IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO(MVA) Nos.423 of 2006, 424 of 2006, 432 of 2007, 508 of 2007 and 689 of 2008. Judgment Reserved on: 16.08.2011 Date of decision: 15.10.2011. 1. FAO(MVA) No.423 of 2006. Oriental Insurance Company Ltd. … …Appellant Versus Smt.Sagura Begam & Others … …Respondents 2. FAO(MVA) No.424 of 2006. Oriental Insurance Company Ltd. … …Appellant Versus Smt.Sagura Begam & Others … …Respondents 3. FAO(MVA) No.432 of 2007. Oriental Insurance Company Ltd. … …Appellant Versus Smt.Rekha Devi & Others … …Respondents 4. FAO(MVA) No.508 of 2007. Oriental Insurance Company Ltd. … …Appellant Versus Smt.Dropti Devi & Others … …Respondents 5. FAO(MVA) No.689 of 2008. Oriental Insurance Company … …Appellant Versus Banwari Lal & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. FAO(MVA) Nos.423 and 424 of 2006. For the Appellant: Mr.G.C. Gupta, Seniior Advocate with Mr.Deepak Gupta, Advocate. For Respondent(s): Mr.Vishal Panwar, Advocate. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 FAO(MVA) No.432 of 2007 For the Appellant: Mr.G.C. Gupta, Senior Advocate with Mr.Deepak Gupta, Advocate. For Respondents No.1 to 6: Mr.Arvind Sharma, Advocate. For Respondent No.7: Mr.Lalit Kumar Sehgal, Advocate. FAO(MVA) No.508 of 2007 For the Appellant: Mr.G.C. Gupta, Senior Advocate with Mr.Deepak Gupta, Advocate. For Respondents No.1 to 3: Mr.H.S. Rawat, Advocate. For Respondent No.4: Mr.Peeyush Verma, Advocate. FAO(MVA) No.689 of 2008 For the Appellant: Mr.G.C. Gupta, Senior Advocate with Mr.Deepak Gupta, Advocate. For Respondent No.1: Mr.H.S. Rawat, Advocate. For Respondent No.2: Mr.Peeyush Verma, Advocate. For Respondent No.3: Mr.Arvind Sharma, Advocate. Dev Darshan Sud,J. All these appeals are being disposed of by this judgment as they relate to the same accident involving the same vehicle. 2. The case of the petitioner(s) in each one of the cases is that on 15.8.2004 the deceased was travelling in Maxi Cab No.HP-01A-3184, which was being used as a taxi, from Sawara Kanchi to Rohru. The accident took place because of the rash and negligent driving of the driver at Parhat Pool at around 12.00 P.M. when he lost control over the vehicle and it fell down from the bridge. 3 3. In FAO No.423 of 2006, four issues were settled; (a) as to whether the Maxi Cab was being driven rashly and negligently? (b) the entitlement of the petitioner to the compensation and if so from whom? (c) Whether the driver of this Maxi Cab was not holding valid and effective driving licence at the time of the accident? These issues were also settled issues before the learned Tribunal in the petition out of which FAO No.424 of 2006 was filed. 4. FAO No.432 of 2007, which also arises out of the same accident, two issues on which the Insurance Company sought exoneration were (a) whether the driver of Maxi Cab No.HP-01A-3184 was not possessed of a valid driving licence? and (b) whether it was being driven without Registration Certificate and valid route permit? 5. In FAO No.689 of 2008, again two important issues framed were, namely, (a) Whether the driver was not having valid and effective driving licence to drive Maxi Cab No.HP-01A-3184 at the time of accident? (b) Whether the Maxi Cab No.HP-01A-3184 was being driven without Registration Certificate, Route Permit, Fitness Certificate and in violation of policy condition and in breach of the provisions of Motor Vehicle Act? These issues have been reproduced in some detail as they were framed on the pleadings of respondent No.3, Oriental Insurance Company Limited, the appellant herein. 4 6. Starting with FAO No.689 of 2008, titled: Oriental Insurance Company vs. Banwari Lal & Others, which arises out of MAC Petition No.19-R/2 of 2008/05. In this case, respondent No.3 Insurance Company before the learned Motor Accident Claims Tribunal, examined RW-1, SI Prem Singh, SHO and RW-2 Kuldip Mehta, who was the Development Officer, Oriental Insurance Company, Shimla. Adverting to the evidence of RW-2 first, he states that he was working as Development Officer in the Insurance Company, the accidented vehicle HP-01A- 3184 was insured with this condition that if more than 9 passengers are carried, the Insurance Company will not be liable to pay any compensation whatsoever. 7. Adverting to the judgment of the learned Tribunal, what I find from the record is that the first two issues, relating to the factum as to whether the accident took place because of the rash and negligent driving of the Maxi Cab No.HP-01A-3184 and the quantum of insurance, have been contested. The two issues on which the Company seeks exoneration have not been pressed or argued before the learned Tribunal, meaning thereby that the principle of plea and issue abandonment is squarely attracted to the present case. It is urged before me that the findings on these two issues cannot be sustained and that RW-2 had proved on record that the vehicle was overloaded. 8. I cannot accept this submission made on behalf of the appellant as the only fact, which RW-2 5 Kuldip Mehta states, is that the vehicle was being plied in breach of the terms and conditions of the Insurance Policy and no specific fact(s) were proved on record. Moreover, once the issues are abandoned by the appellant herein, no adjudication can be sought in appeal. This appeal is, therefore, dismissed. 9. In FAO No.508 of 2007, titled: Oriental Insurance Company Ltd. vs. Smt.Dropti Devi and Others, arising out of the same accident, in case instituted before the learned Motor Accident Claims Tribunal being MAC Petition No.54-S/2 of 2006/05, again what I find is that issue No.4 has been framed in the following terms:- “4. Whether at the time of accident the vehicle was being driven in contravention of the terms and conditions of the Insurance Policy? 