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Himachal Pradesh High Court · body

2015 DIGILAW 1470 (HP)

Mukesh Bhardwaj v. Anju Bhardwaj

2015-10-09

MANSOOR AHMAD MIR

body2015
JUDGMENT Mansoor Ahmad Mir 1. Appellants have questioned the judgment and award dated 19.2.2009, made by the Motor Accident Claims Tribunal, Fast Track Court, Una in MAC Petition No. 39/03 RBT 59/05/03, titled Anju Bhardwaj and another versus Mukesh Bhardwaj and others, for short “the Tribunal”, whereby compensation to the tune of Rs.10,40,000/- alongwith interest @ 7.5% per annum was awarded in favour of the claimants and appellants herein came to be saddled with the liability, hereinafter referred to as “the impugned award”, for short. 2. Claimants and insurer have not questioned the impugned award on any ground, thus it has attained finality so far it relates to them. 3. The insured/owner and driver have questioned the impugned award on the grounds that the Tribunal has fallen in an error in discharging the insurer from the liability despite the fact that the insurance was subsisting and no breach was committed by the owner and the driver. The appellants have not questioned the impugned award on any other ground. Thus, the only question to be determined in this appeal is whether the Tribunal has rightly discharged the insurer from the liability or otherwise? 4. In order to return the findings on the issue, it is necessary to give a flash-back of the facts which have given birth to the instant appeal. 5. Anju Bhardwaj and Master Manas claimants invoked the jurisdiction of the Tribunal for the grant of compensation to the tune of Rs.30 lacs, as per the break-ups given in the claim petition. It is averred in the claim petition that on 1.12.2002 Dinesh Bhardwaj husband of claimant No. 1 Anju Bhardwaj and father of claimant No. 2 became victim of a vehicular accident which was caused by Ram Paul respondent No. 2 in the claim petition, while driving vehicle, i.e. Jeep/ Pickup bearing registration No. HP-55-3565 rashly and negligently in which the deceased was occupant, sustained injuries and succumbed to the injuries. 6. The claim petition was resisted by the respondents in the claim petition and following issues came to be framed. 6. The claim petition was resisted by the respondents in the claim petition and following issues came to be framed. (i) Whether on 1.12.2002 Dinesh Bhardwaj was traveling in Jeep/pick-up van No. HP-44-3565 being driven by respondent No. 2 in a rash and negligent manner and at place village Kinnu under P.S. Amb the said vehicle fell in a nalla and Dinesh Kumar sustained fatal injuries to his person and succumbed to the same later on as alleged? OPP. (ii) If issue No. 1 is proved in affirmative whether the petitioners are entitled for compensation, if so to what amount and from which of the respondents? OPP. (iii) Whether the petition is filed in collusion with respondents No. 1 and 2 as alleged? OPP. (iv) Whether respondent No. 2 was not holding a valid and effective driving licence at the relevant time as alleged? OPR-3. (v) Whether the vehicle was being used in violation of terms and conditions of insurance policy and the deceased was traveling as gratuitous passengers as alleged? OPR-3. (vi) Relief. 7. Claimants have examined four witnesses including claimant No. 1 Anju Bhardwaj, who stepped into the witness-box as PW3. 8. Driver Ram Paul also stepped into the witness box as RW-1 and insurer examined one Nasib Chand as RW-2. 9. The owner has not led any evidence. 10. The Tribunal, after hearing the learned counsel for the parties and scanning the evidence, oral as well as documentary, held that the claimants have proved that Dinesh Bhardwaj was an occupant of the offending vehicle, which was being driven by driver Ram Paul-respondent No. 2 in the claim petition rashly and negligently and caused the accident in which deceased sustained injuries and succumbed to the same. 11. I have examined the record. The findings recorded by the Tribunal on this issue are not in dispute, accordingly, the same are upheld. 12. 11. I have examined the record. The findings recorded by the Tribunal on this issue are not in dispute, accordingly, the same are upheld. 12. Before I deal with issue No. 2, I deem it proper to determine issues No. 3, 4 and 5 for the reasons that the learned counsel for the insurer has also argued in alternative that in case the insurer is saddled with the liability, the amount awarded is excessive and not in accordance with the mandate of Chapter-XI of the Motor Vehicles Act, for short “the Act, read with Sarla Verma and others versus Delhi Transport Corporation and another reported in AIR 2009 SC 3104 and upheld in Reshma Kumari and others versus Madan Mohan and another, reported in 2013 AIR SCW 3120. 13. Issue No. 3. It was for the insurer to lead evidence. However, no evidence has been led. The Tribunal has rightly decided this issue in favour of the claimants and against the insurer and the insurer has not questioned the findings returned on this issue. Accordingly, the findings returned on this issue are upheld. 14. Issue No. 4. It was for the insurer to prove that the driver was not having a valid and effective driving licence. The Tribunal has given findings in para 16 of the impugned award and held that the driver was having a valid and effective driving licence. I have gone through the record. The Driver was having a valid and effective licence to drive the vehicle, cannot be said to be ineffective on any count. However, the insurer has not questioned the findings on this issue, Thus, the findings so returned by the Tribunal are upheld. 