(1.) THE present writ petition has been filed, assailing the award dated 1. 8. 2003 passed by the Motor Accidents Claims Tribunal-I, Sirmaur District at Nahan, H. P. in M. A. C. Petition No. 145-MAC/2 of 2001, titled as Purna Wati v. Kirti Aggarwal.

(2.) BRIEF facts giving rise to the filing of the present writ petition are as under: on 15. 5. 2001, utility jeep No. HP 18-7301 in which deceased Sanjiv Aggarwal was travelling, met with an accident in which he received multiple injuries and died at the spot. He was survived by his mother, wife and four minor children.

(3.) HIS legal heirs except his wife filed a claim petition being M. A. C. Petition No. 145-MAC/2 of 2001 under section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') in which his wife kirti Aggarwal was added as a respondent being the owner of the said vehicle.

(4.) THE petitioner insurance company resisted the claim on the ground that the deceased along with his wife Kirti Aggarwal, respondent No. 1, were co-owners of the concerned vehicle and also joint holders of the insurance policy and the claim by second party to insurance policy was not maintainable.

(5.) AFTER considering the entire material on record, including the documents and the statements of the parties, the Tribunal allowed the claim petition in terms of the impugned award and awarded compensation of Rs. 5,19,000 in favour of the claimants and against the insurance company. No amount was apportioned in favour of kirti Aggarwal.

(6.) LEARNED counsel for the petitioner has challenged the award on the following grounds: as per policy Exh. P2, Kirti Aggarwal and her husband Sanjiv Aggarwal were joint policyholders as owners of the vehicle in question in accordance with the provisions of section 146 of the Act. The effect of Exh. P2 is that insurable interest was created in favour of the insured person, i. e. , sanjiv Aggarwal, who expired on 15. 5. 2001 and his wife Kirti Aggarwal. Consequently, deceased being an insured person, on his behalf no claim could be maintained as he was not covered under the policy being a second party to the policy. In view of the provisions of section 166 of the Act, Kirti aggarwal being the wife of the deceased and class-I heir was required to be impleaded or treated as one of the claimants either as a claimant in the memo of parties or as a pro forma respondent being one of the claimants. Therefore, the indemnification clause of the policy could not be legally and validly invoked only against the insurance company as a sole respondent. Both Kirti Aggarwal and Sanjiv Aggarwal were joint owners of the vehicle in question is evident from the sale certificate, exh. RW2/b and also the statement of licensing clerk of SDM office, Nahan, RW 1 on the basis of which Exh. P2 was issued. No steps were taken for getting the name of policyholder corrected between the date of issuance of the policy and the date of the accident, therefore, taking the policy on its face value Sanjiv Aggarwal is to be considered a joint policyholder in view of the provisions of section 146 of the Motor vehicles Act. Kirti Aggarwal is a direct beneficiary and the petition is collusive in nature. Deceased was carrying the goods as owner of the vehicle is also evident from the statement of Rajesh Kumar, PW 1, who has deposed that he had loaded certain goods in the vehicle for which he had paid the carriage charges to Sanjiv Aggarwal. In order to take benefit of the provisions of section 140 of the Act, the claimants have filed a false claim. In support of his contentions, he has referred to the following decisions:

"sadhana Lodh v. National Insurance co. Ltd. , 2003 ACJ 505 (SC); United india Insurance Co. Ltd. v. Chander prabha Bhatt, 2005 ACJ 1972 (HP) and united India Insurance Co. Ltd. v. K. Subramaniam, 1991 ACJ 625 (Madras). "

(7.) THE Claim Petition No. 145-MAC/2 of 2001 was filed by the mother and minor children of the deceased Sanjiv Aggarwal, through their grandmother. The wife of the deceased was arrayed as the respondent no. 1 being the owner of the vehicle. The relationship between the parties was disclosed and it is clearly mentioned that in order to avoid any legal complicity the mother Kirti Aggarwal was impleaded as respondent No. 1 but the claim was sought against the insurance company, respondent no. 2, therein. (8.) THE wife filed her reply virtually conceding the claim of the claimants. The insurance company filed its reply clearly stating that the deceased and his wife were joint owners and joint policyholders, therefore, the claim petition was not maintainable. It is, however, a matter of record that no permission of the court under section 170 of the Act was ever sought or obtained by the insurance company.