10. The findings of the learned Tribunal is “This issue is decided against the respondent No.3 having neither been pressed nor argued” 11. Issue No.3 related to whether the driver was possessed a valid driving licence. On this issue the learned Tribunal holds that the Insurance Company has not led any evidence on the record and that Ex.RW-1/G established that the driver has a valid driving licence for LTV. RW-3/A is the Insurance Policy which provides that the seating capacity of the vehicle is nine, but in any event since the issue has not been pressed, this 6 Court need not go into that aspect. Mark `X’ is the report of the Investigator of the Insurance Company who has not been produced in evidence. 12. There is, thus, no merit in this appeal which is accordingly dismissed. 13. FAO No.432 of 2007, titled: Oriental Insurance Company Ltd. vs. Smt.Rekha Devi & Others, arising out of the same accident, in case instituted before the learned Motor Accident Claims Tribunal being MAC Petition No.151-S/2 of 2005/04. 14, In this case issue No.4 before the learned Motor Accident Claims Tribunal was as to whether the vehicle was being driven without a valid Registration Certificate and Route Permit, on which the finding of the learned Tribunal is “Issue No.4 not pressed”. On the third issue, the Court found that the evidence was recorded in the case titled: Sagura Begum vs. Bobby and Others. The validity of the driving licence mark `A’ has been proved on the record. The contention of the Insurance Company that the vehicle was carrying more than 17 persons was not established and proved on the record. There is, thus, no merit in this appeal which is also rejected. 15. FAO No.424 of 2006, titled: Oriental Insurance Company Ltd. vs. Smt.Sagura Begam & Others, arising out MAC Petition No.107-R/2 of 2004. 16. In this appeal the issue for determination before the learned Tribunal was, whether the driver of 7 the accidented vehicle was holding a valid and effective driving licence? 17. Adverting to evidence on record, the learned Court holds that Ex.RA, which is copy of the driving licence, was in fact valid. One other submission was made on behalf of the Insurance Company that the vehicle was carrying 17 passengers and therefore it was being driven in violation of the terms of the policy which require only 9 passengers to be carried. On this plea, evidence of Mohinder Lal RW-1 and copy of the investigation report Ex.RA was relied upon. In that report, it was alleged that 8 persons are supposed to have been dead and 6 injured. The Court, on a scrutiny of the report, found that it refers to the death of 8 persons only without mentioning the number of injured persons. This report was also not relied upon by the learned Court for the reasons that the Surveyor has not been produced in evidence to prove this report. The Surveyor was the author of this report and therefore was the best person to have proved it. Referring to the evidence of Vinod Kumar RW-2, the Court again finds that it does not establish violation of the policy. This appeal is also devoid of merit and is dismissed. 18. FAO No.423 of 2006, titled: Oriental Insurance Company Ltd. vs. Smt.Sagura Begam & Others, arising out of MAC Petition No.106-R/2 of 2004. 19. Adverting to this appeal, again I find that the evidence is similar to that in FAO No.424 of 2006 8 which I need not reiterate or reproduce here. This appeal is also dismissed for the reasons as held by me in FAO No.424 of 2006. 20. Similar issues with respect to the liability of the Insurance Company have been framed, namely, (a) maintainability of the petition as pleaded by respondent No.4 before the Tribunal below, (b) whether the driver was not in possession of valid and effective driving licence (c) whether at the time of accident the vehicle was being driven in contravention of terms and conditions of the Insurance Policy. 21. In the totality of the facts and circumstances of the case, what this Court finds is that in five petitions, either the evidence is discrepant or vital issues have been abandoned as not pressed. In these circumstances it cannot be said that the learned Tribunal below has erred in reaching its conclusion. It does not stand to reason that the important settled issues on which the Insurance Company seeks exoneration, have been given up and then agitated in some cases. Contradictory finding on the same issues though in different cases but with respect to the same incident does not promote the course of justice. 22. Before parting with the appeals, I must note in fairness the submissions made by learned counsel appearing for the appellant that the claimants have not been able to establish their case as payment of fare 9 has not been proved on the record of the case. Learned counsel also submits that the driver is also not proved to be possessed of a valid driving licence. Adverting to the first contention, all I need say is that it was never an issue in dispute nor there was any issue framed for determination of this point. The driver admittedly died in the accident. In case they had paid any fare, they were the best witnesses to have stated about this fact. In these circumstances, this submission cannot be accepted. 23. On the other aspects, as I have noticed, the vital issues have been abandoned in one case are sought to be pressed in the other appeals. I do find it strange that the Company does not prove this issue in a case arising out of the same accident and seeks adjudication of the same in other cases. This contradictory stand of the Company, appellant herein, cannot be accepted. Moreover, the record of the other appeals shows that the driver was in possession of a licence of Light Transport Vehicle. Appeals are dismissed. No order as to costs. All interim orders are vacated. All miscellaneous applications are disposed of. October 15, 2011. (Dev Darshan Sud) (aks) Judge.