JUDGMENT :

YASHVIR SINGH RATHOR , J. 

1. This appeal has been instituted by the owner of the offending vehicle bearing No.DL-1P-5915 against the award dated 28.08.2004 vide which he along with driver has been held liable to pay compensation to the claimants on account of death of Avtar Singh and Insurance Company has been absolved of its liability to pay any compensation to the claimants.

2. Case of claimants is that on 03.11.2002, Avtar Singh (since deceased) was coming from Ladwa and was going towards his village Niwarsi on motorcycle No.HR-06-5899, which was being driven by him at a normal speed and on the left side of the road. A bus bearing registration No.DL-1P-5915 (hereinafter referred to as ‘offending vehicle’) was going ahead of his motorcycle which was being driven by respondent No.1 in a rash and negligent manner. Avtar Singh (since deceased) was trying to overtake the bus and he had blown horn for this purpose and thereafter, respondent No.1-driver gave a signal to him to overtake the bus. However, when Avtar Singh was in the process of overtaking the bus, respondent No.1 suddenly turned his bus towards right side, as a result of which bus hit the motorcycle and due to impact of the bus, Avtar Singh suffered multiple injuries including head injury. The accident was witnessed by Gurdial Singh and Jagtar Singh, who took him to the hospital for treatment but he died during the treatment. FIR No.203 dated 05.11.2002 under Sections 279, 337 and 304-A of IPC was registered regarding the accident in question at Police Station Ladwa against respondent No.1. The claim petition was filed by the wife, minor children and mother of the deceased, claiming compensation on account of death of Avtar Singh.

3. Respondents No.1 and 2 filed their joint written statement and opposed the petition preliminarily on the grounds of locus standi, mis-joinder and non-joinder of the necessary parties and cause of action. It is submitted that the vehicle was insured with respondent No.3 at the time of accident and respondent No.1 was having a valid and effective driving licence to drive the vehicle in question. Material contents of the petition with regard to the manner of accident have been refuted to be wrong. Rather, it is submitted that no accident had taken place with the bus in question. It is further submitted that the motorcyclist himself was rash and negligent and he came to the wrong side of the road without blowing any horn and dashed his motorcycle in the bus from the behind and no accident was caused by respondent No.1. Dismissal of the claim petition has been sought.

4. Respondent No.3-Insurance Company in its written statement has alleged that there was violation of terms and conditions of the policy and provisions of Motor Vehicle Act. The driver was not having a valid and effective driving license and Insurance Company is not liable to indemnify the insured. It is further submitted that bus in question was not insured with the answering respondent at the time of accident as is clear from the cover note supplied by respondents No.1 and 2 along with their written statement and the petition against respondent No.3 is thus not maintainable.

5. From the pleadings of parties, following issues were framed:-

1. Whether the accident in question resulting in death of Avtar Singh, aged 35 years, was caused on dated 03.11.2003 at about 7.00 A.M. in the area of village Niwarsi due to rash and negligent driving of bus bearing no. DL-1P-5915 by its driver Jaswant Singh @Guddu-respondent no. I or of motor cycle no. HR- 06-5899 by its driver Avtar Singh (since deceased) or of both? OPP

2. If issue no. 1 is proved, whether the claimants are entitled to compensation, if so, how much and from whom? OPP

3. Whether the claimants have no locus standi to file and maintain the claim petition? OPR

4. Whether the petition is not maintainable in the present form? OPR

5. Whether respondent no. I was not holding a valid and effective driving license at the time of ac