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2014 DIGILAW 1122 (HP)

Oriental Insurance Company Limited v. Kamla Devi

2014-08-22

MANSOOR AHMAD MIR

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JUDGMENT : - Mansoor Ahmad Mir, Chief Justice (Oral): This appeal is directed against the award, dated 21.2.2012, passed by Motor Accident Claims Tribunal, Kullu, (for short, the Tribunal), in Claim Petition No.33 of 2010, titled Kamla Devi and others versus Gehar Singh and others, whereby compensation to the tune of Rs.5,75,800/-, with interest at the rate of 9% per annum from the date of filing of the Claim Petition till realization, came to be awarded in favour of the claimants (respondents No.1 to 6 herein) and against the respondents, and the insurer/appellant was saddled with the liability to satisfy the award, (for short, the impugned award). 2. The claimants, the driver and the owner/insured have not questioned the impugned award, thus has attained finality so far as it relates to them. Only the insurer has questioned the impugned award on the ground that the Tribunal has fallen in error while saddling the insurance company with the liability. 3. Heard learned counsel for the parties. The appeal merits to be dismissed and the impugned award deserves to be upheld for the following reasons. Brief facts: 4. The claimants, being the victims of a vehicular accident, invoked the jurisdiction of the Tribunal in terms of Section 166 of the Motor Vehicles Act for grant of compensation to the tune of Rs.20.00 lacs, as per the break-ups given in the Claim Petition. It is averred in the Claim Petition that on 18.8.2010, the deceased was traveling in the tractor bearing registration No.HP 34A 0715, which was being driven by its driver, namely, Kundan rashly and negligently. When the tractor reached at a place Chong, the driver could not control the offending tractor and to avoid skidding, the deceased alighted from the said tractor to place a stone under the tyre of the tractor and in the process the deceased was got crushed. 5. The owner/insured, the driver and the insurer/appellant resisted the Claim Petition by filing replies. 6. On the pleadings of the parties, the following issues were settled by the Tribunal: “1. Whether Sh.Chiterdev died in the accident on account of rash and negligent driving of respondent No.2? OPP 2. If issue No.1 is proved in the affirmative, to what amount, the petitioners are entitled for compensation? OPP 3. Whether the Insurance Company is liable to make the payment of compensation as indemnifier? OPP 4. Whether Sh.Chiterdev died in the accident on account of rash and negligent driving of respondent No.2? OPP 2. If issue No.1 is proved in the affirmative, to what amount, the petitioners are entitled for compensation? OPP 3. Whether the Insurance Company is liable to make the payment of compensation as indemnifier? OPP 4. Whether the vehicle was driven in breach of the terms and conditions of the insurance policy? OPR-3 5. Whether the respondent No.2 was not having an effective and valid driving licence at the time of the accident? OPR-3 6. Relief.” 7. In order to prove their claim, the claimants examined PW-1 Kamla Devi (claimant), PW-2 Rajesh Bodh, PW-3 L.C. Bhuvneshwari and PW-4 Ghansham, while the respondents examined Kundan Lal (driver) as RW-1, Diler Singh and Ashok Kumar as RW-2 and RW-3, respectively. The claimants have also placed on record documents Exts.PW-1/A, PW-1/B, PW-2/A, PW-3/A and PW-4/A, i.e. affidavit, death certificate, postmortem report, affidavit of Neel Chand and copy of FIR, respectively. The respondents have placed on record Ext.RW-1/A (affidavit of Kundan Lal) and Exts.R-1 to R-7 i.e. driving licence, registration certificate, insurance, goods tax receipts and goods carriage permit, respectively. 8. The Tribunal, after analyzing the entire evidence, held that the claimants have proved by leading oral as well as documentary evidence that the driver of the offending tractor had driven the tractor rashly and negligently and caused the accident. Thus, issue No.1 framed in this regard was decided in favour of the claimants. The said issue is not in dispute. However, I have gone through the record and am of the considered view that the Tribunal has rightly decided Issue No.1 in favour of the claimants. 9. Before I deal with Issue No.2, I deem it proper to deal with Issues No.3, 4 and 5 at the first instance. Onus to prove issues No.4 and 5 was on the insurer/appellant. To prove Issue No.5, the insurer has not led any evidence that the driver was not having effective driving licence. Even otherwise, the learned counsel for the appellant/insurer, during the course of hearing, has not challenged the validity of the driving licence. Therefore, the findings returned by the Tribunal under Issue No.5 are upheld. 10. Coming to issues No.3 and 4, the insurer has failed to prove that the insured had committed any willful breach. Even otherwise, the learned counsel for the appellant/insurer, during the course of hearing, has not challenged the validity of the driving licence. Therefore, the findings returned by the Tribunal under Issue No.5 are upheld. 