(9.) IN support of their claim, claimants examined three witnesses. Arun Bali, PW 2, junior clerk, H. P. State Co-operative bank, Dadahu proved the bank account statement, Exh. PW2/a of Kirti Aggarwal to show that the payments of the vehicle were made from the said account. Claimant purnawati, PW 3, has proved that deceased was serving as a clerk in the Tehsil Office, dadahu and drawing a salary of Rs. 6,073 p. m. Satinder Singh, licensing clerk, SDM office, Nahan, RW 1, has deposed that as per registration certificate, the vehicle in question was registered in the name of kirti Aggarwal, wife of Sanjiv Aggarwal. As per their record, the sale letter was in the name of Kirti Aggarwal and Sanjiv aggarwal, mark 'x' and no complaint was received to the effect that the registration certificate, Exh. PB, was wrongly issued in the name of Kirti Aggarwal. The insurance cover note, Exh. R1, was tendered in evidence by the counsel appearing for the insurance company.

(10.) KIRTI Aggarwal, RW 2, has proved salary slip, Exh. PA, to prove that deceased was in government service and could not own any vehicle without the permission of the government. She has further proved the copy of invoice, Exh. RW2/a, of the vehicle in question and certificate, Exh. RW2/b, issued by the seller of the vehicle to show that vehicle in question was sold in the name of Kirti Aggarwal. As per her bank account statement, Exh. RW2/c (H. P. State Co-op. Bank), payments towards the instalments of the vehicle were made from her account. Receipt dated 6. 2. 2003, Exh. RW2/d showing repayment of loan of the vehicle is issued in her name. However, exh. RW2/e of the same date is in name of both Kirti Aggarwal and Sanjiv Aggarwal.

(11.) DURING trial she also got tendered documents, Exh. R2 to Exh. R4, i. e. , the pleadings with respect to Claim Petition no. 177-MAC/2 of 2001 filed by the other claimants in relation to the incident in question.

(12.) IT is clear that vehicle in question stood registered by the registration authority in the name of Kirti Aggarwal alone and as per the bank account statement, Exh. PW2/a and Exh. RW2/c, instalments towards repayment of the loan amount were made through the account of respondent no. 2 alone. The registration certificate in itself is a proof of ownership as per section 2 (30) of the Act.

(13.) EXH. R1 is not a public document and could not have been exhibited by merely tendering the same in the court. It is a matter of record that no witness was produced and examined by the respondent insurer to prove the same yet I have examined the same. Copy of invoice, Exh. R1, would show that in the column showing the name of the insured, name of Kirti aggarwal, is written and name of Sanjiv aggarwal is written in the column of address of the insured. From the same, it cannot be said that the policy was joint as normally the parentage or name of husband in case of ladies is normally given after the name of the purchaser. From Exh. PW2/b, it is clear that vehicle in question was sold to Kirti Aggarwal, wife of Sanjiv Aggarwal only. No doubt there are two documents of the same invoices having Exh. RW2/a and mark 'x' which are not identical. Invoice, Exh. RW2/a is in the name of Kirti aggarwal w/o Sanjiv Aggarwal', whereas invoice mark 'x' is in the name of 'kirti aggarwal, Sanjiv Kumar Aggarwal', village and Post Office Dadahu, Tehsil Nahan, Distt. Sirmaur. Be that as it may be, the fact of the matter is that the seller has issued a certificate, Exh. RW2/b, stating that vehicle was sold to Kirti Aggarwal. Therefore, it cannot be said that vehicle in question was purchased jointly by Kirti aggarwal and Sanjiv Aggarwal. The insurance policy cannot be said to have been jointly taken by Kirti Aggarwal and Sanjiv aggarwal. The Tribunal has already come to the conclusion that the vehicle in question was purchased by Kirti Aggarwal, which is evident from the registration certificate. Petitioner has assailed the award in a writ jurisdiction. This court in a writ jurisdiction is not sitting in an appeal and is required to minutely scrutinize the evidence and the documents. Yet I have carefully gone through the record to see as to whether the award passed by the Tribunal is perverse or not. I am in total agreement with the findings rendered by the Tribunal. (14.) IT is a matter of record and evident from Exh. R2 and Exh. R3 that in other claim petitions arising out of the same accident the insurer did not take pleas and defences which are sought to be taken in the present case. The stand of the insurer is not only contradictory but its conduct is unjust, unreasonable and unfair.

