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2015 DIGILAW 1312 (HP)

Oriental Insurance Company Ltd. v. Mansha Ram

2015-09-18

MANSOOR AHMAD MIR

body2015
Judgment : Mansoor Ahmad Mir, Chief Justice (oral) This appeal is directed against the award, dated 28th April, 2008, passed by the Motor Accident Claims Tribunal, Solan, H.P., (for short, the Tribunal), in Claim Petition No.19-S/2 of 2007, titled Mansha Ram and others vs. M.K. Sharma and others, whereby compensation to the tune of Rs.5,60,000/-, with interest at the rate of 9% per annum from the date of filing of the Claim Petition till deposit, came to be awarded in favour of the claimants (respondents No.1 to 3 herein) and the insurer/appellant came to be saddled with the liability, (for short the impugned award). 2. The insured/owner, the driver and the claimants have not questioned the impugned award on any count, thus, the same has attained finality so far as it relates to them. 3. Feeling aggrieved, the insurer/appellant has questioned the impugned award on the grounds taken in the memo of appeal. 4. Before issue-wise findings are returned, I deem it proper to give a flash back of the facts of the case, the womb of which gave birth to this appeal. 5. Claimants, being the victim of a vehicular accident, had invoked the jurisdiction of the Tribunal claiming compensation to the tune of Rs.6.00 lacs, as per the breakups given in the claim petition, on the ground that the driver of the offending vehicle i.e. Mahindra Pick Up, bearing No.HP- 11-7100, had driven the offending vehicle rashly and negligently on 11th March, 2007, hit the deceased Shakuntla at about 12.30 p.m. at a place known as Sarli, Tehsil Arki, District Solan, H.P., as a result of which the said Shakuntla sustained injuries and succumbed to the same later on. 6. The owner, the driver and the insurer resisted the Claim Petition on various grounds. 7. The Tribunal after examining the pleadings of the parties, settled the following issues: “1.Whether the death of deceased Shakuntala Devi has been caused due to rash/negligent driving of Mahindra Pick Up by the respondent No.2? OPA 2. If issue No.1 is proved in affirmative to what amount of compensation the petitioners are entitled to and from whom? OPA 3. Whether respondent No.2 did not possess a valid and effective driving licence? OPR3 4. Whether the vehicle was being driven in contravention of the provisions of Motor Vehicles Rules and the Standard terms of the Insurance Policy? OPR3 5. Relief.” 8. OPA 3. Whether respondent No.2 did not possess a valid and effective driving licence? OPR3 4. Whether the vehicle was being driven in contravention of the provisions of Motor Vehicles Rules and the Standard terms of the Insurance Policy? OPR3 5. Relief.” 8. Claimants, in order to prove their claim, have examined as many as three witnesses, including the claimant Mansa Ram, who stepped into the witness box as PW-1. The driver and the owner of the offending vehicle have not led any evidence. However, the insurer has examined three witnesses, namely, Narender Kumar, P.S. Chandel and Pawan Kumar, as RW-1 to RW-3. 9. The Tribunal after examining the pleadings of the parties and the evidence, held that the claimants have proved that the driver of the offending vehicle had driven the vehicle rashly and negligently and had caused the accident. There is no dispute about the findings recorded by the Tribunal on issue No.1. However, I have gone through the pleadings of the parties and the evidence on record and am of the view that the Tribunal has rightly recorded findings on issue No.1. Accordingly, the same are upheld. 10. Before issue No.2 is taken up, I deem it proper to deal with issues No.3 and 4. 11. The learned counsel for the appellant-insurer argued that the driver of the offending vehicle was having a learner's licence and was not competent to drive the same. 12. Section 2 (19) of the Act defines learner’s licence. It provides that a person who is holding a learner’s licence is authorized to drive a light motor vehicle or a motor vehicle of any specified class or description. It is apt to reproduce Section 2 (19) of the Motor Vehicles Act, 1988, (for short, the Act), herein: “2 ................ (19) "learner's licence" means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive as a learner, a motor vehicle or a motor vehicle of any specified class or description;” 13. While going through the said definition, one comes to an inescapable conclusion that a person who is having a learner’s licence is competent to drive the motor vehicle or a motor vehicle of any specified class or description, for which he has been given the licence. 14. While going through the said definition, one comes to an inescapable conclusion that a person who is having a learner’s licence is competent to drive the motor vehicle or a motor vehicle of any specified class or description, for which he has been given the licence. 14. In the instant case, a copy of the licence has been proved on record as Ext.RW-3/A, a perusal of which does disclose that the driver of the offending vehicle was having a learner’s licence to drive a light motor vehicle. Since the offending vehicle is Mohindra Pick Up, which, as per Section 2(21) of the Act, falls within the definition of Light Motor Vehicles, and the driver of the offending vehicle was having a licence, though learner’s, to drive a light motor vehicle, therefore, I am of the considered view that the Tribunal has rightly held that the driver of the offending vehicle was having a valid and effective driving licence at the relevant point of time. 15. This Court has dealt with the issue in the cases titled as Anuj Sirkek versus Neelma Devi and Ors., being FAO No. 57 of 2014, decided on 19.12.2014, Oriental Insurance Company Ltd. versus Sh. Krishan Dev and others, being FAO No. 476 of 2007, decided on 22.05.2015, and New India Assurance Co. Ltd. vs. Kamla Devi and others, being FAO No.243 of 2008, decided on 29.05.2015, and taken the similar view. 16. Having said so, the Tribunal has rightly decided issue No.3 against the insurer/appellant. 17. Coming to issue No.4, it was for the insurer to plead and prove, by leading cogent evidence, that the owner had committed willful breach in terms of Sections 147 to 149 of the Act, and in terms of the conditions contained in the insurance policy, as has been held by the Apex Court in National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 Supreme Court 1531 and Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217. The insurer, in the instant case, has not been able to prove that the insured was in breach of the terms and conditions contained in the insurance policy. 18. Having said so, the findings recorded by the Tribunal on issue No.4 are also liable to be upheld. 19. Coming to issue No.2, the adequacy of compensation is not in dispute. The insurer, in the instant case, has not been able to prove that the insured was in breach of the terms and conditions contained in the insurance policy. 18. Having said so, the findings recorded by the Tribunal on issue No.4 are also liable to be upheld. 19. Coming to issue No.2, the adequacy of compensation is not in dispute. Accordingly, the findings of the Tribunal recorded on this issue are also upheld. 20. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the insurer/appellant and the same is dismissed. 21. The Registry is directed to release the entire amount in favour of the claimants strictly in terms of the impugned award.