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2013 DIGILAW 1037 (HP)

ORIENTAL INSURANCE COMPANY LIMITED v. Rumila Devi

2013-12-20

MANSOOR AHMAD MIR

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JUDGEMENT MANSOOR AHMAD MIR, J.- 1. THE appellants-claimants have preferred this appeal, feeling dissatisfied with the award passed by the Motor Accident Claims Tribunal, Fast Track, Shimla, H.P. (hereinafter referred to as "the Tribunal") in MAC Case No. 5-S/2 of 2005/2000, decided on 7.9.2006, titled as Smt. Rumila Devi & ors. versus Khajan Chand Azad & others., whereby compensation to the tune of Rs. 7, 68, 500/- with 6% interest per annum from the date of filing of the petition till its final realization, came to be awarded in favour of the claimants-respondents No. 1 to 3 against the appellant-insurer herein, (hereinafter referred to as "the impugned award"), on the grounds taken in the memo of the appeal. 2. FACTS in brief are that on 8.7.1999, the deceased was travelling in Ambassador Car bearing No. DEA-6575 which was being driven near Hedsu rashly and negligently by driver namely Rafiq and caused accident in which one Moti Ram died. He was Maison by profession and was earning Rs. 8100/- per month. The offending vehicle was insured with Oriental Insurance Company. Rafiq. The driver also died in the accident. The claim petition for grant of compensation the tune of Rs. 20 lacs was preferred, as per the break-up given in the claim petition. The petition was resisted by insurer-appellant and insured Khajan Chand. The following issues were framed: 1. Whether the driver of the car bearing No. DEA-6575 namely Rafiq was driving the said car on 8.7.1999 near Hedsu (Tiuni), the Chakrota, District Dehradun (Utranchal) in rash and negligent manner, resulting in death of Moti Ram, as alleged? OPP. 2. If issue No. 1 is proved, whether the petitioners are entitled for compensation, if so from whom? OPP. 3. Whether the petition is not legally maintainable? OPR- 1. 4. Whether the petition is bad for mis-joinder of rt necessary party? OPR-1. 5. Whether the petition is bad for non-joinder of necessary party? OPR-1. ou 6. Whether there is no privity of contract between the petitioners and the replying respondent, as alleged? OPR-1. 7. Whether the petitioner was no cause of action against the answering respondent? OPR. 8. Whether the vehicle in question was being driven at the relevant time in violation of the provisions of the motor vehicles Act and in contravention of the policy of the insurance, as alleged? OPR-2. 9. Relief. 3. OPR-1. 7. Whether the petitioner was no cause of action against the answering respondent? OPR. 8. Whether the vehicle in question was being driven at the relevant time in violation of the provisions of the motor vehicles Act and in contravention of the policy of the insurance, as alleged? OPR-2. 9. Relief. 3. THE parties present led evidence and after scanning the evidence, oral/documentary, the impugned award came to be passed. 4. THE appellant-insurer has questioned the impugned award to the extent of saddling the liability. The other parties have not questioned the same, thus the impugned award has attained finality so far as it governs the claimants, insured and one Mr. Rajinder Singh. The insurer-appellant has not questioned the impugned award so far as it relates to issues No. 1,3, 4, 5, 6 & 7. Thus, the findings returned on the said issues are upheld. The appellant-insurer has only questioned the saddling of the liability, which is covered by issues No. 2 & 8. The argument advanced by Mr. Lalit K. Sharma, learned counsel appearing for the appellant-insurer is that the registration certificate and other documents on record of the Tribunal do disclose that the offending vehicle bearing No. DEA- 6575, was a private vehicle and no permission was granted by the concerned authorities to use it as Taxi. Further, it is contended that even the claimants have admitted in para 11 that the offending vehicle was Taxi and they were travelling as passengers. The insurer has also filed reply and has specifically averred in para 3 of the reply that the vehicle was being used as Taxi which is a breach of the terms and conditions of the policy read with registration certificate. Learned counsel argued that the accident has given birth to so many claim petitions. In batch of claim petitions, the Tribunal has held that the owner has committed breach but claimants, being 3rd party, insurer was directed to satisfy the award(s) with right of recovery. 5. LEARNED counsel for the claimants has not advanced the argument and has not contested the plea raised by learned counsel for the appellant-insurer. 6. LEARNED counsel for the registered owner Khajan Chand has frankly conceded that Sh. 5. LEARNED counsel for the claimants has not advanced the argument and has not contested the plea raised by learned counsel for the appellant-insurer. 6. LEARNED counsel for the registered owner Khajan Chand has frankly conceded that Sh. Khajan Chand had sold the offending vehicle during the subsistence of the insurance policy to respondent No. 6 and it is not known whether respondent No. 6- Rajinder Singh had complied with the mandate of Section 157 (2) of the Motor Vehicles Act. Admittedly, the offending vehicle was a private vehicle. No permission/registration certificate or any other document was issued in favour of the registered owner for plying the vehicle as taxi. Thus, it is a breach of policy in terms of the mandate of Section 147, Section 149(2) of the Motor Vehicles Act read with registration certificate. 7. IN the circumstances, I deem it proper to modify the impugned award by directing that insurer-appellant has to satisfy the award but with right of recovery and can file execution petition/application before the Tribunal for recovery of the said amount. 8. THE impugned award is modified as indicated above and appeal is disposed of.