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2014 DIGILAW 1776 (HP)

Oriental Insurance Company Ltd. v. Mokshri Devi

2014-11-28

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Appellant-insurer has called in question the award, dated 22nd September, 2007, made by the Motor Accident Claims Tribunal, Kullu, District Kullu, H.P. (hereinafter referred to as "the Tribunal") in Claim Petition No. 75 of 2006, titled as Smt. Mokshri Devi & others versus Jagan Nath & others, whereby compensation to the tune of Rs. 3,75,000/- with interest @ 7% per annum from the date of filing of the petition till its realization came to be awarded in favour of the claimants, as per the apportionment and against the owner-insured and the insurer came to be fastened with liability (hereinafter referred to as "the impugned award"), on the grounds taken in the memo of appeal. 2. The claimants, the owner-insured and the driver have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. Appellant-insurer has questioned the impugned award on the following two grounds: (i) That the driver of the offending vehicle was not holding a valid and effective driving licence; (ii) That the deceased was travelling in the offending vehicle as a gratuitous passenger. 4. In order to determine the issue, it would be profitable to give a brief resume of the case herein: Brief facts: 5. The claimants, being the victims of the motor vehicular accident, invoked the jurisdiction of the Tribunal in terms of Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the MV Act") for grant of compensation on the ground that their bread earner, deceased-Om Chand, met with an accident on 7th May, 2006, near GPS Barnout, District Kullu, which was caused by the driver, namely Shri Prem Bahadur, while driving Max Jeep, bearing registration No. HP-66-0780, rashly and negligently. He sustained multiple injuries, was taken to Zonal Hospital, Kullu and succumbed to the injuries. The claimants have sought compensation to the tune of Rs. 15,00,000/-, as per the break-ups given in the claim petition. 6. The owner-insured, the driver and the insurer contested the claim petition on the grounds taken in the respective memo of objections. 7. Following issues came to be framed by the Tribunal on 8th March, 2007: "1. The claimants have sought compensation to the tune of Rs. 15,00,000/-, as per the break-ups given in the claim petition. 6. The owner-insured, the driver and the insurer contested the claim petition on the grounds taken in the respective memo of objections. 7. Following issues came to be framed by the Tribunal on 8th March, 2007: "1. Whether the deceased Shri Om Chand died in a motor accident caused on 7.5.2006 near GPS Barnaut as a result of rash and negligent driving of Max Jeep bearing registration No. HP-66-0780 by its driver-respondent No. 2? OPP 2. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled and from whom? OPP 3. Whether the driver of the vehicle in question was not holding a valid and effective driving licence at the time of accident? OPR-3 4. Whether the vehicle was being plied in violation of the terms and conditions of the insurance policy at the time of accident, as alleged? OPR-3 5. Whether the deceased was travelling as an unauthorised/gratuitous passenger in the vehicle in question at the time of accident? OPR-3 6. Relief." 8. The claimants have examined Dr. Rajesh Thakur as PW-1, HC Hari Singh as PW-2, Shri Hitesh Kumar as PW-4, Shri Alam Chand as PW-5 and one of the claimants, Smt. Mokshri Devi, has herself stepped into the witness box as PW-3. The owner has examined Miss Ashita Bodh, Criminal Ahlmad in the office of CJM Kullu as RW-1 and the driver-Prem Bahadur himself appeared as RW-2. The insurer has examined Shri Davinder Singh, Summary Clerk, CJM Kullu as RW-3; Shri Mohan Singh, Licence Clerk, SDM Office, Kullu, as RW-4, Shri Chander Mohan Rawat, Senior Assistant, RTO Dehradun as RW-5, Shri Krishan Sharma, Junior Assistant, RTO Kullu, as RW-6 and ASI Gangvir Singh as RW-7. Issue No. 1: 9. There is no dispute about the findings returned on issue No. 1. However, I have gone through the impugned award and the record. The claimants have proved by leading evidence that the driver had driven the offending vehicle rashly and negligently at the time of accident in which deceased-Om Chand sustained injuries and succumbed to the injuries. Accordingly, findings returned by the Tribunal on issue No. 1 are upheld. 10. Before I deal with issue No. 2, I deem it proper to determine issues No. 3 to 5. Accordingly, findings returned by the Tribunal on issue No. 1 are upheld. 10. Before I deal with issue No. 2, I deem it proper to determine issues No. 3 to 5. Issue No. 3: 11. Appellant-insurer had to discharge the onus, has not led any evidence to prove that the driver of the offending vehicle was not having a valid and effective driving licence. Admittedly, RW-6, Shri Krishan Sharma, Junior Assistant from the office of Regional Transport Office, Kullu, has stepped into the witness box and has deposed that the licence was renewed from their office and was issued from Dehradun. The Tribunal has rightly returned the findings in paras 15 and 16 of the impugned award. 12. Keeping the statement of RW-6 in view, one comes to an inescapable conclusion that the driver of the offending vehicle was having a valid and effective driving licence at the relevant point of time and the renewal of the same is not in dispute. Accordingly, findings returned on issue No. 3 are upheld. Issue No. 4: 13. The appellant-insurer has also not proved, in order to seek exoneration, that the owner-insured has committed any willful breach. In view of findings returned by the Tribunal in para 16 of the impugned award and keeping in view the admitted fact that the driving licence was issued at Dehradun and renewed at Kullu, it cannot be said and held that the ownerinsured has committed any willful breach. Hence, the findings returned on issue No. 4 are also upheld. Issue No. 5: 14. It was for the insurer to lead evidence and prove that the deceased was travelling as a gratuitous passenger in the offending vehicle at the relevant point of time. There is evidence on the file led by the claimants and the documents to the effect that the deceased was travelling in the offending vehicle as owner of timber. The Tribunal has rightly recorded findings that the insurer has failed to prove that the deceased was travelling as a gratuitous passenger and the findings returned on issue No. 5 are also upheld. Issue No. 2: 15. The Tribunal has rightly returned the findings and saddled the insurer with liability. The adequacy of the compensation is not in dispute. Accordingly, the findings returned on issue No. 2 are also upheld. 16. Viewed thus, the appeal merits to be dismissed. Issue No. 2: 15. The Tribunal has rightly returned the findings and saddled the insurer with liability. The adequacy of the compensation is not in dispute. Accordingly, the findings returned on issue No. 2 are also upheld. 16. Viewed thus, the appeal merits to be dismissed. Accordingly, the appeal is dismissed and the impugned award is upheld. 17. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee's account cheque. 18. Send down the record after placing copy of the judgment on Tribunal's file.