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2014 DIGILAW 1637 (HP)

Dhiraj Sharma alias Vipin Kumar v. Bhagat Ram

2014-11-14

MANSOOR AHMAD MIR

body2014
JUDGMENT : Mansoor Ahmad Mir, J. These appeals are the outcome of one accident, allegedly caused by Dhiraj Kumar on 22.6.2004, at about 11.15 P.M., while driving the offending vehicle i.e. Mahindra Max Jeep No.HP-01A-3068 rashly and negligently, as a result of which Bal Raj Kaushal and Om Parkash died on the spot. FIR No.50 of 2004, dated 23rd June, 2004 was registered at Police Station, Nirmand. The dependants of Bal Raj Kaushal preferred Claim Petition No.46 of 2004 under Section 166 of the Motor Vehicles Act (for short the Act), for grant of compensation to the tune of Rs.20.00 lacs, while the dependants of deceased Om Parkash preferred Claim Petition No.43 of 2004, for grant of compensation to the tune of Rs.7.00 lacs, as per the break-ups given in the Claim Petitions. 2. The Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, (for short, the Tribunal), in terms of Award, dated 9th May, 2007, awarded a sum of Rs.7,85,000/- as compensation in favour of the claimants in Claim Petition No.46 of 2004 and the Tribunal, vide Award, dated 8th May, 2005, passed in Claim Petition No.43 of 2004, awarded Rs.4,24,000/- as compensation in favour of the claimants, and the insurer was saddled with the liability, with right of recovery from the owner of the offending vehicle. The award amount in both the claim petitions was to carry interest at the rate of 9% per annum from the date of institution of the Claim Petitions till realization. 3. Feeling aggrieved, the insured/owner has questioned the impugned awards, on the grounds taken in the memo of appeals. 4. The claimants and the insurer have not questioned the impugned awards on any ground. Accordingly, the same have attained finality qua them. 5. The only question to be determined in these two appeals is - whether the Tribunal has rightly granted right of recovery to the insurer. The answer is in the negative for the following reasons. 6. It appears that in regard to the accident in question, FIR No.50 of 2004, dated 23rd June, 2004, was registered in Police Station, Nirmand, under Sections 279, 337, 304AA of the Indian Penal Code (for short, IPC), and Section 185 of the Act against appellant Dhiraj Kumar. The answer is in the negative for the following reasons. 6. It appears that in regard to the accident in question, FIR No.50 of 2004, dated 23rd June, 2004, was registered in Police Station, Nirmand, under Sections 279, 337, 304AA of the Indian Penal Code (for short, IPC), and Section 185 of the Act against appellant Dhiraj Kumar. The Tribunal, after noticing the said FIR and the fact that the driver was charge sheeted under Section 185 of the Act, held that the insured had committed breach of terms of the insurance policy and accordingly, saddled the insurer with the liability at the first instance and granted right of recovery. 7. During the course of hearing, the learned counsel for the appellant has placed on record a copy of the judgment, dated 30th June, 2008, passed by Sessions Judge, Kinnaur at Rampur Bushahr in Sessions Trial No. 14 of 2005, titled State of Himachal Pradesh v. Dheeraj Kumar alias Vipin Kumar, resulting out of FIR No.50 of 2004. A perusal of the said judgment shows that the prosecution case came to be dismissed and the accused, i.e. the appellant in both the appeals, came to be acquitted. Thus, the said judgment is the conclusive proof of the fact that the charge under Section 185 of the Act has not been proved. The said judgment shall form part of this order. 8. In view of the above discussion, I am of the considered view that the Tribunal has wrongly granted right of recovery to the insurer. Accordingly, the impugned awards are modified to the extent that the insurer is saddled with the liability, without any right of recovery. 9. Both the appeals stand allowed and disposed of accordingly. Appeals allowed.