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2014 DIGILAW 1301 (HP)

Oriental Insurance Company v. Lekh Raj

2014-09-19

MANSOOR AHMAD MIR

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Judgment Mansoor Ahmad Mir, J. Subject matter of this appeal is the award, dated 29th December, 2006, made by the Motor Accident Claims Tribunal, Chamba, (hereinafter referred to as the Tribunal), in Claim Petition No.71 of 2005, titled Lekh Raj and anr. Vs. Reena Thakur and others, whereby compensation to the tune of Rs.2,66,000/-, with interest at the rate of 9% per annum from the date of filing of the claim petition till its realization, was awarded in favour of the claimants and the insurer was saddled with the liability, (for short, the impugned award). 2. The insurer, feeling aggrieved and dissatisfied, has questioned the impugned award on various grounds taken in the memo of appeal. Brief facts: 3. Kiran Kumar became victim of the vehicular accident, which was caused by the driver, namely, Pankaj Kumar, while driving the vehicle bearing registration No.HP-48-1277, rashly and negligent on 15th October, 2005 at 8.30 a.m., at Mai-ka-Bag, Chamba Town, sustained injuries and succumbed to the same. The claimants, being the parents of the deceased, sought compensation to the tune of Rs.7.00 lacs as per the break-ups given in the claim petition. It was averred by the claimants that the deceased was a labourer, earning Rs.5,000/- per month by performing the job of loading and unloading, of 24 years of age at the time of accident and they, being dependant on the deceased, lost source of dependency. 4. The owner, the driver and the insurer resisted the Claim Petition by filing replies. 5. On the pleadings of the parties, the following issues were settled by the Tribunal: 1. Whether on 15.10.2005 at 8.30 AM at Mai-Ka-Bag, Chamba town, Shri Kiran Kumar son of petitioners had driving of respondent No.2 Pankaj Kumar as alleged? OPP 2. If issue No.1 is proved to what amount of compensation the petitioners are entitled to and from whom? OPP 3. Whether the petition is not maintainable in the present form? OPR 4. Whether the petitioners have no cause of action to file the petition? OPR 1 & 2 5. Whether the petitioners are estopped from filing the petition due to the wrong acts of the deceased as alleged? OPR 1 & 2 6. Whether the driver of the offending vehicle was not having a valid and effective driving licence at the time of accident as alleged? OPR 3 7. OPR 1 & 2 5. Whether the petitioners are estopped from filing the petition due to the wrong acts of the deceased as alleged? OPR 1 & 2 6. Whether the driver of the offending vehicle was not having a valid and effective driving licence at the time of accident as alleged? OPR 3 7. Whether the offending vehicle was being plied in contravention of the conditions of the Insurance Policy as alleged? OPR 3 8. Whether the deceased was a gratuitous passenger hence insurance company is not liable to pay any compensation as alleged? OPR 3 9. Relief. 6. In order to prove their case, the claimants examined three witnesses, the driver and the owner examined one witness, while the insurer led no evidence. 7. The Tribunal after scanning the evidence held that the claimants have proved, by leading oral as well as documentary evidence, that the driver was driving the offending vehicle rashly and negligently and caused the accident, in which deceased Kiran Kumar sustained injuries and succumbed to the same. Thus, the findings returned on issue No.1 are upheld. 8. To prove issues No.3, 4 and 5, the respondents have led no evidence. Thus, the Tribunal has rightly decided these issues against the respondents and accordingly, the findings returned by the Tribunal on these issues are upheld. 9. Onus to prove issues No.6 and 7 was on the insurer. The insurer has not led any evidence to prove that the driver was not having a valid driving licence. The insurer has also failed to lead any evidence to the effect that the owner had committed any willful breach and the vehicle was being driven in violation of the route permit or the terms contained in the insurance policy. Thus, the Tribunal has rightly decided Issues No.6 and 7 against the insurer. 10. As far as issue No.8 is concerned, the insurer had to prove that the deceased was traveling in the offending vehicle as gratuitous passenger, had not led any evidence to that effect. The claimants have specifically averred in paragraphs 10 and 24 of the Claim Petition that the deceased was engaged by the owner and the driver as a labourer for loading and unloading the goods. The driver and the owner have not denied the said factum the insurer has not denied the averments contained in paragraph 24 of the Claim Petition specifically. The driver and the owner have not denied the said factum the insurer has not denied the averments contained in paragraph 24 of the Claim Petition specifically. However, in reply to the averments contained in paragraph 10, it was pleaded that the deceased was traveling in the offending vehicle as gratuitous passenger, but failed to prove the same. 11. The insurer in the memo of appeal has taken a U-turn by pleading that the deceased was himself responsible for causing the accident, was a tortfeasor and the accident was the outcome of his misadventure in trying the hands on the wheels without any knowledge of driving a vehicle, which plea was never taken by the insurer before the Tribunal. Thus, the ground taken in the appeal is an afterthought. Therefore, the findings returned by the Tribunal are liable to be upheld and the same are upheld. 12. So far as issue No.2 is concerned, the Tribunal, after making guess work, assessed the monthly income of the deceased at Rs.2,000/- and after deducting 50% towards his personal expenses, held that the claimants lost source of dependency to the tune of Rs.1,000/- per month. The Tribunal has rightly made the assessment. Thus, the findings returned by the Tribunal are also upheld. 13. Having said so, the appeal merits to be dismissed, the same is dismissed accordingly and the impugned award is upheld. The Registry is directed to release the award amount in favour of the claimants strictly in terms of the impugned award.