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2012 DIGILAW 94 (HP)

Oriental Insurance Co. Ltd. v. Usha

2012-03-14

DEV DARSHAN SUD

body2012
JUDGMENT : Dev Darshan Sud, J. This appeal has been preferred by the Insurance Company against the award passed by the learned Motor Accident claims Tribunal, Kullu awarding a sum of Rs. 7,50,000/- to the petitioners who are the wife, minor children and the mother of the deceased. The facts of the case are that the petition claiming just compensation was instituted by the petitioners on the pleadings that on 11.7.2005 the ill-fated vehicle, which is a Mohindra Camper bearing registration No. HP-66-0709, was being driven in a rash and negligent manner by respondent No. 2 before the Tribunal Shri Tej Singh in which the deceased Rajinder Kumar was travelling. When the said vehicle reached near Garsa it fell down 35-40 feet below the road level resulting in serious injuries to the deceased who ultimately succumbed to these injuries. A petition, praying for Rs. 50 lacs as just compensation, was instituted before the learned Tribunal. 2. The petition was resisted by the respondent-owner M/s Bhola Singh Jai Prakash Pvt. Ltd who filed reply which does not dispute the pleadings of the claimants save and except the income which was being earned by the deceased who was working as a mechanic with them,. Respondent No. 2 driver, admits the accident but denies rash and negligent acts attributed to him. 3. The Insurance Company-respondent No. 3 (appellant herein) has resisted the application primarily on the ground that the vehicle was notinsured with it, the driver did not possess a valid and effective driving licence, the owner of the vehicle was not possessing valid documents, route permit, token tax etc. of the vehicle. He did not have a fitness certificate which was being plied in contravention of the Motor Vehicle Act (sic provisions of) and the contract of the insurance policy as the deceased was a gratuitous passenger. This objection has been taken as a preliminary objection and it is reiterated in the reply on merits. It is on these pleadings that the parties went to trial before the learned Tribunal which settled six issues, the last relating to the relief. The onus of two issues with respect to the fact as to whether deceased Rajinder Kumar died due to rash and negligent driving and the quantum was obviously on the claimants. It is on these pleadings that the parties went to trial before the learned Tribunal which settled six issues, the last relating to the relief. The onus of two issues with respect to the fact as to whether deceased Rajinder Kumar died due to rash and negligent driving and the quantum was obviously on the claimants. On three other settled issues, namely; (a) whether the ill-fated vehicle was insured with the Insurance Company, (b) whether respondent No. 2 (driver in this case) was not holding a valid and effective driving licence at the time of accident and lastly (c) whether the vehicle in question was being driven in contravention of the terms and conditions of the Insurance Policy, the onus was on the Insurance Company. 4. Adverting to the first issue, the learned Tribunal holds that death of Rajinder Kumar is not disputed, but the evidence on record establishes the factum of death. The learned Tribunal also adverted to the evidence of PW-5 Surya Pal who was one of the occupants in the vehicle in question which fact again was not disputed. He testifies that the deceased was sitting on the front seat on the side of the driver when the said vehicle fell into the nullah (deep ditch) near Garsa. He says that the vehicle was being driven by respondent No. 2 at a very high speed in a rash and negligent manner and could not negotiate the curve as a result of which it lost its balance and fell into a deep ditch/river below the road. Consequently, First Information Report Ex.PW-2/A was registered by the police on the basis of his statement. He says that there was a gentle up-hill gradient at the spot where the accident occurred. On the question as to whether the vehicle was insured with the appellant, there was no evidence to the contrary. Rather it was proved that the vehicle in question was insured as pleaded. 5. On the other two issues with respect to a valid driving licence and the terms and conditions of the insurance policy, the learned Tribunal holds that Ex. RC is the driving licence and its authenticity has not been disputed. The Tribunal also holds that respondent No. 3 (Insurance Company in this case) has not led any evidence to show as to whether the licence Ex. RC was fake or invalid licence. RC is the driving licence and its authenticity has not been disputed. The Tribunal also holds that respondent No. 3 (Insurance Company in this case) has not led any evidence to show as to whether the licence Ex. RC was fake or invalid licence. Similarly, there was no evidence on the point that the vehicle in question was being driven in contravention of the terms and conditions of the insurance policy. My attention has also been drawn by learned counsel appearing for the claimants to the orders passed by learned Tribunal. What I find from the order sheets is that after the evidence of respondents No. 1 and 2 was closed, which consisted only of tendering photostat copies of documents Ex. RA to Ex. RC, time was granted to the Insurance Company to produce evidence. This order was passed on 26.12.2005 and the case was directed to be listed on 18.1.2006. On that day, the Court records that no process fee has been filed nor any witnesses produced. Time was sought for filing list of witnesses, diet money and process fee which was granted. The case was then directed to be listed on 2.3.2006. On that day, the Court again records that list of witnesses, process fee, diet money etc. has not been deposited though two opportunities have already been granted. One more opportunity was prayed for and granted and the case was directed to be listed on 17.3.2006. The Court also directs that this would be the last opportunity. On that day, the Insurance Company tendered Ex. RD which is the insurance policy in evidence and the case was listed for arguments. 6. I have adverted to these Court orders in some detail as counsel appearing for the owner and claimants submit that after having availed a number of opportunities granted by the learned Tribunal for leading evidence having failed to do so, it is not open to the appellant now to urge a plea for which there is no foundational ground urged/established in the Court below. 7. Shri Deepak Bhasin, learned counsel appearing for the appellant, urges that irrespective of the onus and proof, if the facts are otherwise on the record of the case then such onus and proof would loose all significance and it is on those facts that this Court has to render a decision. True, as held by Supreme Court in National Insurance Co. True, as held by Supreme Court in National Insurance Co. Ltd. Vs. Rattani and Others, (2009) 2 SCC 75 there can be no doubt on this principle of law. What I find from the factual narration and the evidence on record is that the pleas, which have been taken by the Insurance Company as preliminary objections in its reply filed to the petition u/s 166 of the Motor Vehicles Act, are not even established in the cross-examination of the witnesses of the claimants. In these circumstances, accepting this principle and applying it in vacuo, it will prove fruitless for the reasons that there are no facts on the record which would attract its applicability. At this stage, I may observe that the pleadings before the Tribunal are lax; objections taken require some foundational facts to be pleaded which are totally absent. But having said that, and even accepting the pleadings on their face value, I do not find that any attempt has been made for leading positive evidence or in the alternative cross-examination of the witnesses of the opposite side to establish facts on which the appellant seeks to establish its case. I, therefore, find no merit in this appeal which is dismissed. I further direct, on a prayer made by the counsel appearing for the parties, that the amount lying deposited in this Court be released to the claimants in proportion to their respective shares alongwith interest and remitted to their saving bank accounts, particulars whereof will be supplied by the learned counsel to the Registry of this Court. Such remittance will be sent after a period of six months from today.