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2014 DIGILAW 25 (HP)

NATIONAL INSURANCE COMPANY LTD. v. SUNITA DEVI

2014-01-03

MANSOOR AHMAD MIR

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JUDGMENT : MANSOOR AHMAD MIR, J 1. This appeal is directed against the award and order, dated 31st March, 2006, made by the Presiding Officer/MACT - II, Fast Track Court, Hamirpur, Himachal Pradesh (hereinafter referred to as "the Tribunal") in MAC Petition No. 45 of 2004/35 of 2005, titled as Sunita Devi & another v. Om Pal & another, whereby compensation to the tune of Rs. 2,13,500/- alongwith interest @ 6% per annum was granted in favour of the claimants-respondents No. 1 and 2 and against the appellant-insurer and owner insured respondent No. 3 herein from the date of the petition till its realisation (hereinafter referred to as "the impugned award"). Brief facts: 2. The claimants-respondents No. 1 and 2 filed the claim petition for grant of compensation to the tune of Rs. 5,00,000/- as per the breakups given in the claim petition on the ground that the deceased Jagat Ram, became the victim of motor vehicular accident, by the driver of the offending vehicle truck bearing registration No. HP19 A 4128, namely Shri Man Singh, while driving the said truck rashly and negligently on 18th July, 2003, near Zing-Zing Bar in District Lahaul and Spiti, sustained injuries and succumbed to the injuries. 3. The owner-insured did not contest the claim petition and was set exparte. The Insurance Company-insurer contested the claim petition on the grounds taken in the objections. After examining the pleadings and the documents, the Tribunal framed the following issues: "1. Whether Jagat Ram as cleaner of truck No. HP - 19 A - 4128 suffered injuries due to falling of the truck on account of rash and negligent driving by the driver Man Singh on 18.7.2003 at Zing Zing Bar? ...OPP 2. If issue No. 1 is proved, whether the petitioners are entitled to compensation, if so, to what amount and from whom? ...OPP 3. Whether the petition is not maintainable? ...OPR 4. Whether the driver of the truck was not holding valid and effective driving licence? ...OPR 5. Whether the petitioners are estopped from filing the present petition? ...OPR 6. Whether the petition is bad for nonjoinder and misjoinder of necessary parties? ...OPR 7. Relief." 4. The claimants-appellants examined witnesses in support of their claim. The Tribunal, after examining the entire record, decided all the issues in favour of the claimants-appellants and against the respondents and awarded Rs. Whether the petitioners are estopped from filing the present petition? ...OPR 6. Whether the petition is bad for nonjoinder and misjoinder of necessary parties? ...OPR 7. Relief." 4. The claimants-appellants examined witnesses in support of their claim. The Tribunal, after examining the entire record, decided all the issues in favour of the claimants-appellants and against the respondents and awarded Rs. 2,13,500/- as compensation with interest @ 6% per annum from the date of filing of the petition till its realisation vide impugned award. The Tribunal has saddled the insurer-appellant with right of recovery. 5. Neither the owner-insured nor the claimants have questioned the impugned award. Thus, it has attained finality so far it relates to them. 6. The only question in this appeal is - whether the Tribunal has rightly saddled the appellant-insurer with the liability with right of recovery? 7. The answer is in affirmative for the simple reason that the deceased was the third party and the third party rights cannot be defeated by the insurer-appellant. The claimants, who have lost their bread earner, cannot be allowed to suffer on the basis of technicalities. 8. The Apex Court in a case titled as Oriental Insurance Company v. Zaharulnisha and others, reported in 2008 AIR SCW 3251 : AIR 2008 SC 2218 , and also in the latest cases held that the third party rights cannot be defeated and the insurer is to be saddled with the liability with the right of recovery. 9. Having said so, learned Tribunal has rightly passed the impugned order and saddled the insurer-appellant with the liability. Accordingly, this appeal merits to be dismissed and is dismissed as such.