IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO Nos. 466 of 2002 and FAO No.20 of 2003 Decided on : 3rd March, 2009 FAO(MVA) 466 of 2002 National Insurance Company Limited …Appellant. Versus Kaushlya Devi and others …Respondents. FAO(MVA) No.20 of 2003 National Insurance Company Limited …Appellant Versus Asha Devi and others ….Respondetns Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Deepak Bhasin, Advocate in both the appeals For the respondents : Mr. Lovnesh Kanwar, Advocate in FAO No.446 of 2002 for respondents No. 1 to 4. Mr. Ajay Chandel, Advocate, for respondents No.1 to 4 and Mr. B.K. Malhotra, Advocate for respondent No.7. in FAO No.20 of 2003. Surjit Singh, Judge( Oral ) By this common judgment we propose to dispose of two appeals, i.e. FAO (MVA) Nos.466 of 2002 and 20 of 2003. Both the appeals have been filed by National Insurance Company Limited against two separate awards of Motor Accident Claims Tribunal, Mandi. 2. We may first notice the relevant facts. Respondent Dr. R.K. Puri (in both the appeals) was the owner of Tipper No.HR-37- 2903. He had employed late Shri Kishan Chand as driver and late Shri Whether reporters of the local papers may be allowed to see the judgment? …2… Rup Lal as conductor for plying the Tipper. On 2.7.1998, the said tipper, while being plied on the road near Aut in Mandi District, met with an accident. Both Kishan Chand and Rup Lal, aforesaid, died in the accident. Two separate petitions were filed seeking compensation for their deaths by their respective legal representatives. Kishan Chand’s legal representatives, in their petition, Under Section 166 of the Motor Vehicle Act, stated that at the time of accident vehicle was being driven by Rup Lal, who had been employed as conductor by Dr. R.K.Puri, the owner and that he was driving the vehicle in a rash or negligent manner and because of that the accident had taken place. They claimed compensation both from the owner Dr. R.K. Puri and National Insurance Company Limited, with which the vehicle was insured for third party risk. 3. Dependents of Rup Lal, on the other hand, alleged that the vehicle was being driven by Kishan Chand, employed as driver by the owner of the vehicle and his driving was rash or negligent and that caused the accident. 4. It appears from the record that the learned Tribunal consolidated the two cases and framed common issues, arising out of the pleadings in both the cases. Later on, one of the two petitions viz. the petition filed by the legal representatives of Rup Lal, was dismissed in default. In the other petition, parties led evidence. Learned Tribunal gave the finding that the vehicle was being driven by Rup Lal in a rash or negligent manner and awarded compensation to the legal representatives of Kishan Chand. 5. Later on dependents of Rup Lal moved the Tribunal for restoration of their petitoin. Their prayer was granted. The Tribunal awarded compensation to the dependents of Rup Lal also, holding that in view of the judgment delivered by this Court in Kokla Devi Vs. Chet …3… Ram and another, 2002 ACJ 650, the said legal representatives were entitled to claim compensation. Learned Tribunal, however, did not accept the plea of the legal representatives of Rup Lal that the vehicle was being driven by Kishan Chand and held that in view of the finding in the other petition, i.e. the petition filed by the legal representatives of Kishan Chand that the vehicle was being driven by Rup Lal, there was no escape from the finding that Rup Lal’s dependent’s plea about the person, who was driving the vehicle, was not correct. 6. We have heard the learned counsel for the parties. Both the petitions were filed under Section 166 of the Motor Vehicle Act. Neither of the two petitions was under Section 163-A of the said Act. Learned Tribunal has, however, granted compensation to the legal representatives of Rup Lal, under Section 163-A of the Motor Vehicles Act. We are saying so, because the learned Tribunal has though not stated in its award that the compensation is being granted, under Section 163-A of the Motor Vehicle Act, yet it has applied the ratio of Kokla Devi’s case (supra), which was under Section 163-A of the Motor Vehicle Act. Had the learned Tribunal not pressed into service the said precedent, petition filed by Rup Lal’s dependent could not have been allowed, when there was a specific finding that Rup Lal himself was responsible for causing the accident by his act of rash or negligent driving of the vehicle. Grant of compensation by the Tribunal, under Section 163-A of the Motor Vehicles Act, is contrary to the claim of the dependents of Rup Lal, who specifically stated that income of Rup Lal was more than Rs.40,000/- per annum and the accident took place because of rash or negligent driving of the vehicle by Kishan Chand, who had been employed as driver by the owner. 7. Also, we find that the learned Tribunal was not justified in arriving at the conclusion in the petition of dependents of Rup Lal that …4… the vehicle was being driven by Rup Lal and not by Kishan Chand, on the basis of evidence recorded in the other petition, especially when the dependents of Rup Lal did not have any opportunity to cross- examine the witnesses examined in the said other case. Also, none of the respondents in the petition, instituted by the dependents of Rup Lal, had disputed the plea of the petitioners that the vehicle was being driven by Kishan Chand. 8. In view of the above stated position, we are of the firm view that both the petitions were required to be enquired into/tried together by the learned Tribunal. In any case, the evidence recorded in one case could not have been read into the other nor could the finding of fact recorded in one case could have been used as finding of fact in the other case. Since the question as to who was driving the vehicle at the relevant time, affected the claimants in both the petitions, it was essential that the two petitions were consolidated and decided together. 9. Consequently, we allow both the appeals, set aside the awards in both the petitions and remand the petitions to the Motor Accident Claims Tribunal, Mandi, to try/decide the same afresh by consolidating them. Parties are directed to appear before the learned Tribunal on 6.4.2009. Registry is directed to ensure that the record of petitions, with a copy of this judgment reaches the learned Tribunal before the aforesaid date. Both the appeals stand disposed of. ( R.B. Misra ), J March 3, 2009 (ss) ( Surjit Singh ), J