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2006 DIGILAW 117 (HP)

ORIENTAL INSURANCE COMPANY LTD v. SHAM LAL

2006-04-27

A.K.GOEL, NARINDER SINGH THAKUR, SAROJ SHARMA

body2006
JUDGEMENT Justice Arun Kumar Goel (Retd.). President, (Oral).: By means of order dated 7.1.2004 in complaint No. 33/2003, District Forum, Shimla camp at Nahan has allowed the complaint. Impugned order directs the appellant to indemnify the respondent in the sum of Rs.1, 47,846/- with interest @ 12% per annum form the date of filing of the complaint i.e. 5.3.2003 till the actual payment was made. Appellant has also been burdened with litigation cost of Rs.2500/-. 2. Vehicle being insured with the appellant and during the currency of the policy, it having met with an accident are the facts which are not in dispute. What was disputed by Dr. Lalit Sharma at the time of hearing was that, since there was clear cut violation of the terms of the policy of insurance as well as of the Motor Vehicles Act, 1988, therefore, his client was not liable for payment of any compensation. With a view to support this submission he placed reliance on the FIR Ex. D-1, statement of Dev Dutt Ex.D-11 before the motor Accident Claims Tribunal-1 Sirmaur, District at Nahan, H.P. in Nahan, H.P. in M.A.C. petition No. 199-MAC/2 of 2001, and of Head Constable Sehdev Singh, Police Line, Nahan Ex.D-111 who had recorded the FIR Ex. D-1 This statement was also in MAC Petition No.3 of 2002 before Motor Accident Claims Tribunal-11, Sirmaur at Nahan. These pleas have been controverted by Sh. Verma Learned counsel for the respondent. Per him were traveling of the 11 alleged passengers by itself is no ground to reject the claim of his client and documents Exts. D-1 to D-111 in any manner do not improve the case of the appellant so as to call for interference in this appeal. Sh. Verma also placed reliance on a Photostat copy of the award/judgment dated 2.4.2003 in MAC petition No. 199-2/2001, decided by MACT-1 Sirmaur District, at Nahan. 3. Record shows that the respondent claimed compensation in the sum of Rs. 2, 50,000/- with interest @ 18% per annum, besides Rs. 50,000/- by way of damages and cost of litigation. This claim was controverted by the appellant. Its stands before the Forum below was, that sole cause of the accident was carriage of 11 passengers in the vehicle at the time of accident who were not authorized to travel when it met with accident. 4. So far payment of compensation in the sum of Rs. This claim was controverted by the appellant. Its stands before the Forum below was, that sole cause of the accident was carriage of 11 passengers in the vehicle at the time of accident who were not authorized to travel when it met with accident. 4. So far payment of compensation in the sum of Rs. 1, 47, 846/- is concerned, it has been ordered as per assessment made by the surveyor and loss assessor and an expert in this field and was deputed by the appellant. Copy of surveyors report it on the file? There is no acceptable evidence to suggest that carriage of the alleged 11 un-authorised passengers in the truck at the time of accident was the sole and only cause of the accident. Similarly, no nexus in this behalf is established when a reference is made to the statement of Head Constable, Sehedev Singh. He admits that in criminal case driver has been acquitted and at the same time he has also admitted that in FIR there is no mention that 11 passengers were travelling in the truck as the accident, had not taken place in his presence. And, when a reference is made FIR Ex. D-1, it speaks that Dev Duttt has stated he was cutting grass in his fields on 18.11.2001 at about 11. AM Truck No. HR-58-1396 came up from Barag side and was loaded with stones on its way to Renuka. This truck rolled down into his filed. He and other persons rescue the injured. 5.On the other had in proceedings under the Motor Vehicles Act, 1988, in MAC petition No. 199/MAC/2/2001,decided on 2.4.2003 by Motor Accident Claims Tribunal, Sirmaour District at Nahan, H.P. Annexure P-10 issue No.2 was in the following terms:- x x x x x x x x x "2.Whether the truck No. HR-58-1396 was being driven in violation of the terms of Insurance policy, and the provisions of Motor Vehicle Act, if so to what effect? xxxxxxxx". Findings on this issue are extracted here below:- "13. The onus to prove this issue was on the respondent No.3, but the respondent No.3 has failed to adduce any evidence in support of the plea taken by them in the written reply. No list of witnesses, process fee and DM has been filed, hence their evidence has been closed by order of the Tribunal. The onus to prove this issue was on the respondent No.3, but the respondent No.3 has failed to adduce any evidence in support of the plea taken by them in the written reply. No list of witnesses, process fee and DM has been filed, hence their evidence has been closed by order of the Tribunal. As the Insurance Company has failed to adduce any evidence except tendering copy of Insurance Policy Ext. RB, an adverse inference is required to be drawn against them, as such, this issue is decided against -the Insurance Company/respondent No.3. x x x xx". 6. Admittedly, Motor Accident Claims Tribunals are constituted under the Motor Vehicles Act, 1988. They have the jurisdiction to adjudicate upon issue like issue No.2 in this case between litigants like respondent as well as appellant in the appeal before us who were the parties. Appellant was bound to have produced evidence on this issue in order to succeed. In case the appellant as successful, it consequence would have been that the respondent in this appeal would have been held liable for payment of compensation by the MACT, and not appellant. At the time of hearing it was stated at the bar by learned counsel for the parties, that decision of the Motor Accident Claims Tirbunal-1, dated 2.4.2003 has attained finality. 7. In view of the aforesaid discussion and also taking notice of the evidence produced by the parties in the complaint before the Forum below, we satisfied that impugned order calls for no interference in this appeal. 8. A submission was made by Dr. Lalit Sharma, learned counsel of the appellant for remand of cases parties have not led proper evidence. In this behalf he placed reliance on a recent decision of the National Commission in M/S. Oriental Insurance Company Ltd. V/S N. Rajkumar 2006 (1) CPR 315 NC. After having gone through this judgment, we feel that so far present as the appeal is concerned, both the parties have led sufficient evidence as such the decision relied upon by Dr. Lalit Sharma is not applicable in the facts and circumstances of this case. 9. No other point was urged. 10. In view of the aforesaid discussion there is no merit in this appeal, which is accordingly dismissed. Parties are left to bear their own costs. All interim order shall stand vacated forthwith. Lalit Sharma is not applicable in the facts and circumstances of this case. 9. No other point was urged. 10. In view of the aforesaid discussion there is no merit in this appeal, which is accordingly dismissed. Parties are left to bear their own costs. All interim order shall stand vacated forthwith. Office will make available copy of this order to the parties free of cost as per Rules.