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Himachal Pradesh High Court · body

2014 DIGILAW 560 (HP)

KARAM CHAND v. UNITED INDIA INSURANCE COMPANY

2014-05-09

MANSOOR AHMAD MIR

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JUDGMENT : MANSOOR AHMAD MIR, J. 1. All these four appeals are outcome of a motor-vehicular accident, which occurred on 16th March, 2004, at about 4.30 p.m., at Barai, District Kangra, Himachal Pradesh, as a result of the contributory rashness and negligence of the drivers of offending vehicles, i.e. bus bearing registration No. HP-68-0421 and scooter bearing registration No. HP-37-3870, hence taken up together for disposal. 2. In FAOs No. 318/2006 and 347/2006, the National Insurance Company-insurer of the scooter and Karam Chand, the owner/driver of the offending bus, respectively, have questioned the award, dated 21st July 2006, made by the Motor Accident Claims Tribunal (I), Kangra at Dharamshala, in Claim Petition No. 27-K/II/2004, titled Sumna Devi versus Karam Chand & others, whereby a compensation to the tune of Rs. 3,26,000/- with costs and interest @ 71/2% per annum from the date of filing of the claim petition till its realization, came to be awarded in favour of claimant, Sumna Devi, widow of Subhash Chand, deceased; the National Insurance Company, being the insurer of the scooter, was saddled with 50% liability and owner of the bus, namely, Karam Chand, was also held liable to pay 50% of the compensation amount, for short the "impugned award", on the grounds taken in the memos of appeals, filed by the insurer-National Insurance Company Ltd. and owner-driver Karam Chand. 3. In FAOs No. 152/2007 and 178/2007, the National Insurance Company and aforesaid Karam Chand, respectively have also questioned the award, dated 27th February, 2007, made by the Motor Accident Claims Tribunal (I), Kangra at Dharamshala in Claim Petition No. 71-K/II/2004, titled Sumna Devi versus Karam Chand & others, whereby a compensation to the tune of Rs. 52,700/- with interest @ 9% per annum from the date of filing of the claim petition till its realization, was awarded in favour of the claimant; Karam Chand, owner of the bus, was held liable to pay 50% of the awarded amount and the National Insurance Company-insurer of the scooter, was saddled with 50% liability, for short the "impugned award", on the grounds taken in the memos of aforesaid appeals. Brief Facts: 4. Claimant-Sumna Devi had filed two claim petitions, i.e. 27-K/II/2004 and 71-K/II/2004 before the Tribunal, which are outcome of the vehicular accident, occurred on 16th March, 2004 at the aforesaid time and place. Brief Facts: 4. Claimant-Sumna Devi had filed two claim petitions, i.e. 27-K/II/2004 and 71-K/II/2004 before the Tribunal, which are outcome of the vehicular accident, occurred on 16th March, 2004 at the aforesaid time and place. Claim Petition No. 27-K/II/2004 was filed by the claimant on the ground that she had lost her husband in the said accident and claimed compensation to the tune of Rs. 7,00,000/-, as per the break-ups given in the said claim petition. In Claim Petition No. 71-K/II/2004, the claimant had claimed compensation to the tune of Rs. 7,00,000/- on account of the injuries sustained by her in the said accident, as per the break-ups given in the aforesaid claim petition. 5. The owners-drivers-insurers of the offending vehicles, i.e. bus and scooter, the National Insurance Company-the insurer of the offending scooter and the United India Insurance Company-the insurer of the offending bus, resisted the claim petitions by filing separate objections, on the grounds taken in the memos of objections. 6. Following issues were framed in Claim Petition No. 27-K/II/2004, i.e. the death case:- 1. Whether deceased Subhash Chand died in Motor Vehicle accident on 16.3.2004 due to rash and negligent driving of respondents No. 1 and 3 who were driving vehicle Nos. HP-37-3870 and HP-68-0421, as alleged? - OPP 2. If issue No. 1 is proved, whether the petitioners are entitled for compensation, if so, how much and from whom? - OPP 3. Whether respondents No. 1 and 3 were not holding valid and effective DL at the time of alleged accident? - OPR 4. Whether the petition is bad for non-joinder of necessary and mis-joinder of parties, as alleged? - OPR 5. Whether the accident took place due to rash and negligent driving of deceased himself, as alleged? - OPR 6. Whether the petition is not maintainable in the present form, as alleged? - OPR 7. Whether the petitioners have no cause of action and locus standi to file the present petition? - OPR 8. Relief 7. Following issues came to be framed in Claim Petition No. 71-K/II/2004, i.e. the injury case:- 1. Whether the petitioner on 16.03.2004 sustained injuries due to rash and negligent driving of respondent Nos. 1 and 3, who were driving vehicle Nos. HP-37-3870 and HP-68-0421, as alleged? - OPP 2. If issue No. 1 is proved, whether the petitioner is entitled for compensation, if so, how much and from whom? Whether the petitioner on 16.03.2004 sustained injuries due to rash and negligent driving of respondent Nos. 1 and 3, who were driving vehicle Nos. HP-37-3870 and HP-68-0421, as alleged? - OPP 2. If issue No. 1 is proved, whether the petitioner is entitled for compensation, if so, how much and from whom? - OPP 3. Whether respondents Nos. 1 and 3 were not holding valid and effective driving licence at the time of alleged accident? - OPR 4. Whether the petition is bad for non-joinder of necessary and mis-joinder of parties, as alleged? - OPR 5. Whether the accident took place due to