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2014 DIGILAW 1783 (HP)

Oriental Insurance Company Ltd. v. Indira Devi

2014-11-28

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the judgment and award dated 5.11.2009, passed by the Motor Accident Claims Tribunal, Mandi, in Claim Petition No. 82 of 2007, (hereinafter referred to as ?the Tribunal?, for short?) whereby the claim petition filed by the claimants came to be allowed and compensation to the tune of Rs.5,33,400/- came to be awarded in favour of the claimants and insurance company was saddled with the liability, for short, ?the impugned award?, on the grounds taken in the memo of appeal. 2. The claimants and insured have not questioned the impugned award on any ground, thus it has attained finality so far it relates to them. 3. The insurer/appellant has questioned the impugned award on the ground that the Tribunal has fallen in error in saddling the insurance company with the liability and has prayed for setting aside the impugned award and dismissal of the claim petition, on the ground taken in the memo of appeal. BRIEF FACTS. 4. Khem Raj was travelling in a Mahindra Pick-up bearing registration No. HP-07-5359 on 23.4.2004 at about 10 a.m., became victim of the road accident, which was caused by its driver, namely, Prem Singh who has driven the said Mahinder Pick-up rashly and negligently. 5. The claimants, who are widow, minor daughters and parents, had invoked the jurisdiction of the Tribunal, in terms of Section 166 of the Motor Vehicles Act, for short ?the Act?, for the grant of compensation, on the ground that they have lost the bread earner of the family. It is averred that he was travelling in the said offending vehicle as a coolie-cum-clerk and as care taker of the fruits. 6. The respondents, i.e., insurer, driver and owner contested the claim petition and following issues came to be framed by the Tribunal: (i) Whether on 23.4.2004 at about 10.00 at Baglyara the respondent No.3 was driving Mahindra Pick-up bearing No. HP-07-5359 rashly and negligently and as such caused the death of one Sh. Khem Raj? ……OPP (ii) If issue No. 1 is proved, to what amount of compensation, the petitioner is entitled to and from whom? OPP (iii) Whether the driver of Mahindra Pick-up NO. HP-07-5359 was not having any valid and effective driving licence at the time of the accident? OPR (iv) Whether the deceased was travelling in the vehicle as a gratuitous passenger? OPR. (v) Relief. OPP (iii) Whether the driver of Mahindra Pick-up NO. HP-07-5359 was not having any valid and effective driving licence at the time of the accident? OPR (iv) Whether the deceased was travelling in the vehicle as a gratuitous passenger? OPR. (v) Relief. 7. The claimants have examined Suresh Kumar (PW1), Karam Singh (PW3), Om Prakash (PW4) and Indira Devi widow of deceased also stepped into the witness-box as PW2. 8. The insurer, owner and driver have not examined any witness. However, Desh Raj owner of the vehicle stepped as DW1 in the witness-box. The claimants have also placed on record, copies of FIR, (Ext. PA), copy of Pariwar Register (Ext. PB), copy of Post-mortem report (Ext. PC) and academic certificate of Diploma of the deceased (Ext.PD). 9. The Tribunal, after scanning the evidence held that the claimants have proved by leading oral as well as documentary evidence that the driver Prem Singh has driven the vehicle rashly and negligently, on the said date and has caused the accident in which deceased lost his life. Prem Singh has not questioned the findings returned by the Tribunal and even is not in dispute in this appeal. Accordingly findings on Issue No. 1 are upheld. 10. I deem it proper to deal with Issues No. 3 and 4 before I deal with Issue No. 2. 11. Issue No. 3. It was for the insurer to prove that the driver was not having a valid and effective driving licence. The insurer has not led any evidence thereby failed to discharge the onus. Thus, findings returned on issue No. 3 are accordingly upheld. 12. Issue No. 4. The insurer has to prove Issue No. 4 and discharge the onus, has not led any evidence. It is beaten law of the land that it is for the insurer to plead and prove that the deceased was traveling in the vehicle as a gratuitous passenger and owner has committed willful breach, has not led any evidence, thus failed to discharge the onus. 13. This Court in FAO No. 362 of 2012 titled ICICI Lombard General Insurance Company versus Sumitra Devi and others, in terms of the apex Court judgment in case titled National Insurance Co. 13. This Court in FAO No. 362 of 2012 titled ICICI Lombard General Insurance Company versus Sumitra Devi and others, in terms of the apex Court judgment in case titled National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 SC 1531 , held that the insurer has to plead and prove that the deceased was a gratuitous passenger, which they have failed to do so. The relevant portion of para 105 of the apex Court judgment, supra reads as under:- ?105.. (i)…. (ii)….. (iii)….. (iv) The insurance company are, however, with a view to avoid their liability, must not only establish the available defence (s) raised in the said proceedings; but must also establish =breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them.? 14. In FAO No. 169 of 2011 titled Shanti Devi versus National Insurance Company & others decided on 25.7.2014, along with connected matters, this Court also took the same view and held that the Insurance Company has to prove that deceased was travelling in the vehicle as a gratuitous passenger. Accordingly, findings returned on issue No. 4 are upheld. 