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Himachal Pradesh High Court · body

2014 DIGILAW 978 (HP)

Oriental Insurance Company Ltd. v. Kamlo

2014-07-25

MANSOOR AHMAD MIR

body2014
JUDGMENT Mansoor Ahmad Mir, Chief Justice (Oral) Challenge in this appeal is to the award, dated 14th September, 2009, made by the Motor Accident Claims Tribunal, Chamba Division, Chamba, H.P. (hereinafter referred to as “the Tribunal”) in MAC Petition No. 48 of 2008, titled as Smt. Kamlo & others versus The Oriental Insurance Company Ltd. & another, whereby compensation to the tune of Rs. 4,53,300/- with interest @ 7.5% per annum from the date of filing of the claim petition till deposition of the amount before the Tribunal came to be awarded in favour of the claimants-respondents No. 1 to 3 herein and the appellant-insurer came to be saddled with liability to satisfy the award (hereinafter referred to as “the impugned award) on the grounds taken in the memo of appeal. Brief facts : 2. The claimants-respondents No. 1 to 3 became the victim of a motor vehicular accident, which took place on 9th September, 2008, at Galoond Morh, near Village Pukhri, Tehsil and District Chamba, which was outcome of use of motor vehicle-Tata Sumo, bearing registration No. HP-01C-0786, being owned by respondent No. 4 herein and insured with the appellant-insured. 3. The claimants-respondents No. 1 to 3 filed claim petition seeking compensation to the tune of Rs. 8,00,000/- as per the break-ups given in the claim petition. The appellant-insurer and the owner-insured resisted the claim petition on the grounds taken in the memo of objections. 4. The Tribunal, after scanning the pleadings and the documents on record, framed the following issues on 4th March, 2009 : “1. Whether deceased Hans Raj died on 8.9.2008 in the accident of vehicle No. HP-01C-0786, as alleged? OPP 2. If issue No. 1 is proved, whether the petitioners are entitled for compensation, if so, to what amount and from whom? OPP 3. Whether the petition is not maintainable in the present form? OPR-1 4. Whether the driver of the vehicle in question was not holding a valid and effective driving licence at the time of accident as alleged? OPR-1 5. Whether the vehicle in question was being plied in contravention of the terms and conditions of the Insurance Policy? OPR-1 6. Whether the deceased was a gratuitous passenger in the vehicle as alleged? OPR-1 7. Relief.” 5. The claimants have examined two witnesses, Dr. OPR-1 5. Whether the vehicle in question was being plied in contravention of the terms and conditions of the Insurance Policy? OPR-1 6. Whether the deceased was a gratuitous passenger in the vehicle as alleged? OPR-1 7. Relief.” 5. The claimants have examined two witnesses, Dr. Ram Kamal as PW-2 and MHC Om Parkash as PW-3, in support of their claim petition and one of the claimants, Smt. Kamlo, also appeared in the witness box as PW-1 and has tendered in evidence affidavit, Ext. PW-1/A, copy of Parivar Registrar as Ext. PW-1/B, copy of post mortem report as Ext. PW-2/A & copy of FIR as Ext. PW-3/A. The owner-insured has not led any evidence in support of his case. The appellant-insurer has examined two witnesses, i.e. Shri Shamsher Singh as RW-1 and Shri Kavinder Kumar as RW-2. 6. The Tribunal, after scanning the evidence, oral as well as documentary, held the claimants entitled to compensation to the tune of Rs. 4,53,300/- with interest @ 7.5% per annum from the date of filing of petition till deposition of the amount and saddled the appellant-insurer with liability to satisfy the award. 7. Neither the owner-insured nor the claimants have questioned the impugned award on any count, thus, has attained finality so far it relate to them. 8. The appellant-insurer has questioned the impugned award on the following three counts : (i) that the accident was outcome of mechanical defect; that has a relation with fitness certificate of the vehicle, which was not valid at the relevant point of time; (ii) that the driving licence of the driver was fake; and (iii) that the claim petition is not maintainable. 9. All the three grounds have not been proved by the appellant – insurer by leading evidence before the Tribunal. However, I have gone through the record. 10. The first ground raised by the appellant-insurer is that the accident has occurred due to mechanical defect, has nexus with the fitness certificate of the offending vehicle, which was not valid at the time of accident. I have gone through the claim petition. In para 24 of the claim petition, it has specifically been averred by the claimants that the driver could not negotiate the curve properly due to some latent mechanical defect in the vehicle, as a result of which the vehicle went off the road. I have gone through the claim petition. In para 24 of the claim petition, it has specifically been averred by the claimants that the driver could not negotiate the curve properly due to some latent mechanical defect in the vehicle, as a result of which the vehicle went off the road. The appellant-insurer has specifically denied the same while replying para 24, but the owner-insured has admitted the averments contained in para 24 of the claim petition. 