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2014 DIGILAW 1964 (HP)

Oriental Insurance Company v. Anil Kumar

2014-12-19

MANSOOR AHMAD MIR

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JUDGMENT : MANSOOR AHMAD MIR, J. 1. Challenge in this appeal is to the award, dated 24th May, 2006, made by the Motor Accident Claims Tribunal (II), Shimla, H.P. (for short "the Tribunal") in M.A.C. No. 120-R/2 of 2004/01, titled as Anil Kumar & others versus Smt. Sumitra Devi & others, whereby compensation to the tune of Rs. 4,90,000/- with interest @ 7.5% per annum from the date of institution of the claim petition till its realization came to be awarded in favour of the claimants and the appellant-insurer came to be saddled with liability (for short "the impugned award"), on the grounds taken in the memo of appeal. 2. The claimants and the driver-cum-owner/insured have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. Learned counsel for the appellant-insurer contested the impugned award on the ground that the insurance policy was 'Act Policy' and the appellant-insurer was not to be saddled with liability. 4. In order to determine the issue involved, I deem it proper to give a brief resume of the facts of the case: Brief facts: 5. The claimants had claimed compensation to the tune of Rs. 20,00,000/-, as per the break-ups given in the claim petition, on the ground that they became the victims of a motor vehicular accident, which was caused by the driver, namely Shri Jawahar Lal Negi, while driving the Gypsy, bearing registration No. HP-10-0004, rashly and negligently on 31st March, 2001, at Seri-Nalah near Summerkot in Tehsil Rohru. 6. The respondents resisted the claim petition on the grounds taken in the respective memo of objections. 7. Following issues came to be framed by the Tribunal on 15th March, 2002: "1. Whether the driver Jawahar Lal Negi was driving the Gypsy bearing No. HP-10-0004 at Serinalah, near Summerkot in rash and negligent manner, resulting in death of Sh. Yoginder Prasad on 31.3.2001, as alleged? OPP 2. If issue No. 1 is proved, whether the petitioners are entitled for compensation, if so from whom? OPP 3. Whether the vehicle in question was being driven in violation of conditions and provisions of the Insurance policy, as alleged? OPR-7 4. Whether the vehicle in question at the time of accident was carrying unauthorised passengers in violation of law, route permit and insurance policy, as alleged? OPR-7 5. OPP 3. Whether the vehicle in question was being driven in violation of conditions and provisions of the Insurance policy, as alleged? OPR-7 4. Whether the vehicle in question at the time of accident was carrying unauthorised passengers in violation of law, route permit and insurance policy, as alleged? OPR-7 5. Whether the vehicle was being driven by an unauthorized person who did not have valid and effective driving licence, as alleged? OPR-7 6. Relief." 8. The claimants have led evidence in support of their case. The Tribunal, after scanning the evidence, oral as well as documentary, awarded compensation to the tune of Rs. 4,90,000/- with interest @ 7.5% per annum from the date of institution of the claim petition till its realization in favour of the claimants and saddled the appellant-insurer with liability. Issues No. 1 and 5: 9. Learned counsel for the appellant-insurer has not questioned the findings returned by the Tribunal on issues No. 1 and 5. However, I have gone through the evidence and am of the considered view that the claimants have proved that the driver of the offending vehicle had driven the vehicle rashly and negligently and caused the accident. The appellant-insurer has failed to prove that the driver of the offending vehicle was not having valid and effective driving licence. Thus, the findings recorded by the Tribunal on issues No. 1 and 5 are upheld. 10. Issues No. 2 to 4 are inter-dependent. Therefore, I deem it proper to club these issues. Issues No. 2 to 4: 11. It was for the appellant-insurer to plead and prove that the owner has committed any willful breach, has failed to do so. Thus, the findings returned by the Tribunal on issues No. 2 and 3 need no interference and are, accordingly, upheld. 12. Learned counsel for the appellant-insurer argued that the findings returned by the Tribunal on issue No. 4 are not correct. The argument, though attractive, is devoid of any force for the simple reason that the perusal of the insurance policy, Ext. R-1, does disclose that the offending vehicle was insured with the appellant-insurer at the time of accident, in terms of which the 'passengers carrying capacity' of the offending vehicle was 4+1', meaning thereby, risk of four passengers and one driver was covered. Thus, the risk of the deceased was covered in terms of the insurance policy, Ext. R-1. 13. R-1, does disclose that the offending vehicle was insured with the appellant-insurer at the time of accident, in terms of which the 'passengers carrying capacity' of the offending vehicle was 4+1', meaning thereby, risk of four passengers and one driver was covered. Thus, the risk of the deceased was covered in terms of the insurance policy, Ext. R-1. 13. It was for the insurer to prove the terms and conditions contained in the insurance policy, has not led any evidence, thus, cannot be said to be an 'Act Policy'. The Tribunal has rightly returned the findings in para 15 of the impugned award, need no interference. 14. Having said so, I am of the considered view that the Tribunal has not fallen in error in saddling the appellant-insurer with liability. 15. Viewed thus, the appeal deserves to be dismissed. Accordingly, the appeal is dismissed and the impugned award is upheld. 16. 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 after proper identification. 17. Send down the record after placing copy of the judgment on Tribunal's file.