(15.) FURTHER, it is a matter of record that no permission under section 170 of the Act was sought or accorded by the court. In this view of the matter and keeping in view the ratio of law laid down by the apex Court in Sadhana Lodh v. National insurance Co. Ltd. , 2003 ACJ 505 (SC); bijoy Kumar Dugar v. Bidyadhar Dutta, 2006 ACJ 1054 (SC); National Insurance co. Ltd. v. Mastan, 2006 ACJ 528 (SC); national Insurance Co. Ltd. v. Nicolletta rohtagi, 2002 ACJ 1950 (SC); United india Insurance Co. Ltd. v. Jyotsnaben sudhirbhai Patel, 2003 ACJ 2107 (SC); h. S. Ahammed Hussain v. Irfan Ahammed, 2002 ACJ 1559 (SC); and Rita Devi v. New India Assurance Co. Ltd. , 2000 ACJ 801 (SC); it would not be open for the insurer to expand the grounds of challenge other than ones which they are entitled to raise in accordance with provisions of section 149 (2) of the Act.

(16.) LEARNED counsel for respondents has raised doubts about the maintainability of the writ petition itself. This court in national Insurance Co. Ltd. v. Soma Devi, 2003 ACJ 1919 (HP), has held: " (15) It, therefore, becomes abundantly clear that in all such like cases where the award on the face of it is a perversity or is based on fraud, and the insurance company has no remedy under Motor vehicles Act of either challenging the award in appeal or being either to have it recalled or reviewed by the Tribunal itself, the power of judicial review by this court in the exercise of its extraordinary jurisdiction under Article 226/ 227 of the Constitution can always be invoked and exercised by this court in dispensing justice to the parties. " (17.) I am not going into the question of maintainability of the writ petition in view of my observations with regard to other issues involved in the present petition.

(18.) LEARNED counsel for the respondents has submitted that Annexures P4 and P5 filed with the writ petition do not pertain to the case in question and cannot be looked into. For the purpose of adjudication of the present case I have perused the complete record and taken into consideration only such of those documents which have been exhibited and proved in accordance

with law in the instant case. (19.) IN my view, therefore, it cannot be held that insurable interest was created in favour of Sanjiv Aggarwal or that the claim against the insurance company was not maintainable. (20.) SECTION 166 (1) of the Act provides that an application for compensation can be filed by all or any of the legal representatives of the deceased. Therefore, it was not necessary for the respondent No. 1 to be impleaded as a claimant. She was impleaded as a respondent. It is not that the Tribunal, after awarding the compensation has apportioned the amount payable and awarded the share to Kirti Aggarwal, respondent No. 1, as legal heir of the deceased Sanjiv Aggarwal. Kirti Aggarwal, respondent No. 1, is neither the claimant nor the beneficiary of the claim petition and the awarded amount. The claim petition, therefore, was in absolute order. Simply because Kirti Aggarwal one of the legal heirs of the deceased happened to be the owner and policyholder of the vehicle that by itself would not be a ground for defeating the legitimate and statutory rights of other legal heirs of the deceased Sanjiv aggarwal. The petition cannot be said to be collusive. (21.) FOR the aforesaid reasons, the writ petition is accordingly dismissed. Petition dismissed.