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2014 DIGILAW 1025 (HP)

United India Insurance Company Ltd. v. Kamla Devi

2014-08-01

MANSOOR AHMAD MIR

body2014
JUDGMENT : - Mansoor Ahmad Mir, Chief Justice (Oral) In FAO No. 197 of 2012, the challenge is to the judgment and award dated 20.1.2012, made by the Motor Accidents Claims Tribunal(1), Mandi, H.P., in Claim petition No. 80 of 2010, titled Kamla Devi and others versus Sh. Surajmani and others, whereby compensation to the tune of `4,87,000/- alongwith interest @7.5% per annum came to be awarded in and insurer came to be saddled with the liability. 2. In FAO No. 198 of 2012, arising of the same accident, the challenge is to the award of the same date and passed by the same Tribunal but in another claim petition, i.e., Claim Petition No. 81 of 2010, titled Smt. Kamla Devi and others versus Surajmani and others whereby compensation to the tune of `4,87,000/- alongwith interest @7 ½ % per annum came to be awarded in favour of the claimants against the driver and owner and insurer came to be saddled with the liability, for short “the impugned awards.” 3. The insurer-appellant has questioned the impugned awards by the medium of these appeals on the ground that the Tribunal has wrongly saddled the insurer with the liability, thus, I deem it proper to determine both these appeals by this common judgment. 4. In both the claim petitions the owner-insured/driver have not questioned the impugned awards on any ground, thus it attained finality so far as the awards relate to them. 5. The core question in these appeals is the deceased were travelling in the offending vehicle as gratuitous passengers. While marshalling out the arguments, the learned counsel for the appellant(s) argued that at the time of the accident, no goods were found in the offending vehicle and insurer-appellant has examined ASI Shyam Lal, Investigating Officer in its defence, who has supported the case of the insurer-appellant and the Tribunal has fallen in error in saddling the insurer with the liability. 6. In order to examine this issue, I deem it proper to give brief resume of the facts of the case the womb of which has given birth to these appeals. 7. The claimants in para 24 of the claim petitions have specifically averred that the deceased were travelling in the vehicle for carrying cement after its purchase, they made a request to Mr. 7. The claimants in para 24 of the claim petitions have specifically averred that the deceased were travelling in the vehicle for carrying cement after its purchase, they made a request to Mr. Surajmani and Beli Ram driver of the offending vehicle, who accepted their requests and accordingly, they hired the vehicle (Tempo Trax) bearing registration No. HP65-4077. The said vehicle, unfortunately met with an accident because of rash and negligent driving of its driver Beli Ram. The injuries. 8. The owner-insured and driver of the vehicle have not denied the factum of accident however; they stated that the accident was not outcome of the rash and negligent driving of the driver but because of mechanical defect, i.e. the brake failure. The insurer-appellant denied the averments contained in para 24 of the claim petitions evasively and virtually they have stated that the claimants should be put to strict proof. Thus, it was for the insurer to plead and prove that the deceased were travelling in the vehicle as gratuitous passengers which they have failed to do so. However, before I deal with the issues No. 3 to 5, I deem it proper to deal with issues No. 1 and 2, as framed by the Tribunal below in both the impugned awards, which are not in dispute. 9. There is ample evidence, oral as well as documentary, on the record, led by the claimants to the effect that the driver has driven the vehicle rashly and negligently and caused the accident before the deceased could purchase the goods, i.e., cement. Neither the owner nor the appellant rebutted. Viewed thus, the Tribunal has rightly decided issue No. 1 in favour of the claimants. 10. The Tribunal, after recording findings on issue No. 2 held that the claimants have lost source of dependency and came to the conclusion that the claimants are entitled to compensation to the tune of `4,87,000/- each in both the appeals with interest, as mentioned above, which is not in dispute and accordingly, it is upheld. 11. It was for the insurer to discharge the onus and to prove issues 3 to 5 which they have failed to do so. 12. The driver has appeared in the witness box and has supported the case of the claimants and has not questioned the impugned awards on any grounds, as stated supra. 11. It was for the insurer to discharge the onus and to prove issues 3 to 5 which they have failed to do so. 12. The driver has appeared in the witness box and has supported the case of the claimants and has not questioned the impugned awards on any grounds, as stated supra. However, the insurer has examined ASI Shayam Lal, who specifically deposed that he has conducted the investigation of the case. During the investigation, he has found that the driver has driven the vehicle rashly and negligently. He has also specifically stated that deceased had hired the vehicle for purchasing cement, but because of the accident, they could corroborates the averments contained in para 24 of the claim petitions. 13. This Court in FAO No. 362 of 2012 titled ICICI Lombard General Insurance Company versus Sumitra Devi and others, in terms of the apex court judgment in case titled National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 SC 1531 , held that the insurer has to plead and prove that the deceased was a gratuitous passenger, which they have failed to do so. The relevant portion of para 105 of the apex Court judgment, supra reads as under:- “105.. (i)…. (ii)….. (iii)….. (iv) The insurance company are, however, with a view to avoid their liability, must not only establish the available defence(s) raised in the said proceedings; but must also establish ‘breach’ on the part of the owner of the vehicle; the burden of proof wherefore would be on them.” 14. In FAO No. 169 of 2011 titled Shanti Devi versus National Insurance Company & others decided on 25.7.2014, along with connected matters, this Court also took the same view and held gratuitous passenger. 15. Having said so, the Tribunal has rightly returned the findings and saddled the insurer with the liability, which require no interference. 16. Accordingly, both the appeals are dismissed and the impugned awards are upheld. The Registry is directed to release the awarded amount in favour of the claimants, through payee’s account cheque, strictly in terms of the conditions contained in the impugned awards. 17. Send down the records, after placing copy of this judgment on both the files.