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Himachal Pradesh High Court · body

2014 DIGILAW 1414 (HP)

National Insurance Company Ltd. v. Kanta Devi

2014-10-10

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award dated 31 st January, 2007, passed by the Motor Accident Claims Tribunal-II Fast Track Court, Hamirpur (for short, "the Tribunal") in MAC Petition No.54 of 2004/RBT 26/05, titled Kanta Devi & others v. Puneet Sharma & another, whereby compensation to the tune of Rs. 6,08,900/- along with interest at the rate of 6% per annum came to be awarded in favour of the claimants and against the insurer with a command to the insurer-appellant to satisfy the award (for short the "impugned award"). 2. Brief facts The claimants have invoked the jurisdiction of the Tribunal by the medium of claim petition in terms of Section 166 of the Motor Vehicles Act, 1988 (for short "the M.V. Act") for grant of compensation to the tune of Rs. 12 lacs as per the break-ups given in the claim petition on the ground that deceased Kewal Krishan became the victim of a vehicular accident, which was caused by the driver-cum-owner, namely, Arjan Singh while driving truck bearing registration No.HR-46- A-6606 rashly and negligently on 18th February, 2004 at about 6.00 p.m. near Sandhoia on National Highway at Dashmesh Hotel, District Bhilwara (Rajasthan). The deceased sustained injuries and succumbed to the same. The deceased was an employee of 7th Mile Stone Bhatia Complex Giani Border Ghaziabad (UP) and was earning Rs. 6,000/- per month plus Rs. 100/- as daily expenses. The claimants have sought compensation on the ground that they were dependents upon the deceased and lost source of dependency. 3. The owner has not appeared before the Tribunal and was set ex-parte. The insurer-appellant contested the claim petition by filing objections. 4. The following issues came to be framed in the claim petition on 8.8.2005:- "1. Whether Shri Kewal Krishan had died on account of rash and negligent driving of respondent No.1 of vehicle No. HR-46-A6606? OPP. 2. If Issue No.1 is proved, to what amount of compensation and from whom are the petitioners entitled to? OPP. 3. Whether the claim petition is not maintainable against the respondents? OPR.2. 4. Whether respondent No.1 had not been in possession of a valid and effective driving license at the time of accident, if so with what effect? OPR-2. 5. Whether the petitioners are estopped from filing the petition, by their act and conduct? OPR.2. 6. OPP. 3. Whether the claim petition is not maintainable against the respondents? OPR.2. 4. Whether respondent No.1 had not been in possession of a valid and effective driving license at the time of accident, if so with what effect? OPR-2. 5. Whether the petitioners are estopped from filing the petition, by their act and conduct? OPR.2. 6. Whether the claim petition is bad for non-joinder and mis-joinder of necessary parties? OPR.2. 7. Relief." 5. The claimants have examined the witnesses and proved the averments contained in the claim petition. The insurer has examined RW-1 Yog Raj, Clerk, Dealing Hand in the office of General Manager, Drivers Training Institute, Murthal, District Sonepat (Haryana). 6. The Tribunal, after examining the pleadings and scanning the evidence, oral as well as documentary, held that the claimants have proved all the issues and the insurer has failed to prove that the owner has committed any willful breach and saddled the insurer with the liability. 7. The claimants and the owner have not questioned the impugned award on any count, has attained finality so far it relates to them. 8. The insurer has questioned the impugned award on the ground that the owner-cum-driver was not having valid and effective driving licence to drive the offending vehicle at the time of accident. 9. In view of the above, issues No.1, 3, 5 and 6 are not in dispute and the findings returned on these issues are upheld. 10. The only dispute is with regard to issue No. 4 and issue No.2 to the effect whether the amount of compensation is to be recovered from the insurer. The driver-cum-owner has not contested the claim petition. The only evidence led before the Tribunal was the statement of RW-1 Yog Raj, in which he has specifically stated that the Training Institute was not having the power and authority to issue the driving licence and no licence was issued by the said institute. However, stated that certificate (Ext.RW-1/A) is correct to the extent that the driver was under training in the said institute from 22nd February 1999 to 24th February, 1999. 11. No driving licence is on the file. The only document on the file is a photo copy of certificate (Ext.RW- 1/A), which appears to have been issued by the said institute. 12. 11. No driving licence is on the file. The only document on the file is a photo copy of certificate (Ext.RW- 1/A), which appears to have been issued by the said institute. 12. Having said so, the driver was not having driving licence and the owner has committed the willful breach. 13. The claimants, being the third party, cannot be made to suffer. Thus, the insurer has to satisfy the claim of the third party with a right of recovery. 14. Accordingly, the impugned award is modified and the insurer is saddled with the liability to satisfy the entire award with right of recovery and is at liberty to lay a motion before the Tribunal for effecting recovery. 15. The Registry is directed to release the award amount in favour of the claimants, strictly as per the terms and conditions contained in the impugned award, through payees account cheque, after proper identification. 16. The impugned award is modified, as indicated above, and the appeal is disposed of along with all the pending applications.