rash and negligent driving of husband of the petitioner? - OPR 6. Whether the petition is not maintainable in the present form, as alleged? - OPR 7. Whether the petitioner has got no cause of action and locus standi to file the present petition? - OPR 8. Relief 8. The claimant and the respondents in the claim petitions led evidence in support of their respective case. 9. In Claim Petition No. 27-K/II/2004, after scanning the evidence, the Tribunal made the impugned award and awarded compensation to the tune of Rs. 3,26,000/- with costs and interest @ 71/2% per annum to the claimant from the date of the filing of the claim petition till its realization. Karam Chand, owner-cum-driver of the offending bus and Ajay Kumar, owner-cum-driver of the offending scooter, were saddled with the liability to the extent of 50% each. However, the amount of compensation payable by Karam Chand was ordered to be first paid by the United India Insurance Company in the Tribunal and then it was to be recovered from Karam Chand by the Insurer of the offending bus-United India Insurance Company. The amount of compensation payable by Ajay Kumar was ordered to be paid by the National Insurance Company-insurer of the offending scooter. 10. In Claim Petition No. 71-K/II/2004, the Tribunal, after examining the pleadings and the evidence on record, made the impugned award and compensation to the tune of Rs. 52,700/- with interest 9% per annum came to be awarded in favour of the claimant from the date of the filing of the claim petition till its realization and the liability to pay the compensation was fastened upon the respondents in the aforesaid claim petition, as was fastened in Claim Petition No. 27-K/II/2004. 11. 52,700/- with interest 9% per annum came to be awarded in favour of the claimant from the date of the filing of the claim petition till its realization and the liability to pay the compensation was fastened upon the respondents in the aforesaid claim petition, as was fastened in Claim Petition No. 27-K/II/2004. 11. Issues No. 2 to 8 are similar in both the claim petitions, whereas issue(s) No. 1 framed in both the petitions is different, only to the extent that in the death case, the claimant has claimed compensation in lieu of death of her husband and in the injury case, she has claimed compensation in lieu of injuries sustained by her. 12. None of the parties have questioned the factum of the accident and the factum of adequacy of compensation. Thus, the findings returned by the Tribunal on these issues are not in dispute and are accordingly upheld. 13. Mr. Ashwani Sharma, learned Counsel for the National Insurance Company has questioned the impugned award on the ground that the accident was not outcome of the contributory negligence of the drivers of the scooter and the bus, but it has been caused exclusively by the driver of the offending bus, as he had the last opportunity to avoid the accident, which he had not availed due to rashness and negligence and has failed to apply his mind and expertise, at the relevant time. Thus, the accident is exclusive outcome of his negligence and not as a result of the contributory negligence. 14. Ms. Archana Dutt, learned Counsel for the owner-insured for the bus has also questioned impugned award on the ground that the Tribunal has fallen in error in saddling the owner-cum-driver-insured of the offending bus with the liability by holding that he was not having a valid driving licence at the time of accident, thus, the findings returned on Issue No. 3 in both the petitions are bad. 15. I have heard learned Counsel for the parties and gone through the record of the case meticulously. 16. There is evidence on the file that the scooter struck against the motor-cycle, as a result of which, claimant-Sumna Devi, deceased Subhash Chand and one Madhu Bala sustained injuries. The driver of the offending bus, hit and crushed all of them, Sumna Devi sustained injuries and Subhash Chand succumbed to the injuries. 16. There is evidence on the file that the scooter struck against the motor-cycle, as a result of which, claimant-Sumna Devi, deceased Subhash Chand and one Madhu Bala sustained injuries. The driver of the offending bus, hit and crushed all of them, Sumna Devi sustained injuries and Subhash Chand succumbed to the injuries. The National Insurance Company has not led any evidence to prove that the driver of the offending bus has failed to exercise his expertise and techniques to avoid the accident, thus, failed to take advantage of the "Rule of Last Opportunity" and Law of Torts. It appears that this ground was not taken before the Motor Accident Claims Tribunal by the National Insurance Company. Neither there was any pleading before the Tribunal nor any evidence was led to this effect. 17. There is no evidence on record whereby it can be held that the accident was only the outcome of negligence of the driver/owner of the bus because he had lost control over it. There is ample evidence on the file discussed by the Tribunal in the impugned awards that both the drivers were negligent and the accident was outcome of their contributory negligence. Thus, the appeals filed by the National Insurance Company, i.e. FAOs No. 318/2006 and 152/2007, are dismissed. 18. The learned Counsel for the owner-cum-driver of the offending bus, namely, Karam Chand argued that the United India Insurance Company has failed to prove that driver Karam Chand was not having a valid driving licence at the time of accident and the findings returned on Issue No. 3 by the Tribunal, so far as it relate to Karam Chand, driver/owner of the offending bus, are not based on the evidence and came to be recorded without application of mind. 19. After going through the record, I find that there is no evidence led by the insurer of the bus or any other respondent to prove the fact that the licence of the driver of the offending bus was ineffective and not valid. 