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2015 DIGILAW 1057 (HP)

New India Assurance Company v. Vijay Goel

2015-08-07

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, Chief Justice (Oral) Challenge in this appeal is to the judgment and award, dated 22.07.2008, made by the Motor Accident Claims Tribunal, Kullu, H.P. (for short "the Tribunal") in Cl. Pet. No. 81/06, titled as Vijay Goel versus Sh. Rakesh Seth, whereby compensation to the tune of Rs.1,00,000/- with interest @ 9% per annum from the date of the impugned award till its realization was awarded in favour of the claimant-injured and the insurer came to be saddled with liability (for short "the impugned award"). 2. The claimant-injured and the driver-cum-owner/insured of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. The only ground of attack in this appeal is that the Tribunal has fallen in an error in saddling the appellant-insurer with liability for the reasons given in the memo of appeal. 4. Mr. B.M. Chauhan, learned counsel for the appellant-insurer argued that in para 24 (i) of the claim petition, the claimant-injured has specifically averred that he had hired the offending vehicle, Indica Car, bearing registration No. HP-34-2636, on 19.04.2005 from Shimla to Kullu, which factum has not been denied by the driver-cum-owner/insured in his reply. 5. It is apt to reproduce para 24 (i) of the claim petition herein: "On the fateful day of 19.4.2005 the petitioner/injured hired the ill-fated Indica car No. HP-34-2636 from Shimla to Kulu, which was being driven by the respondent No. 1 in a rash and negligent manner that too in an excessive speed and when the said vehicle reached near Teen Piples at Pandoh, it crushed a cow lying on the road in an injured condition and after having crushed the said cow, vehicle of the respondent No. 1 also struck against another vehicle bearing No. DL-8CG-4893, which was coming from Kullu to Mandi side. This accident occurred due to rash or negligent driving of the respondent No. 1. In the accident, the petitioner sustained grievous injuries, fracture on his left side of the skull." 6. This accident occurred due to rash or negligent driving of the respondent No. 1. In the accident, the petitioner sustained grievous injuries, fracture on his left side of the skull." 6. It would also be profitable to reproduce relevant portion of the reply to para 24 (i) of the claim petition herein: "24 (i) That this sub-para of the claim petition is correct only to the extent that on 19-04-2005, the petitioner was travelling in Indica Car No. HP-34-2636 from Shimla to Kullu and near Teen Piple at Pandoh the car met with an accident and petitioner suffered injuries in that accident, rest of the para is absolutely wrong and therefore denied. It is specifically denied that the respondent No. 1 was driving the car in a rash or negligent manner that to in an excessive speed and a cow was lying in injured condition and that the respondent No. 1 crushed the said cow..........." 7. Thus, it is pleaded and admitted that the claimant-injured had hired the offending vehicle at the relevant point of time. 8. The documents on the file in general and in particular, the insurance policy, Ext. RW-2/A, do disclose that the offending vehicle is a private vehicle, thus, cannot be used as a commercial vehicle. 9. Viewed thus, it can be safely said that the owner-insured has committed a willful breach of the terms and conditions of the insurance policy read with the mandate of Sections 147 and 149 of the Motor Vehicles Act, 1988 (for short "MV Act"). 10. Having said so, the Tribunal has fallen in an error in directing the appellant insurer to satisfy the award. 11. Having glance of the above discussions, the appeal merits to be allowed and the impugned award is to be modified by granting right of recovery to the appellant-insurer to recover the same from the driver-cum-owner/insured of the offending vehicle. The appellant-insurer has already deposited the awarded amount before the Registry. The Registry is directed to release the same in favour of the claimant-injured strictly as per the terms and conditions contained in the impugned award after proper identification. 12. The appeal is disposed of and the impugned award is modified, as indicated hereinabove. 13. Send down the record after placing copy of the judgment on Tribunal's file.