FAO No.5533 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5533 of 2009(O&M) Date of decision: 11.12.2009 New India Assurance Co.Ltd. .....Appellant Versus Anil Kumar and others `......Respondents CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Paul S. Saini, Advocate for the appellant-Insurance Company. Rakesh Kumar Garg, J. This appeal has been filed by the New India Assurance Company Limited challenging the impugned award dated 4.9.2009 passed in MACT Case No.57 of 2008. The claim petition was filed by the claimant-Anil Kumar seeking compensation on account of injuries suffered by him in an accident caused due to rash and negligent driving of driver of offending vehicle i.e. Tanker No.HP-20-A-8950. As per the averments, on 16.3.2008 deceased Ram Singh was travelling in Alto Car No.PB-16-C-0176 along with one Nirmal Singh which was being driven by Anil Kumar (owner-cum-driver) and when they reached in the area of village Darauli at about 9 p.m on Ropar Nangal road near the Temple of Baba Balak Nath and coming from Nangal side, the offending vehicle which was going ahead of the said car and was being driven by Ravi Dutt (driver) in a rash and negligent manner and at a high speed applied brakes without any requirement and signal of the said offending vehicle in the middle of the road as a result of which Alto Car No.PB-16-C-0176 dashed the said vehicle and Ram Singh and other FAO No.5533 of 2009(O&M) 2 persons travelling in the said car received injuries. Injured were taken to the Civil Hospital, Anandpur Sahib. However, Ram Singh died on the way. It was further averred that the accident had entirely taken place due to rash and negligent act and driving of respondent No.7. FIR No.26 dated 17.3.2008 under Sections 279, 337, 338, 427 and 304-A IPC was registered regarding the said accident in the Police Station Nangal. Thus, the claimants filed the claim petitions as aforesaid. Driver of the offending vehicle filed written statement denying the averments of the claim petition and pleaded that no accident had taken place with the offending vehicle and a false FIR was registered against him and therefore, he was not liable to pay any compensation. Owner of the offending vehicle filed separate written statement taking the same stand as taken by the driver in his written statement and prayed for dismissal of the claim petition. The appellant contested the claim by filing its separate written statement raising various preliminary objections including that the claim petition was not maintainable as no accident had taken place with the offending vehicle. It was also submitted that the drivers of the vehicles i.e. Tanker No.HP-20-A-8950 and Alto Car No.PB-16-C-0176 were not having a valid and effective driving licence at the time of alleged accident. The owner of the offending vehicle was not having any fitness certificate and route permit at the time of alleged accident and the claim petition was bad for non-joinder of necessary parties. On merits, all the averments of the claim petition were denied and dismissal of the petitions was prayed. Anil Kumar, owner cum driver of the Alto Car filed separate written statement raising various preliminary objections. On merits, the accident was admitted. However, it was stated that he was not at fault in the said accident. It was further pleaded that the accident had taken place FAO No.5533 of 2009(O&M) 3 due to the sole negligence of driver of the offending vehicle i.e. Tanker No.HP-20A-8950. National Insurance Company (i.e. insurer of Alto Car) raised various preliminary objections and submitted that the accident had not occurred due to negligence and fault of Alto Car No.PB-16-C-0176. The driver of the said car was not having a valid and effective driving licence at the time of alleged accident. On merits, it was admitted that the accident had taken place but the same was due to the fault and negligence of the tanker and hence, no liability qua the accident in question was pleaded. It may be relevant to mention that on the pleadings of the parties, the following issues were framed by the Tribunal: “1. Whether the claimant sustained injuries in a motor vehicular accident that occurred on 16.3.2008 at about 9.00 P.M in the area of village Darauli on Ropar-Nangal Dam Road, PS Nangal, due to the rash and negligent driving of Tanker No.HP-20-A-8950 by its driver i.e. respondent No.1?OPP 2. Whether the claimant is entitled to receive the compensation on account of the injuries suffered by him in the said accident? If so, to what extent and from whom? OPP 3. Whether the driver of Tanker No.HP-20-A-8950 i.e. respondent No.1 was not holding a valid and effective driving licence at the time of alleged accident? OPR3 4. Whether the owner of the offending vehicle i.e. Tanker No. HP-20-A-8950 was not holding a valid route permit and fitness certificate of the said vehicle, at the time of accident? OPR3” 5. Whether the claim petition is bad for non-joinder and misjoinder of necessary parties? OPR FAO No.5533 of 2009(O&M) 4 6. Whether the claim petition is not maintainable in the present form? OPR 7. Relief.” The Tribunal on appreciation of evidence held that the accident had taken place due to the rash and negligent driving of tanker No.HP-20-A-8950 by its driver on 16.3.2008 and Ram Singh died due to the injuries sustained by him in the said accident and Nirmal Singh and Anil Kumar received injuries. No other issue was claimed by the parties. On the basis of the evidence produced on record by the owner and driver of the offending vehicle, it was held that it cannot be said that driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident and that owner of the offending vehicle was not holding a valid route permit and fitness certificate. Resultantly, the claim petitions were allowed and it was held that the claimants were entitled to the compensation. Learned counsel appearing on behalf of the appellant has challenged the impugned award only on the ground that the Tribunal has erred at law while holding that the accident in question took place due to rash and negligent driving on the part of the driver of the tanker. According to the learned counsel for the appellant, from the evidence on record, it is clearly made out that the Alto Car had hit the tanker from behind resulting in the accident and therefore, at the most it was a case of contributory negligence. In support of his case, learned counsel for the appellant has argued that the driver of the Alto Car which was following the tanker should have maintained proper and safe distance between the tanker and his car. However, since he was not maintaining any distance from the tanker which was going ahead, he could not control the car and resultantly FAO No.5533 of 2009(O&M) 5 dashed it against the tanker from behind and thus, there was absolutely no fault whatsoever on the part of the driver of the offending vehicle in causing the accident and thus, the findings of the Tribunal in this regard are wholly incorrect and are unsustainable in the eyes of law. Learned counsel for the appellant has placed on record certified copy of the order dated 24.8.2009 whereby permission under Section 170 of the Motor Vehicles Act, 1988, was allowed to the appellant. Learned counsel for the appellant has also pointed out that the appellant is competent to challenge the findings of the Tribunal on the issue of negligence on the basis of permission granted to the appellant by the Tribunal under Section 170 of the Motor Vehicles Act and thus, prayed that the impugned award be set aside. I have heard learned counsel for the appellant and perused the impugned award. From the perusal of the impugned award, it is crystal clear that the argument raised by the appellant before this Court is not supported from the pleadings of the appellant as submitted in its written statement. No such plea of contributory negligence/negligence of the driver of the Alto Car was pleaded by the appellant and as stated in the foregoing paragraphs, the averments in the claim petition were denied. The appellant had taken various legal objections with regard to validity of driving licence and the route permit of the offending vehicle. Not only this, issues in this case were framed on 13.3.2009 whereas application under section 170 of the Motor Vehicles Act was allowed by the Tribunal vide its order dated 24.8.2009 on the basis of no objection made by the learned counsel for the claimant on the aforesaid application. In spite of the aforesaid permission granted, neither any pleadings were amended nor any issue was claimed in this regard. So much so, even during the course FAO No.5533 of 2009(O&M) 6 of arguments, the objection taken by the appellant was that no accident took place with the offending vehicle and the plea of contributory negligence/negligence of the driver of Alto Car was not even raised and thus, issues were held against the appellant upon appreciation of evidence. Thus, I find no merit in this appeal. Dismissed. December 11, 2009 (RAKESH KUMAR GARG) ps JUDGE