10. Coming to issues No.3 and 4, the insurer has failed to prove that the insured had committed any willful breach. It was for the insurer to plead and prove that the owner has committed willful breach of the terms and conditions contained in the insurance policy. The learned counsel for the appellant/insurer argued that the deceased was traveling in the offending tractor, which is in breach of the insurance policy and also violative of the terms and conditions contained in the permit. 11. While going through the record, one comes to inescapable conclusion that the deceased was traveling in the tractor, but at the relevant point of time, he had come down from the tractor and was trying to stop the tractor by placing a stone, but was got crushed. It is apt to reproduce paragraph 24(1) of the Claim Petition hereunder: “1. That on the fateful day of 18.8.2010 deceased Chiterdev was sitting on tractor No.HP-34-A-0715 as he was carrying sand in it. Respondent No.2 was driving the same in a rash and negligent manner. When the tractor reached near Chong curve, the respondent No.2 could not control the tractor and as such, the deceased got down from the tractor and try to stop the tractor from skidding by placing stone under the tyres, even then the respondent No.2 could not control the tractor. Hence, the accident took place due to rash and negligent driving of the respondent No.2 crushed the deceased under the tyre. As such, deceased died in the said accident, which occurred due to rash and negligent driving of the respondent No.2.” 12. The owner/insured and the driver (respondents No.1 and 2 in the Claim Petition) filed joint reply to the Claim Petition in which they have admitted the fact that at the relevant time, the deceased had come down from the tractor and was behind the tractor and the tractor suddenly reversed, due to which the deceased was got crushed under the tyre. It is profitable to reproduce hereunder paragraph 10 of the reply, which is their response to paragraph 24(1) of the Claim Petition reproduced hereinabove: “10. It is profitable to reproduce hereunder paragraph 10 of the reply, which is their response to paragraph 24(1) of the Claim Petition reproduced hereinabove: “10. That para No.24(1) of the petition is wrong that Chiter Dev was sitting in the vehicle in question. However, the replying respondent No.2 was carrying his sand in the tractor. It is also wrong that respondent No.2 was driving the tractor in a rash and negligent manner. It is also denied that when the tractor reached near Chong curve the respondent No.2 could not control the tractor and deceased got down from the tractor and tried to stop the tractor from skidding by placing stone under the tyres. It is denied that the accident took place due to the rash and negligent driving of the respondent No.2. As a matter of fact, the respondent No.2 had stopped the tract Chong Moar and himself had gone to urinate and when he came back, the deceased came behind the tractor and the tractor suddenly reversed and the deceased came under its tyre and as such, he died due to such injuries. There was no negligence of the replying respondent in driving the vehicle.” 13. The insurer, though has denied paragraph 21 of the Claim Petition, however, there is no specific reply to the averments contained in paragraph 21(1), reproduced supra. 14. To prove the factum that the deceased, at the relevant point of time, was not sitting in the offending tractor, the claimants have examined PW-4 Ghansham, who has specifically stated that the deceased was not sitting in the vehicle, but had got down from it, was trying to stop it from skidding and got crushed under the tyre. The driver of the offending vehicle, namely, Kundan, while appearing as RW-1, has also stated that the deceased was not sitting in the tractor at the relevant point of time, but had come down and was trying to stop the tractor from going in the reverse direction in which he failed and was got crushed. 15. The Tribunal, after examining the pleadings supra and the evidence has rightly held that the deceased was not traveling in the offending tractor, but had come down and was, thus, a third party. The Tribunal has rightly returned findings on issues No.3 and 4, which need no interference. 16. 15. The Tribunal, after examining the pleadings supra and the evidence has rightly held that the deceased was not traveling in the offending tractor, but had come down and was, thus, a third party. The Tribunal has rightly returned findings on issues No.3 and 4, which need no interference. 16. So far as Issue No.2 is concerned, the claimants have not questioned the adequacy of compensation. Even the insurer has not questioned the impugned award on that count. Therefore, findings recorded by the Tribunal under this issue are upheld. 17. Having said so, the appeal fails, the same is dismissed and the impugned award is upheld. Amount of compensation be released in favour of the claimants strictly in terms of the impugned award.