The main legal point established in the judgment is that the insurance company cannot take a different stand in law from the one taken in the pleadings on facts before the tribunal, and its conduct may estop it from challenging awards solely on legal grounds.

Honble Mr. Justice Muzaffar Hussain Attar, Judge

1. 2nd of September, 1999 proved to be most unfortunate day for the respondents/claimants as in the case of two sets of claim petitions the parents of the claimants lost their lives and some other claimants suffered injuries because of accident of vehicle bearing no. HP-46-0645 near Pati Nallah Barmour, (H.P.) which was stated to be negligently driven by the driver of the vehicle. The claim petitions were filed under Sections 166 and 140 of Motor Vehicles Act, 1988 (for short "Act of 1988") before the Motor Accidents claim Tribunal, Baderwah, (for short MACT).

2. In the claim petitions, it was pleaded that death was caused because of negligent driving of the driver. Learned MACT passed an award of Rs. 50,000/- under Section 140 of the Act of 1988. The award passed in the claim petition was not challenged by the appellants.

3. The appellant-insurance company took factual stand at paragraph D and E under the caption of preliminary objections filed before the learned MACT. The said paragraphs are reproduced as under:

d. That at the time of alleged accident the vehicle was over loaded as much as roof of the vehicle was full with passengers and even the stairs-foot rest and laps of the sitting passengers were accupied and full and this being a violation of the terms and conditions of the insurance policy, breach of conditions of route permit and also contrary of the Motor Vehicle Act and its Rules. In these circumstances, the insurance company cannot be held liable to pay any compensation or to indemnify the insured in such the insured and its driver are liable for payment of compensation if, any for his illegal and criminal behaviour.

e. That the vehicle under its route permit was permitted to carry only passengers in accordance to the sitting capacity of vehicle including Driver and Conductor. The insurance company have undertaken to indemnify the insured to the extent of liability in respect of the only passengers in accordance to the sitting capacity, if there are no violations or breach of conditions of the insurance policy and route permit. Otherwise also the liability of the insurance company, if any, is limited to the extent and not beyond.

4. This is the stand which is taken by the appellant- insurance company in all the claim petitions.

5. On the pleadings of the parties in one set of the claim petition following issues were framed:

1/- Whether on 2.9.99 deceased Mohan Lal died at village Pati Barmohar (HP) due to accident while traveling in vehicle No. HP-46-0645 from Barmor to Chamba, which was being driven by its driver rashly and negligently? OPP

2/- To what amount of compensation the petitioners are entitled and from whom? OPP

3/- Whether the vehicle was over loaded at the time of accident and the driver of said vehicle has breached the conditions of insurance policy? OPR1

4/- Relief.

6. And in another set of claim petitions following issues were framed:

1/- Whether load carrier bearing No. HP-46-0645 met with an accident at Barmour while coming from Chamba due to rash and negligent driving, resulting in death of Uttma Devi alais Uttra Devi who was also traveling in the same along with other passengers? OPP

2/- In case issue No. 1 is proved to be affirmative, to what extent petitioners are entitled to compensation and from whom? OPR

3/- Whether the ill fated load carrier was permitted to carry passengers if so, what is its effect? OPR1

4/- Whether petitioners are disentitled to the claim of compensation for breach of conditions of insurance policy and Motor Vehicle act as mentioned in para D and E of objections, filed by respondent no. 1?OPR1

5/- Whether driver of the ill fated load carrier was driving it without a valid driving licence, if so what is its effect?OPR1

7. Claimants alone lead evidence in support of their claim to prove the aforementioned issues whereas insurance company and the owner did not lead any evidence to prove the issues of which burden was on them.

8. Lear