IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

FAO No. 123 of 2013 . Reserved on: 31.08.2023P Decided on: 28th November, 2023 Lkshami Singh (deceased) through his LRs and another .......Appellants Versus Rakesh Sharma and others ...Respondents Coram t The Hon’ble Mr. Justice Virender Singh, Judge.

Whether approved for reporting?1 Yes.

For the appellanots: Mr. H.C. Sharma, Advocate.

For the respondents: Mr. Anuj Gupta, Advocate for respondents No.1 and 2.

Mr. Deepak Bhasin, Senior Advocate assisted by Mr. Sambhav Bhasin, Advocate for respondent No.3.

Virender Singh, Judge.

Appellants have filed the present appeal, under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘M.V. Act’) against the award dated 26.11.2012 passed by learned Motor Accident Claims Tribunal (III), Shimla District Shimla, H.P. (hereinafter, referred to as the ‘learned MACT’) in MAC Petition No. 68-

1Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

S/2 of 12/2009, titled as Lakshami Singh and another vs.

Rakesh Sharma and others.

2. By way of award dated 26.11.2012, the learned MACT has dismissed the claim petitionH filed by the appellants.

3. The parties, to the present lis, are hereinafter referred to, in the same manner, as were referred to, by the learned MACT.

4. Brief factsu, leading to the filing of the present appeal, before this Court, may be summed up, as under:-

4.1. The petitioners being the parents of Ashwani Kumar have filed the claim petition, under Section 163-A of theh M.V. Act, against the respondents being owner, driver, as gwell as, insurer of vehicle No. HP63-0172 (hereinafter ireferred to as the ‘vehicle in question’).

4.2. The claim petition has been filed on the ground that their son Ashwani Kumar had died in an accident on 09.10.2008, while he was returning back from a marriage party. The accident had taken place within the jurisdiction of Police Station, West Shimla, District Shimla and FIR No. 253 dated 10.10.2008 has been registered against respondent No.2. The age of the deceased has been mentioned as 19 years and he was working as Peon in M.S.

Motors, Tavi Chowk, Totu, Shimla.

4.3. Lastly, it has been mentioned in the petition that the accident had taken place due to rashH and negligent driving of respondent No.2.

5. On the basis of above facts, a prayer has been made to allow the petition and to grant compensation.

6. When put to notice, the claim petition has been contested by the respoundents.

7. Respondents No.1 and 2 have filed their joint reply, in which, they have taken the preliminary objections that the petition is not maintainable, there is no cause of acthion in favour of the petitioners to file the present petition, gas, the vehicle in question was not involved in the accident.

i7.1. On merits, the claim petition has been contested on the ground that Ashwani Kumar had not died in the accident as alleged. They have specifically denied that any accident had taken place with the vehicle in question, as alleged.

8. The Insurance-Company of the vehicle in question has filed its separate reply by taking the preliminary objections that the vehicle in question, at the time of accident, was being permitted to ply in violation of the terms and conditions of the Insurance Policy, petition is not maintainable, the petition has been filed by the petitioners in collusion with respondent No.1. On merits, the contents of the claim petition have been denHied for want of knowledge.

9. Thus, the respondents have prayed for dismissal of the claim petition.

10. From the pleadings of the parties, the following issues were framed byu the learned MACT on 13.01.2011. On that day, application, under Section 170 of the M.V. Act, moved by respondent No.3, was also dismissed:-

1. Whether Ashwani Kumar died in the accident on

09.10.2008 involving vehicle No. HP-63-0172?...OPP

2. If issue No.1 is proved, to what compensation petitioners are entitled and from whom? ...OPP.

3. Whether respondent No.2 was not holding va