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2015 DIGILAW 1045 (HP)

Jogindra Transport Co. v. Deepak Kumar

2015-08-07

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. The appellantownerinsured has questioned the judgment and award, dated 25.10.2008, made by the Motor Accident Claims Tribunal, Bilaspur, District Bilaspur, H.P. (for short "the Tribunal") in M.A.C. No. 31 of 2006, titled as Deepak Kumar versus M/s Jogindera Transport Co., whereby compensation to the tune of Rs.78,727/with interest @ 9% per annum from the date of filing of the claim petition till its realization was awarded in favour of the claimant and the insurer was directed to satisfy the award at the first instance with right of recovery (for short "the impugned award"). 2. The insurer, the driver and the claimant have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. The ownerinsured has questioned the impugned award only on the ground that the Tribunal has fallen in an error in exonerating the insurer and saddling it with liability. 4. Thus, the only question to be determined in this appeal is whether the insurer came to be rightly exonerated or otherwise? 5. It is apt to record herein that the driver, namely Shri Sushil Kumar, was having fake licence and the ownerinsured has not pleaded in its reply that it has exercised due care and caution while employing the driver or has perused the driving licence. Thus, the ownerinsured has failed to discharge his duty and has committed willful breach. 6. In the given circumstances, the Tribunal has rightly granted the right of recovery to the insurer. 7. In terms of Section 140 of the Motor Vehicles Act, 1988 (for short "MV Act"), on the principle of 'No Fault Liability', Rs. 25,000/was to be paid by the insurer because the injured, who was minor at that point of time, has suffered permanent disability, which is evident from the photograph and the documents/medical certificate on the file. 8. Accordingly, I deem it proper to modify the impugned award by providing that Rs. 25,000/is to be paid by the insurer under the head "No Fault Liability" in terms of Section 140 of the MV Act and rest of the amount is to be paid by the ownerinsured. The impugned award is modified accordingly. 9. At this stage, Ms. Shilpa Sood, learned counsel for the insurer, stated at the Bar that they have filed suit for recovery before the Civil Court. The impugned award is modified accordingly. 9. At this stage, Ms. Shilpa Sood, learned counsel for the insurer, stated at the Bar that they have filed suit for recovery before the Civil Court. The insurer is at liberty to withdraw the suit and file application before the Tribunal. The Tribunal is directed to get the amount recovered within four weeks thereafter and report compliance. 10. The appeal is disposed of accordingly. 11. Send down the record after placing copy of the judgment on Tribunal's file.