the road. Rather it was standing on the correct side of the road. Accident was said to have been caused on account of sole fault, rash and negligent driving of Sher Singh, driver and no fault, therefore, could be attributed to respondent No.6. The appellant/respondent No.3 contested the claim petition by raising preliminary objection that the claimant had no cause of action against the Insurance Company. The claim petition was said to be bad for non-joinder of necessary and proper parties. It was pleaded that the driver of the offending truck did not have a valid driving licence. It was pleaded that it was a case of contributory negligence. Plea that the deceased was earning an income of Rs.1.5 lac (Rupees one lac and fifty thousand only) per annum was also denied. Learned Tribunal on appreciation of evidence recorded a finding that the accident in question took place due to rashness and negligence of driver of truck bearing No.HR-38F-6879 which was wrongly parked by respondent No.6. In view of the proved income and evidence led the claimants were held entitled to compensation to the tune of Rs.17 lacs (Rupees seventeen lac only). Liability was fixed jointly and severally. Interest at the rate of 7.5 per cent per annum was also granted on the awarded compensation. Though onus of issue No.3 was on the Insurance Company, it led no evidence to rebut the evidence led by production of Driving Licence Ex.DA. Issue No.3 was decided against the appellant. In view of the fact that application under section 170 of the FAO No.2275 of 2010 4 Act was dismissed by the learned Tribunal, it is not open to the appellant to challenge the award on merit. Mr.Mrigank Sharma, Advocate, for Ms.Veena Talwar Advocate, appearing on behalf of the appellant, challenged the order passed by the learned Tribunal dismissing the application under section 170 of the Act. Learned Tribunal had come to the conclusion that as the claim petition was contested by other respondents, the application under section 170 of the Act, therefore, deserved to be dismissed. The application was dismissed on 25.11.2009 and case was fixed for rebuttal evidence. On the said date after hearing the arguments award was passed. The contention of the learned counsel for the appellant was that the Insurance Company, had no time to challenge the order passed under section 170 of the Act. It was also the contention of the learned counsel for the appellant that in this case the driver and the owner of the truck had colluded with the claimants, and did not contest the case, whereas it was a case of contributory negligence. Furthermore, compensation was based on inadmissible evidence. This court in the present case is only concerned with the order passed on the application under section 170 of the Act. The appellant has failed to show any reason, as to why the application moved under section 170 of the Act was not pressed, and it was only when the parties had already concluded their evidence, the application FAO No.2275 of 2010 5 was pressed. It therefore, cannot be said that the order dismissing the application, suffers from any illegality. The facts and circumstances proved on record clearly show that the finding recorded by the learned Tribunal cannot be said to be perverse. Order passed by the learned Tribunal under section 170 of the Act deserves to be upheld. Once the application under section 170 of the Act was not allowed the appellant cannot be permitted to challenge the award on merit. Consequently, finding no merit in this appeal, it is ordered to be dismissed in limine. No costs. (Vinod K.Sharma) 3.05.2010 Judge rp