Research › Search › Judgment

Himachal Pradesh High Court · body

2004 DIGILAW 280 (HP)

NATIONAL INSURANCE COMPANY LTD. v. PRABHA DEVI

2004-10-18

A.K.GOEL

body2004
JUDGMENT Arun Kumar Goel, J.—When this case was taken up today, learned Counsel for the parties submitted that looking to the limited controversy involved in this appeal, it may be finally disposed of after its admission at the threshold. It was further submitted that its pendency will not be in the interest of either of the parties. Keeping in view this joint request made by the learned Counsel for the parties, and also looking to the limited controversy involved in this case, it has been taken up for final hearing after it was formally admitted. 2. Mr. Ashwani Sharma, learned Counsel for the appellant urged only one ground in support of this appeal. It was, that deceased Bhag Chand, husband of respondent No. 1, father of respondents No. 2 to 4 and son of respondent No. 6, was traveling as unauthorized gratuitous passenger in a goods vehicle, meant and adapted for carriage of goods only, at the time of its accident. As such, looking to the defences open to his client under Section 149(2) of the Motor Vehicles Act, 1988, learned Tribunal below fell into error by holding the appellant liable for payment of compensation awarded in this case. With a view to buttress his this submission. Mr. Sharma referred to the evidence examined by the parties during the course of trial, before the learned Tribunal below. 3. Before proceeding further in this case, it may be appropriate to observe that the learned Tribunal below based on the pleadings of the parties, framed the following issues:— 1. Whether Shri Bhag Chand has died on account of the rash and negligent driving by respondent No. 2? OPP 2. Whether the petitioners are entitled to compensation, if so, how much and from whom? OPP 3. Whether the respondent No. 2 was not having a valid and effective driving licence, if so, its effect? OPR-1 4. Whether the deceased was not accompanying with his goods and was not covered under the terms and conditions of the policy? OPR-1 5. Relief. 4. For the purpose of deciding this appeal, Issue No. 4 is relevant and material. Admittedly onus of this issue was on the appellant. Learned Counsel for the appellant by referring to the record of the learned Tribunal below fairly stated that no evidence has been produced by his client. 5. OPR-1 5. Relief. 4. For the purpose of deciding this appeal, Issue No. 4 is relevant and material. Admittedly onus of this issue was on the appellant. Learned Counsel for the appellant by referring to the record of the learned Tribunal below fairly stated that no evidence has been produced by his client. 5. He however made an attempt to show that there is no legally acceptable evidence to suggest that the deceased was traveling as owner of his goods at the time of accident in the truck bearing No. HP-14-0297. 6. In this behalf when a reference is made to the statement of respondent No. 1 Smt. Prabha Devi, its perusal shows that on the fateful day i.e. 1.7.2003, her husband was on way from Parwanoo in the Swaraz Mazda vehicle. He was travelling in the vehicle with his goods when the accident took place and he died at the spot. When a reference is made to her cross-examination, I am satisfied that she has not been dislodged on this vital aspect of the case. 7. I may however hasten to add here that the question of respondents No. 1 to 5 having led evidence on this issue No. 4 was to only arise when by leading cogent, reliable as well as legally acceptable evidence, the appellant had discharged the onus. This is looking to the frame of issue, as well as Section 101 of Evidence Act or at least applying the principles underlying this Section, in case technicality of the Evidence Act is not applicable to the proceedings under the Motor Vehicles Act, 1988 before the Tribunal below. 8. It is by now well settled by catena of decisions of the Honble Supreme Court that all defences are to be proved the insurer like the appellant in the present case. Reference can be made in this behalf to Narchinva v. Kamat and another, etc., AIR 1985 S.C. 1281; Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and others, AIR 1987 SC 1184 and National Insurance Co. Ltd. v. Swaran Singh and others, (2004) 3 SCC 297. 9. When submission of Mr. Reference can be made in this behalf to Narchinva v. Kamat and another, etc., AIR 1985 S.C. 1281; Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and others, AIR 1987 SC 1184 and National Insurance Co. Ltd. v. Swaran Singh and others, (2004) 3 SCC 297. 9. When submission of Mr. Sharma is tested on the basis of evidence on record, as well as on the touch stone of these decisions of the Supreme Court, it is evident that this is a case of no evidence having been examined by the appellant what to talk of legally acceptable evidence, to raise the plea urged in this appeal. 10. No other point was urged at the time of hearing. 11. Accordingly, it is evident that there is no merit in this appeal, which is accordingly dismissed with no order as to costs. Interim order dated 22.7.2004 is vacated and CMP No. 596 of 2004 also stands disposed of. Appeal dismissed.