Hon’ble B.S. Verma, J. (Oral)

This appeal, preferred u/s 173 of the Motor Vehicles Act, 1988, is directed against the judgment and award dated 22.09.2006 passed by M.A.C.T./District Judge, Tehri Garhwal in M.A.C. No.27 of 2005, Smt. Laxmi Devi and others vs. Manager United India Insurance Company & another, whereby the claim petition has been rejected.

2. Brief facts of the case are that on 11.8.2004 deceased Sahab Singh was going in Mahindra Pickup bearing no.WB 37-5756 to do work in company. The aforesaid vehicle met with an accident due to rash and negligent driving by its driver resulting death of Sahab Singh. The deceased was 31 years of age. He was working in a company and also used to do agriculture work and from that he was earning Rs.3,000/- per month. Appellant no.1 is wife, appellant no.2 is mother and appellant nos.3, 4 and 5 are sons of the deceased. In the claim petition, the claimants have admitted that the owner of the vehicle has paid Rs.1,00,000/- lacs + Rs.3,000/- as funeral expenses to the claimants. The claimants filed claim petition for a sum of Rs.18,64,000/- as compensation against the Insurance Company.

3. The opposite party no.1, Insurance Company, filed its written statement and alleged that the claim petition is not maintainable as the compensation has been paid to the claimants by the owner of the vehicle. Besides this, the Insurance Company has also alleged that the vehicle was being driven against the conditions of insurance policy and that other documents like registration, permit, insurance policy were invalid at the time of accident and the claim petition is liable to be dismissed.

4. The opposite party no.2, owner of the vehicle, who was made party later on, also filed his written statement and denied the contents of the claim petition. He admitted that he paid Rs.1,00,000/- to the claimants and Rs.3,000/- for funeral expenses on humanitarian ground. He also alleged that the dispute was settled between the parties and that the claim petition is liable to be dismissed.

5. The learned tribunal, on the basis of pleadings of parties, framed following issues for consideration:-

i) Whether the accident in question took place on 11.8.5004 at Village Utthad P.O. Pipola Tehsil Jakhanidhar District Tehri Garhwal due to rash and negligent driving of Mahindra pickup No.WB-37-5756 by its driver resulting death of Sahab Singh as alleged?

ii) Whether the driver of the ill-fated vehicle in question was not duly licensed and the owner of the vehicle did not possess valid permit and fitness of the vehicle on the date of accident as alleged by OP insurance company in paragraph nos.7 and 9 respectively of its W.S.? If so, its effect?

iii) Whether the petition is bad for non-joinder of the owner of the vehicle?

iv) To what amount of compensation, if any, are the petitioners entitled?

6. On issue no.1, the tribunal held that the vehicle was being driven rashly and negligently by its driver and decided the issue in favour of the claimants.

7. On issue no.2, it has been held that the driver was having valid driving licence and other papers of the vehicle at the time of accident. But the vehicle was being driven against the insurance policy and permit conditions. The vehicle was insured by the owner only for two persons, i.e., the driver and conductor. The Tribunal has held that the deceased was a gratuitous passenger.

8. Issue no.3 was framed on the objection of the Insurance Company which was decided in negative against the Insurance Company.

9. On issue no.4, it has been held that the claimants have admitted in their claim petition that the claim has been settled between the claimants and owner of vehicle and that the owner has paid compensation to them. Relevant papers, in this regard, were filed by the owner before the Tribunal. Accordingly, the Tribunal held that the owner is not liable to pay compensation in view of compromise arrived at between the parties. With regard to the Insuranc