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2013 DIGILAW 1020 (HP)

United India Insu. Comp. Ltd. v. Ima Gurang

2013-12-13

MANSOOR AHMAD MIR

body2013
JUDGMENT Mansoor Ahmad Mir, A.C.J. (Oral) These appeals are directed against the common judgment and award, dated 21.10.2005, passed by the Motor Accident Claims Tribunal, Mandi, H.P., whereby and where-under three claim petitions came to be allowed by the Tribunal and compensation to the tune of Rs.4,18,000/-, Rs.2,62,000/- and Rs.2,80,000/-, with 7.5% interest from the date of filing the claim petitions till realization, was awarded in favour of claimants and against the appellant-Insurance Company (for short ‘the impugned award’). 2. The Insurer-appellant questioned the impugned award on the ground that the Insurance Company was not liable to pay the award amount and the Tribunal has fallen in error in saddling the insurer-appellant with the liability. The argument, though attractive, is devoid of any force for the following reasons. 3. All the three claim petitions are the outcome of vehicular accident, which was caused due to the rash and negligent driving of the driver of the offending vehicle-bus bearing No.HP-14-4383 on 28th April, 2001 at about 7.55 a.m. near Jalogi Thalaut, Tehsil Sadar, District Mandi, H.P. The claimants have claimed compensation on the ground that they have been deprived of their source of dependency. 4. F.I.R. No.61/2001 was lodged. Police was set in motion, conducted investigation and filed the charge- sheet against the driver, namely, Shri Ram Singh. 5. The insurer, insured and driver have contested the claim petitions. On the pleadings of the parties, the following issues were framed by the Tribunal:- “1. Whether the deceased died as a result of rash or negligent driving of respondent No.2? OPP 2. In case, issue No.1 is proved, to what amount the petitioners are entitled and from which of the respondent? OPP 3. Whether respondent No.2 was not having a valid and effective driving license? If so, its effect? OPR-3. 4.Whether there was violation of the terms and conditions of the insurance policy, as alleged? If so, its effect? OPR-3. 5.Relief.” 6.Claimants led their evidence, while the insured owner and the driver opted not to lead any evidence. The insurer-appellant has examined two witnesses, namely, RW-2 N.P. Negi and RW-3 Parma Nand. 7.After scanning the entire evidence, the Tribunal held that the claimants were entitled to compensation. If so, its effect? OPR-3. 5.Relief.” 6.Claimants led their evidence, while the insured owner and the driver opted not to lead any evidence. The insurer-appellant has examined two witnesses, namely, RW-2 N.P. Negi and RW-3 Parma Nand. 7.After scanning the entire evidence, the Tribunal held that the claimants were entitled to compensation. The Tribunal has turned down the objection that the cheque was bounced and the Insurance Company exercised the power in terms of Section 64-VB of the Insurance Act, while taking in view the judgment of the Apex Court reported in New India Assurance Co. Ltd. Vs. Rula and others, AIR 2000 SC 1082 , and also the judgment of this Court in United India Insurance Company Ltd. vs. Laiq Ram and others, 2005(1) SLJ 521. The Tribunal also saddled the insurance Company with the liability of paying the compensation. 8. The Insurance Company has not questioned the findings recorded by the Tribunal on any other ground. The claimants, driver and the insured-owner have also not challenged the findings, so recorded by the Tribunal. Thus, the impugned award has attained finality so far as it relates to the owner, driver and the claimants and also so far as it relates to the insurer, except saddling the liability with the insurer. 9. In the given circumstances, the only question, involved in theses appeals, is – Whether the Tribunal has rightly saddled the Insurance Company with the liability? The answer is in affirmative for the following reasons. 10. Admittedly, cover note (Ext.RB) was issued on 4th October, 2000 and insurance risk was valid from 5th October, 2000 to 4th October, 2001. The positive case of the appellant is that the cheque was bounced and they have issued demand notice to the owner, but has failed to prove the same before the Tribunal. A letter is on the record of the Tribunal, which has been received back un-served and thus, the insurer has failed to follow the mandate of Section 64-VB of the Insurance Act. No doubt, the learned counsel for the appellant has relied on the decision in United India Insurance Co. Ltd. vs. Laxmamma and others, (2012) 5 SCC 234 , but the same is not helpful to the appellant in the given circumstances of the case read with the fact that the appellant has failed to prove that the mandate of Section 64-VB of the Insurance Act was followed. Ltd. vs. Laxmamma and others, (2012) 5 SCC 234 , but the same is not helpful to the appellant in the given circumstances of the case read with the fact that the appellant has failed to prove that the mandate of Section 64-VB of the Insurance Act was followed. The Tribunal has rightly held that the insurer has failed to prove that it has complied with the mandate of law. 11. It is worthwhile to mention herein that the claimants are third party and cannot be made to suffer. The insurer has to satisfy the award. 12. Having said so, the appeals are to be dismissed and the impugned award is to be upheld. Ordered as such. 13. Send down the record.