(Sanjay Karol, J.) (Oral) - Mr. Vivek Thakur, learned Counsel for the appellant/claimant has instructions to submit that he does not press this appeal, as such, it is dismissed as not pressed.

FAO No. 436 of 2004

2.The present appeal arises out of the impugned Award dated 9.9.2004 passed by the Motor Accident Claims Tribunal, Bilaspur, H.P. in M.A.C. Case No. 94 of 2001 titled as Durgi Devi v. The New India Assurance Company Ltd., and others, awarding a sum of Rs. 2,52,000/- as compensation to the claimant.

3.The present appeal has been filed only by the New India Assurance Company Limited on the ground that the liability could not have been fastened upon the Assurance Company for the reasons that the deceased was undisputedly a gratuitous passenger and in view of the breach of conditions of the Insurance Policy, no liability could have been fastened on them.

4.On 11.6.1996, a Tractor bearing No. HP-23-2644 met with an accident at a place known as Paniala, District Bilaspur, H.P., due to which Shri Tilak Raj, an occupant died on the spot. Claimant Smt. Durgi Devi, respondent No. 1 herein filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of a sum of Rs. 10 lacs. The original owner Shri Gian Chand was arrayed as respondent No. 4, who filed his written statement averring that the vehicle in question stood sold to Shri Kamlesh Kumar on 7.6.1996. The Tribunal impleaded said Shri Kamlesh Kumar as respondent No. 2, who filed a separate written statement disputing that he had purchased the vehicle on the date of the accident and in fact stated that it was the deceased who was driving the vehicle in question at the time of the accident. In rejoinder, these facts were disputed by the claimant.

5.The appellant, arrayed as respondent No. 1 in the claim petition filed its written statement categorically pleading that the deceased was travelling on the Tractor as unauthorized/gratuitous passenger, as such, it was not liable to indemnify the owner and the policy holder Shri Gian Chand. Even though the driver of the Tractor was arrayed as respondent No. 3 but, however, his name was not disclosed as the same was within the knowledge of the owner of the vehicle.

6.Based on the pleadings of the parties, the Tribunal framed the following issues :-

1. Whether Shri Tilak Raj had suffered injuries on account of rash and negligent driving of driver of tractor No. HP-23-2644 ?

2. If issue No. 1 is proved to what amount of compensation and from whom is the petitioner entitled to ? OPP

3. Whether Shri Tilak Raj had died on account of his own rash and negligent driving of tractor No. HP-23-2644 ? OPR2

4. Whether Shri Gian Chand had sold the tractor to respondent No. 2 Shri Kamlesh Kumar on 7.6.1996 and had delivered possession thereof ? OPR-4

5. Whether the driver of tractor No. HP-23-2644 had not been in possession of a valid and effective driving licence at the time of the accident, if so, with what effect ? OPR-1

6. WHether the claim petition is not maintainable in the present form ? OPR-1

7. Whether Shri Tilak Raj was a gratuitous passenger in tractor No. HP-23-2644, if so, with what effect ? OPR-1.

8. Relief.

7.Appreciating the material on record (oral and documentary), the Tribunal found that the identity of the driver had not been disclosed by the registered owner and there was no evidence to prove that it was deceased Tilak Raj who was driving the vehicle in question or the accident took place due to his negligence. The Tribunal also held that there was no evidence to prove that the deceased was a gratuitous passenger.

8.On issue No. 2, the Tribunal determined the amount of Rs. 2,50,000/- as compensation payable to the claimant.

9.On issue No. 4, it was found that there was no cogent and reliable evidence to establish that respondent No. 4 Shri Gian Chand had actually transferred the vehicle to Shri Kamlesh Kumar, respondent No. 2.

10.The liability to pay the compensation was fas