Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 864 (HP)

Jai Kumar v. Dinesh Kumar

2012-11-22

SURINDER SINGH

body2012
Judgment SURINDER SINGH, J . The appellant is the owner of tractor No.HP-32-1746, which was admittedly insured with the Oriental Insurance Company. The Insurance Company was exonerated by the learned Tribunal on the ground that it was the appellant and not respondent No.3 Vijay Kumar, who was alleged to have been driving the vehicle in question and he was not having a valid and effective driving licence and that the appellant himself was rash and negligent in causing injury to claimant-respondent No.1, as such Claim Petition No.9 of 2006 filed on behalf of the minor claimant-respondent through his guardian was allowed by the learned Tribunal vide its award dated 30.3.2010 for compensation of Rs.59,984/- with interest at the rate of 7.5% from the date of filing the petition and the appellant was directed to pay this amount within 30 days. 2. The appellant-owner filed the present appeal on the grounds that his tractor was not involved in the accident as the same was neither reported to him by his driver respondent No.3 nor to the police and that his driver respondent No.3 was having valid and effective driving licence on the day of the accident, therefore, the Insurance Company has to indemnify the award. In the grounds of appeal it is also stated that an application under Order 41 Rule 27 of the Code of Civil Procedure was being moved separately, but no such application was filed. 3. I have heard the learned Counsel for the parties and have carefully examined the evidence on record. 4. The perusal of record reveals that the respondent No.1 was minor at the time of accident and also the filing of petition. During pendency, he attained majority and examined himself as a witness. But in the claim petition filed through his father the act of rash and negligent driving was attributed to the appellant-owner, but when the owner was summoned and filed his reply, he averred therein that at the relevant time respondent No.3 was his driver, but he had not told him about such an accident. On this, petition was amended by moving an application under Order 6 Rule 17 of the Code of Civil Procedure and another application under Order 1 Rule 10 of the Code of Civil Procedure was also moved to implead respondent No.3 Vijay Kumar as respondent, which was allowed. On this, petition was amended by moving an application under Order 6 Rule 17 of the Code of Civil Procedure and another application under Order 1 Rule 10 of the Code of Civil Procedure was also moved to implead respondent No.3 Vijay Kumar as respondent, which was allowed. In his reply Vijay Kumar aforesaid admitted that in July 2005 he was the driver, employed by the appellant-owner, but he also denied the accident. 5. The learned Tribunal disbelieved the contention of the respondents that it was respondent No.3 who was driving the tractor at the relevant time for the reason that the cause for this story propounded by them was wrong as he (appellant) was not holding a valid driving licence to drive the tractor on the day of accident, whereas third respondent was possessing a valid and effective driving licence, thus he was introduced to shift the liability on the Insurance Company and therefore, there was no occasion with respondent No.3 not to have lodged FIR and reported the matter to the police. So the conclusion was that it was respondent No.1, who was driving the tractor rashly and negligently and caused the injury to the claimant-respondent. The plea of the appellant-owner that no such accident had taken place was discarded. On this ground the Insurance Company was exonerated and the appellant was saddled with the liability of compensation as aforesaid. 6. I have reassessed the evidence on record. As stated above, claimant-respondent No.1 during the pendency of the petition had attained majority relegating his father as guardian. Injured examined himself as PW1 and testified that at the time of accident, the tractor in question was being driven by respondent No.3 Vijay Kumar and there was no one sitting with him. He stated in his cross-examination that Jai Kumar, appellant, was the owner to whom he knew after the accident, but he did not see him on the spot on the day of accident. He stated that if his father had mentioned in the petition that Jai Kumar was driving the tractor was incorrect since his father did not witness the accident, but it was only PW3 Dagu Ram and his mother, who were first to reach the spot. 7. Dagu Ram (PW3) stated that he reached the spot from his field, but failed to identify the driver of the tractor. 7. Dagu Ram (PW3) stated that he reached the spot from his field, but failed to identify the driver of the tractor. Significantly, appellant Jai Kumar categorically when examined before the Tribunal stated that respondent No.3 was the driver at the relevant time. He placed on record the insurance policy. His own driving licence which was valid at the relevant time is on record, but not exhibited /marked and he also placed the copy of driving licence of the third respondent (Mark-B) which was valid for LMV, which covers the tractor as defined in Section 2(21) of the Motor Vehicles Act. The learned Tribunal also held that it was valid and effective driving licence which fact has not been disputed even by the Insurance Company in his cross-examination. Therefore, in these circumstances, in my opinion, the accident is proved to have taken place by rash and negligent driving by respondent No.3 who was having a valid and effective driving licence at the relevant time. Therefore, the respondent-Insurance Company is legally bound to indemnify the appellant-owner of the tractor and to satisfy the award passed against him. 8. For the aforesaid reasons, the appeal is allowed and the impugned award is modified to the extent that the appellant owner, driver Vijay Kumar respondent and the respondent Insurance Company are jointly and severally liable to pay the amount of compensation awarded by the learned Tribunal below. Since the tractor in question was insured with respondent No.2-Insurance Company, therefore, they are directed to satisfy the award alongwith interest which shall be deposited by them within 45 days from today, failing which respondent-claimant shall be at liberty to file the execution petition. The appeal stands accordingly disposed of, so also the pending application(s), if any.