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Himachal Pradesh High Court · body

2014 DIGILAW 1963 (HP)

Oriental Insurance Company Ltd. v. Leela Devi

2014-12-19

MANSOOR AHMAD MIR

body2014
JUDGMENT : MANSOOR AHMAD MIR, J. 1. Insurer-appellant has questioned the judgment and award dated 21.12.2005, made by the Motor Accident Claims Tribunal-II, Solan, for short “the Tribunal” in MAC Petition No. 4-S/2 of 2004, titled Smt.Leela Devi and others versus Group Finance Unit and others, whereby compensation to the tune of Rs.4,20,167/- came to be awarded in favour of the claimants and against the insurer-appellant herein, hereinafter referred to as “the impugned award”, for short, on the grounds taken in the memo of appeal. 2. Claimants had invoked the jurisdiction of the Motor Accident Claims Tribunal for the grant of compensation to the tune of Rs.10 lacs, as per break-ups given in the claim petition. 3. Precisely, the case of the claimants was that on 21.5.1998, deceased Ram Swaroop was coming back to his home in the offending vehicle, i.e., tractor bearing registration No. 12191. He requested the driver of the tractor, namely, Surjeet Singh, to stop the tractor enabling him to answer the call of nature. He stopped the vehicle and the deceased, after alighting while covering a little distance on foot, on the side of the road, the driver of the tractor suddenly started driving the tractor rashly and negligently, could not control the tractor and it rolled down. Consequently, deceased was crushed and succumbed to the injuries. The details of the accident have been given in para 20 of the claim petition. 4. Respondents resisted and contested the claim petition by filing separate replies. 5. On the pleadings of the parties, following issues came to be framed by the Tribunal: “ (i) Whether on 21.5.1998 at 1 AM at village Lohara, the driver of the Tractor No.12191 was driving the Tractor rashly and negligently and as such caused the death of deceased Ram Swaroop? OPP. (ii) If issue No. 1 is proved, to what amount of compensation, the petitioners are entitled to and from whom? OPP. (iii) Whether the driver of the tractor No. 12191 did not have effective and valid driving licence at the time of accident? OPR-7. (iv) Whether the petition is not maintainable? OPR. (v) Whether the tractor was over-loaded and was being driven in breach of standard insurance policy? OPR-7. (vi) Whether the deceased was the owner of the tractor, if so to what effect? OPR-7. (vii) Relief. 6. OPR-7. (iv) Whether the petition is not maintainable? OPR. (v) Whether the tractor was over-loaded and was being driven in breach of standard insurance policy? OPR-7. (vi) Whether the deceased was the owner of the tractor, if so to what effect? OPR-7. (vii) Relief. 6. The claimants examined six witnesses, namely, Smt. Leela Devi, (PW-1), Krishan Kumar (PW-2), Lachhi Ram (PW-3), Mohan Lal (PW-4), Dr. Niraj Mittal (PW-5) and Tulsi Ram (PW6). 7. Respondent No. 7 examined only one witness, namely, Nokh Ram, as RW-7. 8. The Tribunal, after scanning the evidence, held that the claimants have proved that the driver of the offending tractor has driven the offending vehicle rashly and negligently and returned the findings in favour of the claimants. These findings are not in dispute; accordingly the findings returned are upheld. 9. Before I deal with Issue No.2, I deem it proper to deal with Issues No. 3 to 6. 10. The insurer had to prove issue No. 3, has failed to lead any evidence and even the learned counsel for the appellant has not questioned the findings returned on this issue. However, I have gone through the record. Insurer has failed to prove that the driver of the offending tractor was not having any valid and effective driving license. Thus, the findings returned on this issue are upheld. 11. Issue No. 4. It was for the insurer to prove that the claim petition was not maintainable. However, claimants are victims of a vehicular accident and claim petition, in terms of Section 166 of the Motor Vehicles Act was maintainable. Thus, the findings returned on this issue are accordingly upheld. 12. Issue No.5. Respondent No. 7 has not led any evidence that the tractor was over-loaded. There is not even a whisper to this effect. Accordingly, findings returned by the Tribunal on issue No. 5, merit to be upheld. It is also worthwhile to mention here that the learned counsel for the appellant has not questioned the findings returned on issue No. 5, accordingly, the same are upheld. 13. Issue No. 6. Admittedly, deceased was travelling in the offending tractor. He came down and in the meantime, driver of the offending tractor lost control over the tractor. The tractor rolled down and in the process, deceased was crushed. Respondents have not led any evidence to prove this issue. Accordingly, findings returned on this issue are upheld. 14. 13. Issue No. 6. Admittedly, deceased was travelling in the offending tractor. He came down and in the meantime, driver of the offending tractor lost control over the tractor. The tractor rolled down and in the process, deceased was crushed. Respondents have not led any evidence to prove this issue. Accordingly, findings returned on this issue are upheld. 14. Now adverting to issue No. 2. The adequacy of compensation is not in dispute for the simple reason that neither the claimants nor owner, driver and insurer have questioned the adequacy of compensation. I have gone through the impugned award. It is just and appropriate and cannot be said to be inadequate or meager in any way. The only question is, who is to be saddled with the liability. 15. It was for the insurer to plead and prove that the owner has committed willful breach and driver was not having a valid and effective driving licence. The insurer has not led any evidence and has failed to prove any breach and even has not placed on record the copy of insurance policy though, it is admitted that the vehicle was insured. The deceased was not in the tractor at the relevant point of time. He was on the road side when he became victim of the said accident, thus was a third party. The claimants being the victims of the accident, have lost source of dependency. The Tribunal has discussed the entire evidence and the insurer came to be rightly saddled with the liability. 16. Accordingly, the appeal merits to be dismissed and is accordingly dismissed. Registry is directed to release the amount in favour of the claimants, strictly in terms of the conditions contained in the impugned award, through payee's cheque account, after proper identification. 17. The appeal stands disposed of, as indicated hereinabove, alongwith pending applications. Send down the record, forthwith, after placing a copy of this judgment.