15. Issue No. 5. It was for the insurer to prove that the deceased was a gratuitous passenger, has not led any evidence to prove that the deceased was a gratuitous passenger or the vehicle was used for carrying passengers. There is nothing on the file, which can be made basis for holding that the deceased was traveling in the offending vehicle as gratuitous passenger. The insurer has produced the copy of insurance policy in the open Court, which was made part of the file, which do disclose that risk of third party, including driver was covered. 16. There is nothing on the file, which can be made basis for holding that the deceased was traveling in the offending vehicle as gratuitous passenger. The insurer has produced the copy of insurance policy in the open Court, which was made part of the file, which do disclose that risk of third party, including driver was covered. 16. The Registration Certificate is at page 169 of the record, which also do disclose that the gross weight of the vehicle is 2750Kg. and is a light motor vehicle. The sitting capacity is three, including driver. 17. The owner and driver have specifically pleaded in para 6 of the reply that deceased was an occupant of the vehicle along with his domestic articles. This averment has not been denied by the insurer and it is admission on the part of the driver and owner. The deceased was occupant of the vehicle, his risk is covered. 18. The insurer has to plead and prove that the insured has committed willful breach as per the mandate of Section 147 and 149 of the Act read with terms and conditions contained in the insurance policy, has not led any evidence to prove the terms and conditions of the insurance policy or that the owner has committed willful breach in terms of Section 147 and 149 of the Act. Thus, the insurer cannot seek exoneration. My this view is fortified by the judgment delivered by the apex court in National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004 Supreme Court 1531. It is apt to reproduce relevant portion of para 105 of the judgment herein: “105. ..................... (i) ......................... (ii) ........................ (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v)......................... (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insured under Section 149 (2) of the Act.” 19. The Apex Court in Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217, has also laid down the same principles. 20. Having said so, the findings returned on issues No. 3 and 5 are set aside and it is held that the insurer has failed to prove these issues. 21. In the given circumstance, the Tribunal has wrongly discharged the insurer from the liability and is to be saddled with the entire liability. 22. Issue No. 2. The deceased was 29 years of age at the time of accident which is recorded in para 12 of the impugned award. He was a government employee and his gross salary is recorded as Rs.7190/- as per the salary certificate Ext. 22. Issue No. 2. The deceased was 29 years of age at the time of accident which is recorded in para 12 of the impugned award. He was a government employee and his gross salary is recorded as Rs.7190/- as per the salary certificate Ext. PW2/A. The Tribunal has fallen in an error in applying the multiplier of “17” while keeping in view the 2nd Schedule appended to the Act read with Sarla Verma and Reshma Kumari’s cases, referred to supra. The multiplier of “16” was applicable. 23. The Tribunal has also fallen in an error while making the assessment and coming to the conclusion that the annual income of the deceased was Rs.91,000/-. Admittedly, his salary was Rs.7190/- per month and Tribunal has taken his salary as Ra.7000/-. If his monthly income was Rs.7000/- his annual income was Rs.84000/- and not Rs.91,000/-. 1/3rd was to be deducted out of Rs.84,000/-. Thus, the claimants have lost source of dependency to the tune of Rs.56,000/- per year and are held entitled to compensation under the head “Loss of dependency” to the tune of Rs.56000/-x16= Rs.8,96,000/-. The Tribunal has also awarded Rs.8000/- as conventional charges, which is upheld. Having said so, the claimants are entitled to compensation to the tune of Rs.8,96,000+Rs.8000/-= Rs.9,04000/- in addition to the statutory amount of Rs.25,000/- deposited by the appellants herein, which is awarded as cost in favour of the claimants. 24. Viewed thus, the impugned award is modified, as indicated hereinabove and the appeal is allowed. 25. The compensation to the tune of Rs.9,04,000/- plus Rs.25,000/- =Rs.9,29,999/- is awarded in favour of the claimants alongwith interest @7.5% from the date of claim petition till its realization and insurer is saddled with the liability. 26. The insurer is directed to deposit the entire amount of compensation, i.e., Rs.9,04,000/- alongwith interest within eight weeks from today. On deposit, the Registry is directed to release the amount, including statutory amount of Rs.25,000/- in favour of the claimants, strictly, as per the terms and conditions contained in the impugned award, through payee’s cheque account. 27. The impugned award is modified, as indicated hereinabove and the appeal is disposed of. 28. Send down the record, forthwith, after placing a copy of this judgment.