20. I wonder, how the Presiding Officers of the Tribunal have recorded the findings that the driver/owner of the offending bus was not having a valid licence to drive the "transport vehicle". It is an eye opener to the said Officers and all the Presiding Officers who deal with claim petitions in the State of Himachal Pradesh. 21. 20. I wonder, how the Presiding Officers of the Tribunal have recorded the findings that the driver/owner of the offending bus was not having a valid licence to drive the "transport vehicle". It is an eye opener to the said Officers and all the Presiding Officers who deal with claim petitions in the State of Himachal Pradesh. 21. From the perusal of driving licence of Karam Chand, Ext. RW-5/C, it transpires that it contains 13 clauses, whereby the driver was licensed to drive throughout India, vehicles of different descriptions i.e. "motor cycle", "light transport vehicle" and "heavy transport vehicle". The licence also stands renewed on 24.04.2004, whereas the accident occurred on 16th March, 2004, meaning thereby, the licence was valid at the time of accident. None of the parties have raised objections to this effect, meaning thereby, it is admitted to be correct and stands proved to be correct. 22. While going through the said licence, one comes to an inescapable conclusion that the driver was competent to drive "motor cycle", "light transport vehicle" and "heavy transport vehicle". The bus falls within the definition of "heavy transport vehicle", as per the definition given in Motor Vehicles Act, 1988, contained in Section 2(17). Thus, the argument advanced by the learned Counsel for the United India Insurance Company is of no use. 23. It was not also the case of the Insurer of the offending bus-United India Insurance Company before the Tribunal that the accident was outcome of use of different kind of a vehicle by the driver because he was not competent to drive the said vehicle. This fact has not been pleaded and proved. Even otherwise, it was for the insurer to plead and prove that the insured-owner has committed willful breach in terms of the policy which would have been the ground for discharging the insurer from the liability. • 24. My this view is fortified by the Apex Court judgment in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, AIR 2004 SC 1531 has laid down some guidelines. It is apt to reproduce relevant para 105 of the judgment herein: : 105..................... (i)......................... (ii)........................ (iii) ................... • 24. My this view is fortified by the Apex Court judgment in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, AIR 2004 SC 1531 has laid down some guidelines. It is apt to reproduce relevant para 105 of the judgment herein: : 105..................... (i)......................... (ii)........................ (iii) ................... (iv) The insurance companies 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. (v)......................... (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured u/s 149(2) of the Act." (vii) .............................. (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree. 25. Having said so, the Tribunal below has fallen in error in returning the finding that Karam Chand, owner/driver of the offending bus, was not having a valid and effective driving licence to drive the offending vehicle-bus at the time of accident. The United India Insurance Company-insurer of the bus, was to be saddled with 50% liability without any right of recovery. 26. Keeping in view the aforesaid discussion, the appeals filed by the owner/driver/insured of the bus, merit to be granted and the United India Insurance Company is liable to be saddled with 50% liability. Both, the National Insurance Company and the United India Insurance Company are saddled with 50% liability, each. Accordingly, the impugned awards are modified to the above extent. 27. The Registry is directed to release the awarded amount in favour of the claimant, if deposited, strictly in terms of the conditions contained in the impugned awards. Both, the National Insurance Company and the United India Insurance Company are saddled with 50% liability, each. Accordingly, the impugned awards are modified to the above extent. 27. The Registry is directed to release the awarded amount in favour of the claimant, if deposited, strictly in terms of the conditions contained in the impugned awards. If the awarded amount is not deposited, it be deposited in the Registry of this Court, within six weeks from today. 28. The Presiding Officer of the Tribunal to release the awarded amount in favour of the claimant, strictly in terms of the conditions contained in the impugned awards, if already deposited. 29. The compensation amount, if deposited before the Registry or the Tribunal by Karam Chand, appellant/owner/driver of the bus, be released in his favour through payees account cheque. 30. Viewed thus, appeals filed by the National Insurance Company, i.e. FAOs No. 318/2006 and 152 of 2007 are dismissed and the appeals filed by Karam Chand-owner/driver/insured of the bus, i.e. FAOs No. 347/2006 and 178/2007 are allowed, as indicated above. Copy of the order be placed in each of the files. 31. Send down the records.