11. It was for the appellant-insurer to plead and prove that the accident was outcome of that mechanical defect, though in terms of Section 149 of the MV Act, this ground is not available to the appellant-insurer, but if at all it was available, it was for the insurer-appellant to plead and prove that accident occurred because of the fact that the fitness certificate has lost its life, the vehicle was not roadworthy and the accident was outcome of the same, which it has failed to do so. 12. The appellant-insurer has placed on record the insurance cover as Ext. R-1, which do disclose that the offending vehicle was insured with the appellant-insurer. But it cannot be inferred from the said insurance cover that plying of the vehicle after expiry of the fitness certificate amounts to breach of terms and conditions of the insurance policy. 13. It was also for the appellant-insurer to plead and prove that the accident was outcome of rash and negligent driving of the driver. No evidence has been led by the appellant-insurer to that effect. However, it has examined two witnesses only in respect of the validity of the driving licence and the fitness certificate of the offending vehicle. Thus, it can be safely said and held that the accident was outcome of use of motor vehicle in which the deceased driver sustained injuries, succumbed to the injuries and the claimants have lost their bread earner. 14. Now coming to the second ground that the driver was having the fake licence. It was for the appellant-insurer to plead and prove that the driver of the offending vehicle was having a fake licence and the owner-insured has committed willful breach in terms of Sections 147 to 149 of the MV Act. There is not even a single iota of evidence on the file to this effect. 15. It was for the appellant-insurer to plead and prove that the driver of the offending vehicle was having a fake licence and the owner-insured has committed willful breach in terms of Sections 147 to 149 of the MV Act. There is not even a single iota of evidence on the file to this effect. 15. RW-1, namely Shri Shamsher Singh, Licence Assistant in the office of RLA Shimla (Urban), has not deposed that the driving licence, which was taken on record, without any objection raised by the appellant-insurer, as Ext. R-3, is a fake licence. Rather, it has come in the cross-examination of the said witness that the said licence has been issued from Chopal. It was for the appellant- insurer to summon the witness from the said office in order to prove that the driving licence of the driver was a fake licence, which has not been done. 16. Thus, the appellant-insurer has failed to prove that the driving licence was fake or the owner-insured has committed any willful breach, which would have been grounds for seeking exoneration. 17. The third ground raised by the appellant-insurer is that the claim petition is not maintainable. The argument of the learned counsel for the appellant-insurer is devoid of any force for the reason that the claimants are the victim of a motor vehicular accident, have a right to seek compensation in terms of mandate of the Motor Vehicles Act, 1988 (hereinafter referred to as “the MV Act”) or in terms of mandate of Workmen's Compensation Act, 1923 (hereinafter referred to as “the WC Act”). 18. The deceased was the budding son of his mother, one of the claimants, and the brother of other two claimants, who were minor at the relevant point of time, who have been deprived of their source of income, hope and help, making their lives miserable. 19. The claimants were having two remedies available with them in terms of Section 167 of the MV Act. They could have filed claim petition before the Commissioner under the WC Act or claim petition before the Claims Tribunal under the Motor Vehicles Act, 1988. It is apt to reproduce Section 167 of the MV Act herein : “167. Option regarding claims for compensation in certain cases. They could have filed claim petition before the Commissioner under the WC Act or claim petition before the Claims Tribunal under the Motor Vehicles Act, 1988. It is apt to reproduce Section 167 of the MV Act herein : “167. Option regarding claims for compensation in certain cases. - Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.” 20. The claimants have exercised their option in order to get compensation more than what could have been granted to them by the Authority under the WC Act. Thus, it cannot be said that the claim petition is not maintainable. 21. Though the compensation awarded by the Tribunal is meager, the claimants have not questioned the adequacy of the compensation, is reluctantly upheld. 22. Having glance of the above discussions, the appeal merits to be dismissed and the impugned award is to be upheld. Accordingly, the appeal is dismissed and the impugned award is upheld. 23. The Registry to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee's account cheque. 24. Send down the records after placing copy of the judgment on record.