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2014 DIGILAW 1193 (HP)

Oriental Insurance Co. Ltd. v. Rattani Devi

2014-09-05

MANSOOR AHMAD MIR

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JUDGMENT Mansoor Ahmad Mir, J. Challenge in this appeal is to the award dated 28th November, 2006, made by the Motor Accidents Claims Tribunal (II), Solan, (hereinafter referred to as “the Tribunal”) in M.A.C. Petition No. 8 S/2 of 2006, titled as Rattani Devi and another versus Shri Joginder Singh & others, whereby compensation to the tune of Rs. 1,83,000/- with interest @ 9% per annum from the date of the claim petition till its realization, came to be awarded in favour of the claimants-respondent 1 & 2 herein and the appellant-insurer was saddled with liability (for short, the “impugned award”), on the grounds taken in the memo of appeal. Brief Facts: 2. The vehicle-Mahindra Pick-up bearing registration No. HP-12-A-5607, owned by Shri Joginder Singh, was being driven by driver, namely, Amar Singh, rashly and negligently, on 1st April, 2006, met with an accident at about 11.30 a.m, near Village Chalwni, Sub Tensil and P.S. Ramshehar, Tehsil Nalagarh, District Solan and Lakhwinder Singh, who was travelling in the said vehicle as owner of ration, sustained injuries and succumbed to the injuries. 3. The claimants filed 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 claim petition was resisted and contested by the appellant-insurer, the owner-insured and the driver. Following issues were framed by the Tribunal on 31.07.2006 :- “1. Whether the accident and consequent death of deceased Lakhwinder Singh on 1.4.2006 is attributed to the rash and negligent driving of the offending vehicle bearing No. 12-A-5607 by respondent No. 2 Amar Singh, as alleged, if so, its effect? …..OPP 2. Whether the petitioners are entitled to compensation, if so to what extent and from whom? ….OPP 3. Whether the deceased was gratuitous passenger and as such is not entitled to compensation as per terms and conditions of insurance policy, as alleged, if so, its effect? …OPR-3 4. Whether the respondent No. 2 was not having valid and effective driving licence to drive the offending vehicle on the date of accident, if so its effect? …OPR-3 5. Whether the offending vehicle was being driven in contravention of the terms and conditions of insurance cover, as alleged, if so, its effect? …OPR-3 6. Relief.” 5. The claimants have examined Shri Kamal Singh as PW-2. Smt. Rattani Devi, one of the claimants, also appeared in the witness box as PW-1. …OPR-3 5. Whether the offending vehicle was being driven in contravention of the terms and conditions of insurance cover, as alleged, if so, its effect? …OPR-3 6. Relief.” 5. The claimants have examined Shri Kamal Singh as PW-2. Smt. Rattani Devi, one of the claimants, also appeared in the witness box as PW-1. Owner-insured Joginder Singh appeared in the witness box as RW-1 and the insurer-Insurance Company has examined one Shri Mahender Singh, Senior Assistant as RW-2. 6. The Tribunal, after scanning the evidence, oral as well as documentary, decided all issues in favour of the claimants and against the driver, owner-insured and the insurer-National Insurance Company and held the claimants entitled to compensation to the tune of Rs. 1,83,000/- with interest @ 9% per annum from the date of the claim petition till realization of the award amount. The insurer-appellant was saddled with liability. 7. The claimants, the insured-owner and the driver have not questioned the impugned award on any count. Thus, it has attained finality so far as it relates to them. 8. The insurer-Oriental Insurance Company has questioned the impugned award by the medium of this appeal on the following grounds; (i) the deceased was travelling in the offending vehicle as a gratuitous passenger; (ii) the Insurance Company was not liable to be saddled with the liability; and (iii) the multiplier applied is not just and appropriate. Issue No. 1 9. The findings returned by the Tribunal on this issue are not in dispute. However, I have gone through the impugned award, pleadings and the evidence on the record. The claimants have proved by leading oral as well as documentary evidence that the driver has driven the offending vehicle in a rash and negligent manner on the fateful day and caused the accident, in which the deceased sustained injuries and succumbed to the injuries. Thus, the findings returned by the Tribunal on this issue are upheld. Issue No. 4. 10. The onus to prove this issue was upon the insurer-Insurance Company, but it failed to discharge the same. Thus, the findings returned by the Tribunal on this issue are also upheld. Issues No. 2, 3 & 5. 11. All these issues are inter-linked, so I deem it proper to take all these issues together for determination. 12. 10. The onus to prove this issue was upon the insurer-Insurance Company, but it failed to discharge the same. Thus, the findings returned by the Tribunal on this issue are also upheld. Issues No. 2, 3 & 5. 11. All these issues are inter-linked, so I deem it proper to take all these issues together for determination. 12. The claimants have specifically pleaded in para-24 of the claim petition that the deceased was travelling in the said vehicle as owner of goods. Owner-respondent No. 1 in reply to the claim petition has not denied the same and has virtually admitted the said fact. 13. The insurer-Insurance Company in its reply has denied para-24 of the claim petition and pleaded that the deceased was travelling in the said vehicle as a gratuitous passenger. 14. The claimants have proved by leading evidence oral as well as documentary that the deceased was traveling in the said vehicle as owner of the goods. The owner and the driver have not questioned the said fact, thus has attained finality so far as it relates to them. 15. It was for the insurer to plead and prove that the deceased was traveling in the offending vehicle as a gratuitous passenger, but it failed to do so. Thus, the findings returned by the Tribunal on issue No. 3 need no interference and are accordingly upheld. 16. It was also for the insurer to plead and prove that the driver has driven the offending vehicle in contravention of the terms and conditions of the insurance policy, but failed to do so. Thus, the findings returned by the Tribunal on issue No. 5 are also upheld. 17. The claimants have not questioned the adequacy of compensation. Admittedly, the deceased was 13 years of age at the time of accident. The minimum compensation to the tune of Rs. 1,83,000/- has been awarded to the claimants by the Tribunal, which cannot be said to be excessive, in any way. Accordingly, the findings returned by the Tribunal on issue No. 2 are also upheld. 18. Having said so, the appeal merits dismissal. The same is accordingly dismissed and the impugned award is upheld. 19. The Registry is directed to release the awarded amount in favour of the claimants, strictly in terms of the conditions contained in the impugned award, through payees account cheque. 20. 18. Having said so, the appeal merits dismissal. The same is accordingly dismissed and the impugned award is upheld. 19. The Registry is directed to release the awarded amount in favour of the claimants, strictly in terms of the conditions contained in the impugned award, through payees account cheque. 20. Send down the records after placing copy of the judgment on record.