IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 281 of 2006 The New India Assurance Company Ltd. …Appellant Versus Smt. Neema Bhandari & others .. Respondents Sri T.A. Khan, Advocate, for appellant-insurance company Sri Ganesh Kandpal, holding brief of Sri B.D. Upadhyay, Advocate, for respondent no. 1 Sri B.S. Adhikari, Advocate, for respondents no. 3 & 4 Sri Sarvesh Agrawal, Advocate, for respondent no. 5 Dated: May 5, 2008 Hon’ble B.C. Kandpal, J. By way of this appeal, under Section 173 of Motor Vehicles Act, 1988, the insurance company i.e. insurer of offending vehicle in question has challenged the impugned judgment and award dated 24.11.2005 passed by Motor Accident Claims Tribunal/District Judge, Bageshwar, in Motor Accident Claim Petition No. 8 of 2005, Smt. Neema Bhandari and another versus New India Assurance Company Limited. Brief facts of the case as per the claim petition are that on 18.2.2005 at about 10.30 p.m. while the driver of Vehicle No. UP-25-6630 Sri Govind Singh Bhandari (deceased) was going to Kathgodam from Bageshwar and when the said vehicle reached near Syalidhar-Chaulidhar Almora Police Station, Kotwali Almora, in the meantime, due to technical failure the vehicle got accidental and Govind Singh Bhandari sustained injuries and later on he died. It is alleged that at the time of accident the vehicle was insured with opposite party no. 1- New India 2 Assurance Company Ltd. and opposite party no.2- Sri Rajiv Agrawal was its owner. As per the claim petition the age of deceased at the time of accident was about 25 years and his monthly income was Rs.4,000/- and claimants were his dependants. The claimants claimed a sum of Rs.10,00,000/- (Rupees Ten Lacs) as compensation against opposite parties. The opposite party no. 1-New India Assurance Company filed its written statement denying the contents of the claim petition. It has pleaded that since the deceased was himself driving the vehicle and was not the third party, hence the petition is not maintainable. As far as vehicle in question was not driven with valid papers and was also driven against the provisions of insurance policy and Motor Vehicles Act, as such, there is no liability of answering opposite party and petition is liable to be dismissed. The opposite party no. 2-Sri Rajiv Agrawal filed his written statement and admitted that the deceased was employed as a driver on the vehicle in question and died during the course of his employment in a road accident under the employment of answering opposite party. He has also pleaded that since the vehicle in question was insured with opposite party no. 1-New India Assurance Co. Ltd. at the time of accident, therefore, liability of compensation goes on him and instant petition is liable to be dismissed against the answering opposite party. The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim 3 petition. Parties led evidence in support of their cases. The Tribunal after having considered the material available on record and hearing learned counsel for the parties decreed the claim petition in favour of claimants/respondents for a sum of Rs.5,50,000/-, payable by New India Assurance Co. Ltd., along with an interest @ 5% per annum. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-insurance company has filed the appeal before this Court. Heard Sri T.A. Khan, learned counsel for appellant-insurance company, Sri Sarvesh Agrawal, learned counsel for respondent no. 5-owner of offending vehicle in question, Sri B.S. Adhikari, learned counsel for respondents no. 3 & 4, Sri Ganesh Kandpal, holding brief of Sri B.D. Upadhyay, for respondents no. 1 & 2-widow and daughter of deceased and perused the record. It appears from the impugned judgment and award that the Tribunal has recorded a finding while deciding issue no. 1, which runs as follows: “No other view is possible in this regard on basis of the available evidences on record. So contention of complainants/claimants with regard to issue no-1 in all respects acceptable except that this accident was the reason of technical failure in the vehicle.” It is worthy to mention here that the case of the claimants is that the accident took place on account of mechanical fault. It is also the case of 4 the claimants that the deceased himself was driving the Tanker at the time of accident. It is not the case that the accident took place on account of rash and negligent driving of Tanker in question. However, had it been a pleading of rash and negligence, even then the claimants who are the legal heirs of deceased, who himself was driving the Tanker at the time of accident, could not get any benefit of this pleading. There is no evidence available on record which may suggest that the accident had taken place otherwise except that the mechanical defect in the vehicle. Therefore, the finding recorded by the Tribunal in this regard is absolutely perverse and against the evidence on record. It appears that the Tribunal has recorded the finding on whimsical ground which cannot be held justified in any manner. Further, the Tribunal has ignored this aspect that the claim petition was filed on behalf of legal heirs of the deceased, who himself was driving the Tanker at the time of accident. The claimants thus cannot get any benefit on account of death of the deceased who himself was driving the Tanker at the time of accident. It appears to me that the forum which was available to the claimants is the court of Workmen Compensation Commissioner, not the Tribunal under the Motor Vehicles Act. The claimants could have moved the petition for compensation before the Workmen Compensation Commissioner. The Tribunal also fell in error in ignoring this aspect and deciding the claim petition in a cursory manner. 5 Learned counsel for the respondents-claimants has pointed out before me that the insurance company did not take this plea before the Tribunal, therefore, the Tribunal could not decide this aspect. I fail to appreciate this argument advanced by learned counsel for the respondents-claimants. This point goes to the root of jurisdiction of the court, therefore, in case, if this plea has not been taken by insurance company before the Tribunal, even then it was the duty on the part of the Tribunal to have taken into consideration this aspect and decided the claim petition in accordance with law. The counsel for insurance company/appellant further submitted that the insurer of vehicle is not liable to pay the amount of compensation as the Tanker in question was carrying a gratuitous passenger at the time of accident hence the vehicle was being driven against the terms of policy. The record also reveals that in the offending Tanker in question, two persons namely Jagdish Singh and Beche Lal were also travelling. Out of these two persons, Jagdish Singh was cleaner in Tanker in question and Beche Lal was travelling as a passenger. As the insurance company has not taken this plea before the Tribunal and no evidence has been adduced by the insurance company before the Tribunal in order to establish this fact that Beche Lal was travelling as gratuitous passenger in the Tanker in question at the time of accident. The insurance company also did not press any issue on this point before the Tribunal. Therefore, I am of the view that the Tribunal has rightly ignored this aspect in deciding the claim petition. The appellant 6 is also debarred from taking this plea at this stage in the absence of any specific pleading taken by the insurance company in its written statement before the Tribunal. However, on assessment of the evidence, I come to the conclusion that it is a fit case which should be remanded back before the Tribunal in order to decide the claim petition afresh in the light of observations made by this Court in the body of judgment. It is worthy to mention that the Tribunal in order to come to a definite conclusion should have summoned Beche Lal and Jagdish Singh, as witnesses, who are still surviving, so that the clear picture could have come before the Tribunal, but the Tribunal has shirked from the responsibility by ignoring this aspect also. I, therefore, direct that the Tribunal should take into consideration all the aspects of the matter and thereafter should record the cogent and reasonable finding with regard to this aspect as to whether the accident had taken place on account of mechanical defect or otherwise. Accordingly, the appeal is allowed. The impugned judgment and order passed by Motor Accident Claims Tribunal in M.A.C. Case No. 8 of 2005, is hereby set aside. The matter is remanded back before the Tribunal in order to decide the claim petition afresh in the light of observations made by this Court in the body of judgment. (B.C. Kandpal, J.) SP