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2015 DIGILAW 1460 (HP)

Oriental Insurance Company v. Rajender Kumar

2015-10-09

MANSOOR AHMAD MIR

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Judgment : Mansoor Ahmad Mir, Chief Justice (Oral) By the medium of this appeal, the appellant-insurer has called in question the judgment and award, dated 13.01.2009, made by the Motor Accident Claims Tribunal, Mandi, H.P. (for short “the Tribunal”) in Claim Petition No.96 of 2005, titled as Sh. Rajender Kumar versus Bhopal Singh and another, hereby compensation to the tune of Rs. 1,31,223/ with interest @ 9% per annum from the date of filing of the claim petition till its realization came to be awarded in favour of the claimant-injured and the insurer was saddled with liability (for short “the impugned award”). 2. The claimant-injured and the owner/insured-cum-driver 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 appellant-insurer has questioned the impugned award on the grounds taken in the memo of appeal. 4. The claimant-injured invoked the jurisdiction of the Tribunal in terms of the mandate of Section 166 of the Motor Vehicles Act, 1988 (for short "the MV Act") and sought compensation on the ground that he sustained injuries in the vehicular accident, which was caused by Shri Bhopal Singh, while driving the scooter, bearing registration No. HP33A1620, on 06.05.2005, at about 9.00 a.m. at Village Lunapani, rashly and negligently. 5. The claim petition was resisted by the respondents in the claim petition on the grounds taken in the respective memo of objections. 6. Following issues came to be framed by the Tribunal on 19.07.2007: "1. Whether the respondent No. 1 was driving the scooter No. HP33A1620 on 6.5.2005 at about 9 am at village Lunapani in a rash and negligent manner resulting in injuries to the petitioner, as alleged? OPP 2. If issue No. 1 is proved, whether the petitioner is entitled for compensation, if so, as to what amount and from whom? OPP 3. Whether respondent No. 1 was not holding a valid and effective driving licence at the time of the accident and the vehicle was driven in violation of the terms and conditions of the insurance policy as alleged? OPR2. 4. Relief." 7. The claimant-injured examined Shri Rajender Kumar as PW2, Dr. Sanjeev Raj Kapoor as PW3 and himself stepped into the witness box as PW1. The owner/insured-cum-driver of the offending vehicle appeared in the witness box as RW1. OPR2. 4. Relief." 7. The claimant-injured examined Shri Rajender Kumar as PW2, Dr. Sanjeev Raj Kapoor as PW3 and himself stepped into the witness box as PW1. The owner/insured-cum-driver of the offending vehicle appeared in the witness box as RW1. The appellant-insurer has not led any evidence, thus, the evidence led by the claimant-injured has remained unrebutted. 8. Learned counsel for the appellant-insurer argued that there was collusion between the claimant-injured and the owner/insured-cum-driver of the offending vehicle. 9. It is worthwhile to record herein that the appellant-insurer has not taken the said defence in the reply. However, application under Section 170 of the MV Act was filed before the Tribunal, which was granted, but it has not led any evidence to this effect. Issue No. 1: 10. I have gone through the evidence recorded and am of the considered view that the claimant-injured has proved that he has received the injuries due to the rash and negligent driving of the scooter by the owner/insured-cum-driver. Thus, the findings returned by the Tribunal on issue No. 1 are upheld. 11. Before I deal with issue No. 2, I deem it proper to determine issue No. 3. Issue No. 3: 12. It was for the appellant-insurer to lead evidence to prove issue No. 3, has not led any evidence, thus, has failed to discharge the onus. Accordingly, the findings returned by the Tribunal on issue No. 3 are also upheld. Issue No. 2: 13. The amount awarded is too meager, but the claimant-injured has not questioned the same. Accordingly, the same is reluctantly upheld. 14. Having said so, the impugned award merits to be upheld and the appeal is to be dismissed. Accordingly, the impugned award is upheld and the appeal is dismissed. 15. Registry is directed to release the awarded amount in favour of the claimant-injured strictly as per the terms and conditions contained in the impugned award after proper identification. 16. Send down the record after placing copy of the judgment on Tribunal's file.