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2007 DIGILAW 2707 (ALL)

UNITED INDIA INSURANCE CO LTD v. MOHD HANEEF

2007-11-02

RAJESH TANDON

body2007
RAJESH TANDON, J. ( 1 ) HEARD Sri Prabhat Pandey, Counsel for the appellant and Sri B. S. Parihar and Mohd. Azim, Counsel for the respondents/claimants. ( 2 ) BY the present A. O. filed under section 173 of the Motor Vehicles Act, 1988, appellant has prayed for setting aside the award dated 5. 5. 2007 passed by Motor Accident Claims Tribunal/fast Track Court Kashipur, District Udham Singh Nagar in Misc. Motor Accident Claim No. 10 of 2006 Mohd. Haneef v. Smt. Shabnam and others, whereby the claimants have been awarded a sum of Rs. 1,67,000/- towards compensation. ( 3 ) BRIEFLY stated, on 29. 11. 2000, Nawab (hereinafter referred to as the deceased) was standing in front of Truck No. . U. P. No. 21/9600 at D. S. M Sugar Mill, Dhampur, all of a sudden, driver of the Truck No. U. P. 14/2867 (hereinafter referred to as the offending truck) rashly and negligently started taking the truck back and the deceased got crushed between two trucks. The deceased received fatal injuries and succumbed to injuries on the spot. Post mortem of the deceased was conducted at Government Hospital. At the time of accident, the deceased was 37 years of age and was getting a sum of Rs. 8000/- per month as according to him, he was posted as Foreman/chief Operator. Apart from that he was a joint owner of Truck No. U. P. 21/9600. ( 4 ) INSURER has contested the claim by filing a written statement Paper No. 11 Kha stating therein that at the time of accident, the driver of the truck was not driving the truck rashly and negligently and the deceased died due to his own fault. It has further been stated that at the time of accident, the driver of the offending truck was not holding valid driving licence and the amount claimed towards compensation is excessive. ( 5 ) MOHD. Haneef/owner of the offending truck has contested the claim by filing a written statement Paper No. 12kha stating therein that the accident did not lake place on 29. 11. 2000 and the report has been lodged by Atiq Ahmad on wrong facts. It has further been stated that neither the deceased was posted as Chief Operator, nor he was getting a sum of Rs. 8000/- per month. 11. 2000 and the report has been lodged by Atiq Ahmad on wrong facts. It has further been stated that neither the deceased was posted as Chief Operator, nor he was getting a sum of Rs. 8000/- per month. It has further been stated that at the time of accident, Sri Abrar Ahmad was the driver and Sri Sharafat Hussain was conductor on the truck and both were holding valid driving licence and at the time of accident, the truck in question was fully insured. Further, it has been stated that the driver of the truck in question has not been made party. ( 6 ) RESPONDENT No. 1 filed an appeal in this Court being A. O. No. 1544 of 2001, Mohd. Haneef v. Smt. Shabnam and the appeal was decided on 24. 8. 2004 directing the claims tribunal to give an opportunity of hearing to both the parties and further find out as to who was the driver of Truck No. 14/2867 at the time of accident and on the basis of that, decide as to who will be liable to pay the compensation awarded on 20. 11. 2001 in Motor Accident Claims Tribunal No. 255 of 2000. Relevant portion of the judgment dated 24. 8. 2004 passed in A. O. No. 1544 of 2001 is quoted below:-"having heard the argument of both the parties and considering the entire material on record, we are not inclined to accept the contention of the appellant that the Tribunal has failed to appreciate the evidence on record. Before the Tribunal, Sarafat Hussain has been examined as D. W. 3, who has stated on oath that Abrar Ahmad was not present at the place of accident. Moreover, when the truck was seized the driving licence of Sarafat Hussain was found in the truck and this Sarafat Hussan had obtained his for four days. These are very strong circumstances to prove that it was Sarafat Hussain, who was driving the offending vehicle. There is no reason to disbelive the finding arrived at by the Tribunal. From the record, it also reveals that the driving licence of Sarafat Hussain was meant for light motor vehicles and he was prosecuted by the criminal Court for the said accident. Not coming to submission of the appellant that the insurance Company cannot be absolved from its liability even if the driving licence was fond to be invalid. From the record, it also reveals that the driving licence of Sarafat Hussain was meant for light motor vehicles and he was prosecuted by the criminal Court for the said accident. Not coming to submission of the appellant that the insurance Company cannot be absolved from its liability even if the driving licence was fond to be invalid. Having considered all the circumstances of the case, we are of the view that this argument of the appellant has some force. The Apex Court in the case of National Insurance Company Limited v. Swaran Singh and others, 2004 (3) SCC 297 . while dealing with the relevant provisions of law has held in para 110 (vii) and (viii) as under:- " (vii) The question as to whether the award has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learners licence, the insurance companies would be liable to satisfy the decree. " it has further been held in sub-paragraph (x) by the Honble Apex Court that "where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactory proved its defence in accordance with the provisions of section 149 (2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to. . . . . to the third party under the award of the tribunal. " In view of the law laid down by the Apex Court, we are of the opinion that the owner of the vehicle-appellant can take recourse for settlement of dispute between insured and insurer by filing objections before the Tribunal/executing Court. . . . . to the third party under the award of the tribunal. " In view of the law laid down by the Apex Court, we are of the opinion that the owner of the vehicle-appellant can take recourse for settlement of dispute between insured and insurer by filing objections before the Tribunal/executing Court. Since in the present case, the liability to pay the compensation has been fastened on the owner of the vehicle -appellant and the Insurance Company O. P. No. 2 has been absolved from its liability, but following the ratio of the aforesaid case law, we are of the view that the Tribunal can direct the appellant first to satisfy the entire amount under the impugned award before it and after giving opportunity of hearing to the Insurance Company (respondent No. 9) on the objections of the owner-appellant, and then to proceed further in accordance with law, as observed above. The ultimate, finding of the Tribunal/executing Court shall be binding on the parties. " ( 7 ) THE matter with regard to the rashness and negligence have already become final. ( 8 ) HOWEVER, only with the limited aspect of the matter, the matter was remanded and after remand, claims tribunal has framed issues to the following effect :- ( 9 ) SO far as the liability with regard to pay compensation is concerned, claims tribunal has recorded a finding that Mr. Abrar Ahmed was the driver of the offending vehicle holding valid driving licence, thus, the liability to indemnify the award is of the Insurer and so far as the quantum of compensation is concerned, the same has not been challenged at any stage. ( 10 ) THEREFORE, in view of the above, it appears that the appeal has become infructuous and the A. O. is dismissed. No order as to costs. A. O. Dismissed. .