15. Issue No. 2. The deceased was 28 years of age at the time of the accident and claimants have pleaded and proved that the deceased was earning Rs.10000/- per month. He was also earning some income from agriculture vocations. The Tribunal, after examining the record, evidence and after making a guess work held that the deceased was earning not less than 3600/- per moth and after making 1/3rd deduction, held that the claimants have lost source of dependency to the tune of Rs.2400/- per month. The Tribunal also rightly applied the multiplier of ?12?. 16. It appears that the Tribunal has fallen in error in assessing the income of the deceased. However, claimants have not questioned the same, is reluctantly upheld. 17. The learned counsel for the appellant has argued that the claimants had filed application before the Commissioner, under the workmen's Compensation Act, which was dismissed. Thus, the claim petition was not maintainable. 16. It appears that the Tribunal has fallen in error in assessing the income of the deceased. However, claimants have not questioned the same, is reluctantly upheld. 17. The learned counsel for the appellant has argued that the claimants had filed application before the Commissioner, under the workmen's Compensation Act, which was dismissed. Thus, the claim petition was not maintainable. The claimants have admitted in the claim petition that they had filed petition before the Commissioner, under the Workmen's Compensation Act, which was dismissed on the ground that the deceased was not a workman, in terms of mandate of the Workmen's Compensation Act, 1923 are not estopped or precluded from filing the claim petition in terms of the provisions of Section 166 of the Act. The claimants have specifically averred that the deceased was coolie-cum-clerk and was also travelling in the vehicle as owner of the fruits, which stands admitted by PW5, driver, owner and finds mention in paras 28 and 32 of the impugned award. It is apt to reproduce paras 28 and 32 of the impugned award herein: ?28.Sh. Jassa Ram PW-5 by way of affidavit has testified that the deceased was working as coolie-cum- conductor with the Mahindra Pick-up No. HP07-5359 and was going to load vegetables at Thunag and deceased was carrying his 3 to 4 bags of peas when the vehicle met with an accident. He in crossexaminations stated that he did not know that in what capacity the deceased was sitting in the vehicle. Ext. PE was copy of order dated 27.11.2006 passed by the Commissioner, Gohar. 29-31….. ……. 32. The respondent No. 3 on account of the fact that the claim of the petitioners under the Workmen Compensation Act was declined by the Commissioner, Gohar per Ext.PE on the ground that the deceased was not cleaner of the vehicle cannot contend that the deceased was travelling in the vehicle as gratuitous passenger. The Commissioner in the order has observed that the deceased was travelling in the jeep as dealer of the peas. This strengthens the case of the petitioners that the deceased was working as coolie-cum-cleaner and caretaker of the goods even if the capacity of the deceased as a cleaner is not considered.? 18. The Commissioner in the order has observed that the deceased was travelling in the jeep as dealer of the peas. This strengthens the case of the petitioners that the deceased was working as coolie-cum-cleaner and caretaker of the goods even if the capacity of the deceased as a cleaner is not considered.? 18. It is also a fact that the owner had filed a petition before the Commissioner under the Workmen's Compensation Act and that does not, in any way, affect the rights of the claimants and Tribunal has rightly recorded the findings on this issue in paras 30 and 33 of the impugned award. It is apt to reproduce paras 30 and 33 of the impugned award herein: ?30.The respondent Nos. 1 and 3 in rebuttal have adduced Ext. PA copy of order passed by the Consumer Disputes Redressal Forum Mandi dated 11.8.2005 and copy of complaint of the respondent No. Ext.RB dated 9.12.2004. 31-32. 33. The respondent No.2 before the learned Consumer Forum did not come up with the plea that the deceased was travelling in the vehicle as a gratuitous passenger and the complaint rather makes out that the respondent No. 1 has contested the repudiation of own damage claim filed by the respondent No.2 on account of travelling of gratuitous passenger. The learned Forum per order Ex. RA did not find any strength in the case of the respondent and the claim of the respondent No.1 was allowed. The respondents have adduced no evidence to substantiate that the deceased was travelling in the Mahindra Pick-up no.HP07-5359 as a gratuitous passenger. The respondent No. 3 has failed to substantiate that the deceased was travelling in Mahindra Pick-upno.HP07-5359 as a gratuitous passenger. This issue is decided against the respondent No.3.? 19. Having said so, no interference is called for. Accordingly, the appeal merits dismissal and is accordingly dismissed and the impugned award is upheld. 20. The Registry is directed to release the awarded amount in favour of the claimants, through payee's account cheque, strictly in terms of the conditions contained in the impugned award. Send down the record forthwith.