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2013 DIGILAW 245 (HP)

ORIENTAL INSURANCE COMPANY LTD v. KAMLA DEVI

2013-04-05

DEV DARSHAN SUD

body2013
JUDGMENT DEV DARSHAN SUD, J. - 1. THE Insurance company challenges the award made by the learned Motor Accident Claims Tribunal, Shimla awarding a sum of Rs. 2,88,000/- along with interest at the rate of 8% per annum from the date of its institution till payment. 2. THE claimant is widow of the deceased, who was travelling in the ill-fated vehicle which met with the accident on 15.9.2000. The claimant states that her deceased husband Shri Bhagat Ram was working as Class-IV in the office of Divisional Organizer, S.S.B., Shimla and was paid Rs. 5805/- per month. He used to have agriculture income of Rs. 6000/- per month. On 15.9.2000 the deceased was travelling from Namhol to his house where sand was required for construction work of his house and as such he was travelling in the ill-fated vehicle No. HP-11-2762 along with the sand. The driver of the vehicle, respondent No. 2 Parveen @ Kallu, was negligent and rash, as a result of which, the truck skidded of the highway in Chabru (Tapra) at about 7.45 PM. Shri Bhagat Ram suffered multiple injuries of serious nature and died on the spot before he could be taken to the hospital for medical treatment etc. The first two respondents resisted the petition admitting only that the ill-fated truck was owned by respondent No.1. It was stated that on 15.9.2000 respondent No. 2 was driving the truck and the deceased had collected sand and was transporting it in the truck. It is stated that the truck was driven with due care and caution and the accident was result of the retaining wall supporting the road which suddenly caving in which could not be detected by exercise of due diligence. Respondent No. 3 Insurance Company submitted that earlier petition instituted by the claimant was dismissed as withdrawn; application under Order IX Rule 9 of the Code of Civil Procedure for restoration of the claim petition was also dismissed in default. In these circumstances, the petition was barred by the principles of res-judicata. The deceased was an unauthorized passenger and was not covered by the insurance policy. The vehicle was being driven in contravention of the conditions of the insurance policy. On the settled issues, the learned Tribunal awarded compensation on assessment of the evidence on record. 3. In these circumstances, the petition was barred by the principles of res-judicata. The deceased was an unauthorized passenger and was not covered by the insurance policy. The vehicle was being driven in contravention of the conditions of the insurance policy. On the settled issues, the learned Tribunal awarded compensation on assessment of the evidence on record. 3. IN this appeal, what has been urged before me is that the learned Tribunal was in error in deciding the issue of res- judicata as also the infringement of the insurance policy contrary to the evidence on record. Learned counsel appearing for the appellant submits that the petition was clearly barred by principles of res-judicata. The learned Tribunal holds that since the petition was dismissed in default, there was no adjudication on merits and in these circumstances, there could be no bar for instituting the present petition. 4. I also find from the record that the petition has not been placed on record of the case nor any order stating the grounds on which the petition was dismissed. Nonetheless, I find that the admitted case of the parties is that the petition in fact was filed and that it was dismissed in default. In these circumstances, it becomes difficult to accept the contention urged on behalf of the appellant that there was a contest on merits, which was a bar to the institution of the claim petition, out of which this appeal arises. Surely, it was not difficult for the parties to obtain copy of the application/order and claim petition as also the order and prove its contents in accordance with law. Since this course was not adopted, the submission cannot be accepted and is therefore rejected. Adverting to the second aspect of the matter, which is that the deceased was an unauthorized passenger, what I find from the evidence is that there is sufficient evidence on record to show that the deceased was in fact travelling as an owner of the goods. The evidence of the claimant, when read in conjunction with the other evidence, makes this clear. There is no positive evidence to support the contention of the appellant-Insurance company on the plea urged. This aspect of the case which is factual and which should be established by positive evidence has not been proved on record. The evidence of the claimant, when read in conjunction with the other evidence, makes this clear. There is no positive evidence to support the contention of the appellant-Insurance company on the plea urged. This aspect of the case which is factual and which should be established by positive evidence has not been proved on record. Burden of this issue was on the insurance company which was not discharged by leading any positive evidence or eliciting support in cross examination of the witnesses of the claimant. The evidence of the claimant coupled with the evidence of RW2 Sanjay Kumar, who was driver of the ill-fated vehicle, conclusively proved this issue. Ext.RW5/A is the report submitted by Mr. P.S. Chandel, Advocate which states that the accident had taken place due to rash or negligent driving on the part of the driver and that it was carrying crushed stones; the person travelling in the vehicle was gratuitous passenger. I do not find that this report in any manner substantiates the case of the insurance company for the reason that the report has not been proved by examining those of the witnesses who were travelling in the vehicle or those on whose purported statement the findings have been arrived at. No other point is urged before me. In these circumstances, there is no merit in this appeal, which is accordingly dismissed.