FAO No. 503 of 1994 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: February 17,2010 (1) FAO No. 503 of 1994 (O&M) The Oriental Insurance Co. Ltd. .. Appellant v. Anand Kumar and others ..Respondents. (2) FAO No. 504 of 1994 (O&M) The Oriental Insurance Co. Ltd. .. Appellant v. Anand Singh and others ..Respondents. (3) FAO No. 505 of 1994 (O&M) The Oriental Insurance Co. Ltd. .. Appellant v. Harish Kumar and others ..Respondents. (4) FAO No. 506 of 1994 (O&M) The Oriental Insurance Co. Ltd. .. Appellant v. Dr. Ved Parkash and others ..Respondents. (5) FAO No. 507 of 1994 (O&M) The Oriental Insurance Co. Ltd. .. Appellant v. Munia Devi and others ..Respondents. FAO No. 503 of 1994 [2] (6) FAO No. 508 of 1994 (O&M) The Oriental Insurance Co. Ltd. and another .. Appellants v. Saroj and others ..Respondents. (7) FAO No. 509 of 1994 (O&M) The Oriental Insurance Co. Ltd. and another .. Appellants v. Smt. Saroj and others ..Respondents. CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Alok Jain, Advocate for the appellants. Mr. Ramesh Hooda, Advocate for respondent-Krishan Lal. Mr. Amit Rawal, Advocate for the Insurance Company of truck No. HRH-3663. ... Rajesh Bindal J. This order shall dispose of the above mentioned appeals, as the same arise out of a common award dated 8.12.1993, passed by Motor Accidents Claims Tribunal, Rohtak (for short, `the Tribunal'). The Oriental Insurance Company Limited (insurer of Maruti Van No. DDU -9556) has challenged the impugned award, whereby the learned Tribunal has adjudged the negligence of the Maruti Van at 40%, on the ground that the said Maruti Van was being plied in violation of the terms of policy. The facts, in brief, are that on 28.1.1991, Maruti Van No. DDU-9556 was being driven by its driver from Bohar for Tohana. Five other persons were sitting in the van. When the said van reached near village Julana, a truck No. HRH-3663 came from the opposite side and struck against the Maruti Van. As a result of the accident, three persons including driver died at the spot and other received injuries. The learned Tribunal held the negligence of the truck and the van at 60:40, respectively. FAO No. 503 of 1994 [3] Learned counsel for the appellants submitted that the real issue in the present case raised by the Insurance Company regarding the Maruti Van in question being plied in violation of the conditions of policy, has not been considered. A specific objection was raised to that effect in the written statement filed. Even PW1-Abhey Ram (father of deceased-Shamsher), while appearing as PW1 stated so in his cross-examination. This fact was also even mentioned in the FIR. If the aforesaid evidence is considered, the award of the learned Tribunal holding the Insurance Company liable to satisfy the same certainly calls for interference by this Court, as in case of violation of the terms of policy, it would be owner of the vehicle, who would be liable to satisfy the award and not the Insurance Company. On the other hand, learned counsel for the respondents submitted that the plea raised by the Insurance Company in the written statement filed, was quite general. It had taken all possible objections therein. Though in the evidence, they are trying to refer to one line here and there, but no specific issue was framed with regard to the same. On preponderance of the entire evidence on record, the learned Tribunal has reached to a correct conclusion. In fact, even the Insurance Company realised before the Tribunal that the vehicle was not being plied as a taxi and that was the reason that this was not pressed even at the time of framing of issues or even at the time of arguments, as the only ground pressed was regarding the driving licence of the driver. The author of the FIR, who was merely a passer by, could not possibly know as to whether the passengers sitting in the Maruti Van had hired the same for payment or merely it was borrowed from a friend, which is the case set up by the claimants. The prayer is for dismissal of the appeals. Heard learned counsel for parties and perused the relevant referred record. Reliance of learned counsel for the Insurance Company on the contents of the FIR, wherein it is mentioned that the vehicle was engaged by the occupants thereof as a taxi cannot possibly be considered as a trust worthy evidence for the reason that undisputedly, the FIR was registered by a passer by, who could not possibly state that the vehicle was engaged as a taxi by the occupants thereof. Even if for arguments' sake, it may be considered that he was in knowledge of the fact that the said vehicle was otherwise being plied as a taxi, but on the basis of material placed on record, it cannot be concluded that at the time of accident, the same was being plied as a taxi for hire and reward. PW6- Harish Kumar, who was one of the occupants of the Maruti Van, specifically denied the suggestion in his cross-examination that the Van was engaged as taxi, rather, it FAO No. 503 of 1994 [4] was stated by him that it was borrowed from a friend. In addition to this, in my opinion, there is no other relevant material evidence, which could enable this court to reach to a finding that the award of the learned Tribunal deserves to be interfered with on the ground that the Insurance Company has been wrongly held liable to satisfy the award, as there was violation of the terms of policy. This issue, in fact, was not even pressed before the Tribunal, as is evident from the impugned award. For the reasons mentioned above, I do not find any merit in the present appeals. Accordingly, the same are dismissed. (Rajesh Bindal) Judge February 17,2010 mk