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2014 DIGILAW 986 (HP)

Oriental Insurance Co. Ltd. v. Kusmo

2014-07-25

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award dated 27th June, 2009, made by the Motor Accident Claims Tribunal, Fast Track Court, Chamba, H.P., (hereinafter referred to as "the Tribunal") in M.A.C. Petition No. 1 of 2009, titled as Smt. Kusmo & others v. the Oriental Insurance Company Ltd. & another, whereby and whereunder claim petition filed by the claimants was granted and compensation to the tune of Rs. 3,77,000/- with interest @ 9% per annum from the date of filing of the claim petition till its realisation, came to be awarded in favour of the claimants-respondents No. 1 to 3 herein, and against the insurer-the Oriental Insurance Company Limited, appellant herein, (for short, "the impugned award"), on the grounds taken in the memo of appeal. 2. I deem it proper to record herein that the claimants and the insured-owner have not questioned the impugned award on any count, thus it has attained finality so far as it relates to them. 3. The insurer-insurance Company has questioned the impugned award only on the ground of saddling it with liability. Brief Facts: 4. Though, the facts of the case are not in dispute, however, I deem it proper to give a brief summary of the case, the womb of which has given birth to the present appeal. 5. The claimants, being victims of the vehicular accident, which was caused on 11.08.2008, at about 5.30 a.m., at Nehar Nala near Kut, by driver Karam Singh, while driving vehicle-maruti car bearing registration No. PB-02K-0078 in a rash or negligent manner; the offending vehicle rolled down the road, deceased Teko sustained injuries and succumbed to the injuries, filed claim petition for grant of compensation to the tune of Rs. 15,00,000/-, as per the breaks-up given in the claim petition. 6. The owner-insured-widow of driver Karam Singh and the insurer-insurance company have resisted the claim petition on the grounds taken in the memo of objections. 7. Following issues were framed by the Tribunal on 17.4.2009:- "1. Whether Shri Teko died in a motor vehicle accident which took place on 11.8.2008 at about 5.30 AM at Nehar Nullah near Kut within the jurisdiction of P.S Chowari due to rash and negligent driving of driver of Maruti car bearing No. PB02K- 0078? .OPP 2. 7. Following issues were framed by the Tribunal on 17.4.2009:- "1. Whether Shri Teko died in a motor vehicle accident which took place on 11.8.2008 at about 5.30 AM at Nehar Nullah near Kut within the jurisdiction of P.S Chowari due to rash and negligent driving of driver of Maruti car bearing No. PB02K- 0078? .OPP 2. If issue No. 1 is proved in affirmative whether petitioner being legal heir of deceased are entitled for the grant of compensation, if so, to what amount and from which of the respondents? ..OP-parties 3. Whether the driver of the vehicle involved in the accident was not holding a valid Driving Licence as alleged? .OPR-1 4. Whether the driver of the offending vehicle was driving the vehicle in contravention of Policy norms as there were unauthorised occupants in the vehicle as alleged, If so, its effect? OPR 5. Whether the petition has been filed in collusion with respondent No. 2 as alleged? OPR. 6. Relief." 8. The claimants have led evidence. Owner-insured has not led any evidence, however, has placed on record Insurance Policy Ext. R.I. and driving licence of driver Karam Singh Ext. R.2/1. Thus, the evidence led by the claimants has remained un-rebutted. 9. The Tribunal, after examining the pleadings and scanning the evidence on record, held that deceased sustained injuries; succumbed to the injuries in a vehicular accident which was caused by driver Karam Singh while driving the offending vehicle, rashly and negligently; it also made assessment and held that the claimants are entitled to compensation to the tune of Rs. 3,77,000/- with interest at the rate of 9% per annum from the date of filing of the claim petition till its realisation and saddled the insurer with liability. Issue No. 1 10. I have gone through the impugned award. I am of the considered view that on 11.08.2008, at about 5.30 a.m., at Nehar Nala near Kut, driver Karam Singh has driven the offending vehicle rashly and negligently, caused the accident in which deceased sustained injuries and succumbed to the injuries. Thus, the findings returned by the Tribunal on this issue are upheld. Issue No. 3 to 5. 11. Before dealing with Issue No. 2, I deem it proper to deal with Issues No. 3 to 5. 12. Thus, the findings returned by the Tribunal on this issue are upheld. Issue No. 3 to 5. 11. Before dealing with Issue No. 2, I deem it proper to deal with Issues No. 3 to 5. 12. It was for the appellant-insurer to prove these issues, but it has not led any evidence and there is not even an iota of evidence to prove these issues. Thus, the findings returned by the Tribunal on these issues, are upheld. Issue No. 2. 13. The adequacy of the compensation is not in dispute. However, I have gone through the evidence. The Tribunal has rightly assessed the compensation by applying the multiplier method. Even otherwise, since there is no dispute qua this issue, accordingly, it is held that the compensation is just and cannot be said to be inadequate in any way. Thus, the findings returned by the Tribunal on this issue are upheld. 14. I have gone through the Insurance Policy Ext. R-1. The sitting capacity of the offending vehicle was four (three passengers + one driver). Thus, deceased was an occupant in the vehicle. 15. The insurer-appellant has failed to prove that the deceased was a gratuitous passenger. 16. The Tribunal has rightly saddled the appellant-insurer- insurance company with liability as it has not proved that the offending vehicle was being driven in contravention of the terms and conditions of the Insurance Policy. 17. Having said so, the appeal merits dismissal. The same is accordingly dismissed and the impugned award is upheld. 18. The Registry is directed to release the awarded amount in favour of the claimants, strictly in terms of the conditions contained in the impugned award, through payees account cheque. 19. Send down the records after placing copy of the judgment on record.