Point of law: Accident claim – Compensation - Involvement of the trolley being used for commercial purpose and having an opportunity of cross-examination of the witnesses produced before the Tribunal, cannot come up in defence and argue that the oral evidence available on record ought not to have been considered by the Tribunal for want of pleadings of the claimants or the owner as such.

JUDGMENT :

Attau Rahman Masoodi, J.

Heard learned counsel for the appellants and Miss Pooja Arora holding brief of Sri S.C. Gulati, learned counsel for the insurance company.

1. These two appeals filed under Section 173 of Motor Vehicles Act involving a common question of law were heard together and are decided by a common judgement. Both the appeals have arisen out of the case of death in the same motor accident. In FAFO No. 305 of 2010, a compensation of Rs. 80,000/-awarded by the Tribunal is the subject matter of dispute whereas in FAFO No. 230 of 2010, the amount involved is restricted to Rs. 67500/-.

2. In both the cases the liability for payment has been fixed exclusively upon the appellant,

although the tractor involved in the accident bearing No. UP34-A-4209 belonged jointly to several other persons as per the registration certificate. Amongst the owners, the appellant alone was chosen to be impleaded as a defendant in the claim petitions. The appellant by means of the present appeals has disputed the liability on the ground that his vehicle i.e. tractor no. UP34-A-4209 was duly insured and was driven by a person possessed with a valid driving licence. Therefore in absence of any violation of the insurance policy, the liability ought to have been fixed upon the insurance company was the case set up by the appellant.

3. The brief facts of the case are that the claimants in both the claim petitions have averred involvement of two vehicles in the accident and both were insured by one and the same insurance company i.e. New India Assurance Company. There was no mention of a trolley attached to the tractor in so far as the facts set out in the claim petitions are concerned. Likewise the written statements filed by the appellant while disputing the accident did not mention of any trolley attached to the tractor. It was simply pleaded by the owner that the tractor was plied in terms of the insurance policy.

4. The insurance company in the written statements filed at the initial stage also did not clarify the position as regards the attachment of trolley and it is in these circumstances that the claim petitions proceeded for framing of issues and thereafter the evidence was led. During the course of evidence when PW-1 Vijay Prakash was examined and cross-examined, the trolley attached to the tractor surfaced and it was stated that the same was loaded with 'Jhankhar' (dead wood of Arhar).

5. It is during the course of evidence that the New India Assurance Company sought amendment in the written statements which were allowed. Thus, two paragraphs viz. 28A and 28B came to be added in the pleadings which read as under:

"28A. The troley was attached with the alleged tractor as per version of the alleged claimants and alleged F.I.R. Some persons were also sitting on the tractor although the seating capacity of tractor is only one for driver only. The same was not also used for agriculture purpose at the time of disputed accident and was used for hire and reward. Troley was also unregistered, uninsured, without permit and fitness u/s 66, 56, 39, 61 and 146 MV Act. The same cannot be used and tractor troley comes under the definition of goods vehicle. As such driver possessing transport vehicle hence can only drive the same. The driver was also not holding validan defective driving licence. As such the same was deliberately used contrary to MV Act and terms and condition of policy if any and under no circumstances insurance co.-OP No. 3 is liable to pay any compensation and the same is not maintainable against answering OP.

28B. That as per allegations mentioned in claim petition the alleged Smt. Raj Rani was pillion rider on alleged M/cycle UP32 AL/6706 (gratuitous passenger) for which there is no insurance and no premium been charged for covering the risk of pillion rider. As such the answering opp. Party is also not liable to pay any compensation."

6. In the background of pleadings, as aforesaid, the evidence went on to be recorded before t