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2014 DIGILAW 1019 (HP)

Nirmala Devi v. Ravinder Kumar

2014-08-01

MANSOOR AHMAD MIR

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JUDGMENT : - Mansoor Ahmad Mir, Chief Justice (Oral) Both these appeals are directed against the award, dated 28th September, 2011, passed by the Motor Accident Claims Tribunal, Hamirpur, H.P. (hereinafter referred to as “the Tribunal”) in MAC Petition No. 44 of 2008, titled as Ranjit Singh versus Smt. Nirmla Devi & others, whereby compensation to the tune of Rs. 2,48,967/- with interest @ 7.5% per annum from the date of filing of petition till its realization came to be awarded in favour of the claimant-injured and against the owner-insured, but the insurer was asked to first satisfy the award with a right to recover the entire compensation amount from the owner-insured and the driver of the offending vehicle (hereinafter referred to as “the impugned award), on the grounds taken in the memo of appeals. Brief facts: 2. Shri Gagan Deep Singh, s/o Smt. Nirmla Devi, has driven the scooter, bearing registration No. PB-16A-9477, rashly and negligently on 21st December, 2006, hit the claimant-injured, who was walking on the side of the road at Jalgran Mor, near Rakkar in District Una, who sustained injuries, was shifted to Civil Hospital, Una, was referred to Zonal Hospital, Hamirpur and suffered 46% disability. FIR No. 548/2006 was registered under Sections 279, 337, 338 and 201 of the Indian Penal Code (hereinafter referred to as “the IPC”) at Police Station Una against the driver of the offending scooter. 3. Claimant-Ranjit Singh, being the injured, filed the claim petition for grant of compensation to the tune of Rs. 10,00,000/- as per the break-ups given in the claim petition. 4. The owner-insured, the driver and the insurer of the offending scooter resisted the claim petition on the grounds taken in the respective memo of objections. 5. The Tribunal, on the basis of the pleadings of the parties, framed the following issues on 5th February, 2010: “1. Whether the petitioner, Ranjeet Singh, has suffered injuries due to rash and negligent driving of Scooter No. PB-16A-9477 by its driver, respondent No. 2, as alleged? OPP 2. If issue No. 1 is proved in affirmative, whether the petitioner/claimant is entitled to compensation, if so, to what amount and from which of the respondents? OPP 3. Whether the petition is not maintainable in the present form? OPRs 4. OPP 2. If issue No. 1 is proved in affirmative, whether the petitioner/claimant is entitled to compensation, if so, to what amount and from which of the respondents? OPP 3. Whether the petition is not maintainable in the present form? OPRs 4. Whether the vehicle in question was being driven by respondent No. 2, a minor, at the time of accident without holding any valid and effective driving licence, as alleged? OPR-3 5. Relief.” 6. The claimant-injured has examined seven witnesses and has also produced documents in support of his claim. The respondents have examined three witnesses. The Tribunal, after scanning the evidence, oral as well as documentary, held that the driver-Gagan Deep Singh, son of the owner of the offending scooter, namely Smt. Nirmla Devi, has driven the scooter rashly and negligently on the said date and caused the accident. 7. The claimant-injured has not questioned the impugned the award, thus, has attained finality so far it relates to him. 8. The owner-insured and the driver of the offending scooter have questioned the impugned award by the medium of FAO No. 10 of 2012 on the grounds taken in the memo of appeal. 9. I have gone through the findings returned by the Tribunal and am of the considered view that the claimant-injured and the insurer have proved by leading oral as well as documentary evidence that Gagan Deep Singh, who was minor at the relevant point of time, had driven the offending scooter rashly and negligently and had caused the accident, in which the claimant- injured sustained injuries and suffered 46% permanent disability. 10. Before I deal with issues No. 1 and 2, I deem it proper to deal with issues No. 3 and 4. Issue No. 3: 11. The onus to prove this issue was on the insurer, which it has failed to do so. However, I have gone through the claim petition and a bare perusal of the same do disclose that the claim petition, on the face of it, is maintainable. Accordingly, issue No. 3 came to be rightly decided against the respondents and the findings returned on this issue by the Tribunal are upheld. Issue No. 4: 12. Admittedly, driver of the offending scooter, namely Shri Gagan Deep Singh, was minor at the time of accident and was not holding valid and effective driving licence. Accordingly, issue No. 3 came to be rightly decided against the respondents and the findings returned on this issue by the Tribunal are upheld. Issue No. 4: 12. Admittedly, driver of the offending scooter, namely Shri Gagan Deep Singh, was minor at the time of accident and was not holding valid and effective driving licence. Even otherwise, his mother, the owner-insured of the offending scooter, Smt. Nirmla Devi, has stated that her son was minor at the relevant point of time, but she has not handed over the scooter to him; she was working as a teacher in a school, had parked the scooter in front of her house, the keys were in her house and she has exercised due care and caution. 13. I am of the considered view that the Tribunal has rightly held that the driver of the offending scooter was not having valid and effective driving licence. Accordingly, the findings returned by the Tribunal on issue No. 4 are upheld. Issues No. 1 and 2: 14. The Tribunal, after scanning all the documents available on the file including the evidence, held that the accident was outcome of the rash and negligent driving of the driver of the offending vehicle-scooter and held the claimant-injured entitled for compensation to the tune of Rs. 2,48,967/- with interest @ 7.5% per annum. 15. The claimant-injured has not questioned the same. I have gone through the record, bills and other documents and am of the considered view that the amount of compensation is just and reasonable in the given circumstances of the case. 16. Mr. Anup Rattan, learned counsel for the appellants in FAO No. 10 of 2012, on 25th July, 2014, argued that the owner of the offending scooter had taken due care and caution and she has not committed any willful breach. The argument, on the face of it, is not tenable for the following reasons: 17. The owner-insured of the offending scooter, Smt. Nirmla Devi, is the mother of the driver of the offending scooter, Sh. Gagan Deep Singh. She had not stated that she had kept the keys of the scooter in a safe custody and her son had taken the same after breaking the lock or otherwise. Her son, who was minor at the relevant point of time, has caused the accident, she cannot avoid liability. Gagan Deep Singh. She had not stated that she had kept the keys of the scooter in a safe custody and her son had taken the same after breaking the lock or otherwise. Her son, who was minor at the relevant point of time, has caused the accident, she cannot avoid liability. Further, she has not lodged any complaint against Shri Gagan Deep Singh for taking and driving the scooter without her consent. 18. The insurer has questioned the impugned award by the medium of FAO No. 20 of 2012 on the ground that the owner- insured of the offending scooter has committed willful breach; the insurer was to be exonerated and the owner-insured of the offending vehicle had to satisfy the award. 19. The injured-claimant is a third party, is covered in terms of the insurance contract. Thus, the Tribunal has rightly granted right of recovery to the insurer of the offending scooter and the owner-insured of the offending vehicle came to be rightly saddled with liability. 20. Having said so, both these appeals are dismissed and the impugned award is upheld. 21. Registry is directed to release the awarded amount in favour of the claimant-injured strictly as per the terms and conditions contained in the impugned award. 22. Send down the records after placing copy of the judgment on each of the files.