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2015 DIGILAW 1857 (HP)

Padam Dass v. Man Kumari

2015-12-11

MANSOOR AHMAD MIR

body2015
JUDGMENT : Mansoor Ahmad Mir, J. Challenge in this appeal is to the judgment and award dated 10.07.2009, made by the Motor Accident Claims Tribunal, Fast Track Court, Shimla, Camp at Rohru (for short "the Tribunal") in M.A.C. No. 42R/ 2 of 2008/2006, titled as Smt. Man Kumari and another versus Sh. Padam Dass and others, Whereby compensation to the tune of Rs. 2,03,000/with interest @ 9% per annum from the date of filing of the petition till its realization came to be awarded in favour of the claimants and the owner-insured was saddled with liability (for short "the impugned award"). 2. The claimants and the insurer 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 appellants, i.e. the owner-insured and the driver of the offending vehicle, have questioned the impugned award on the ground that the Tribunal has fallen in an error in saddling appellant No. 1, i.e. the owner-insured, with liability, on the grounds taken in the memo of appeal. 4. The claimants invoked the jurisdiction of the Tribunal in terms of Section 166 of the Motor Vehicles Act, 1988 (for short "the MV Act") for grant of compensation to the tune of Rs. 10,00,000/, as per the breakups given in the claim petition. 5. The respondents in the claim petition contested the same by the medium of replies. 6. Following issues came to be framed by the Tribunal on 05.08.2008: "1. Whether Sh. Megh Raj died due to the rash and negligent driving of the tractor No. HP100748 by the respondent driver Sh. Gur Dev as alleged? OPP 2. If issue No. 1 i proved in affirmative, whether the petitioners are entitled to the compensation as claimed. If so, its quantum and from whom? OP Parties. 3. Whether Sh. Gur Dev was not holding and possessing a valid and effective driving licence to drive the tractor as alleged. If so, its effect? OPR3 4. Whether the vehicle was being driven in violation of the terms and conditions of the insurance policy. If so, its effect? OPR3 5. Whether the tractor was being run without valid registration cum fitness certificate and route permit etc. as alleged? OPR3 6. Whether the petition is collusive as alleged? OPR3 7. Relief." 7. If so, its effect? OPR3 4. Whether the vehicle was being driven in violation of the terms and conditions of the insurance policy. If so, its effect? OPR3 5. Whether the tractor was being run without valid registration cum fitness certificate and route permit etc. as alleged? OPR3 6. Whether the petition is collusive as alleged? OPR3 7. Relief." 7. The claimants examined Rukam Chand as PW1 and one of the claimants, namely Shri Thumb Bhadur, appeared in the witness box as PW2. The respondents have not led any evidence, but the owner-insured and the driver of the offending vehicle, namely Shri Padam Dass and Shri Gur Dev, appeared in the witness box as RW1 and RW2, respectively. 8. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimants have proved that the accident was outcome of rash and negligent driving of the tractor, bearing registration No. HP100748, by its driver, namely Gur Dev, on 26.01.2006, at place Gushali and accordingly decided issue No. 1 in favour of the claimants. 9. The Tribunal has assessed the compensation, the quantum of which is not in dispute, and saddled the owner-insured of the offending vehicle with liability on the ground that Shri Dhani Ram was not competent to drive the same and the owner-insured has committed breach, which is subject matter of this appeal. 10. The question is whether the owner-insured has committed any willful breach? 11. It appears that the FIR has been lodged by appellant No. 2, who is said to be the driver of the offending vehicle and son of the owner-insured, which stands proved as Ext. PW1/ A. Nobody has questioned the genuineness of the said FIR. It has specifically been recorded in the said FIR that Dhani Ram was engaged by the appellants as a helper with the offending vehicle and he was on the wheel of the offending vehicle at the relevant point of time. 12. The appellants, i.e. the owner-insured and the driver, in para 24 of the reply to the claim petition, have stated that it was the deceased, who had taken the keys of the offending vehicle fraudulently and was driving the same at the time of the accident. It is apt to reproduce para 24 of the reply filed by the appellants herein: "24. It is apt to reproduce para 24 of the reply filed by the appellants herein: "24. That the contents of para 24 of the petition are wrong and denied emphatically. The deceased was not traveling in the tractor. Nor he was employ. The respondent No. 2 is driver having perfect legal license to drive the vehicle. But on the alleged date the tractor was parked and the deceased by procuring key fraudulently drove the tractor himself and caused the alleged accident hence the petitioner are rather liable to pay damages to the respondents. Rest of the averments of para 24 of the petition are denied emphatically. If at all the petitioner are found entitled then the replying respondents are indemnified by the insurance company." 13. It was for the appellants to prove that the offending vehicle was being driven by the deceased un-authorizedly. Neither such FIR has been lodged before any agency or the police nor evidence has been led to prove that the deceased was driving the offending vehicle. If at all the deceased was driving the offending vehicle un-authorizedly at the time of the accident, why the owner-insured has not taken any action. 14. In the FIR, Ext. PW1/ A, appellant No. 2, i.e. the driver of the offending vehicle, has himself stated that it was Dhani Ram, who was the in charge of the offending vehicle at the relevant point of time. 15. In view of the above, FIR (Ext. PW1/A) and para 24 of the reply (supra) are at variance. 16. The Tribunal, after discussing the pleadings and the evidence, rightly came to the conclusion that Dhani Ram was driving the offending vehicle at the time of the accident, who was not having any valid and effective driving licence to drive the same. 17. After making the discussion in paras 21 and 21A of the impugned award how the owner-insured has committed breach, the Tribunal has rightly discussed the statement of Gur Dev (RW2), who has lodged the FIR and has virtually admitted in the said FIR that Dhani Ram was on the wheel of the offending vehicle at the time of the accident. 18. 18. Having said so, the Tribunal has rightly held that Dhani Ram was driving the offending vehicle at the relevant point of time, who was not having a valid and effective driving licence to drive the same and the owner-insured has committed breach. 19. Learned counsel for the appellants argued that Dhani Ram was not authorized by the owner-insured or the driver of the offending vehicle to drive the same, if, at all, the accident had taken place due to the rash and negligent driving of Dhani Ram. 20. The argument of the learned counsel for the appellants is not tenable for the reason that in case the keys of the offending vehicle were with appellant No. 2 at the relevant point of time, as alleged, then how Dhani Ram or any other person including the deceased drove the same and caused the accident. Thus, adverse inference is to be drawn. 21. This Court in a batch of two appeals, FAO No. 10 of 2012, titled as Nirmala Devi & another versus Sh. Ravinder Kumar & others, being the lead case, decided on 01.08.2014, and another batch of two appeals, FAO No. 347 of 2007, titled as Kesari Devi versus Anil Kumar Mastana & others, being the lead case, decided on 19.12.2014, has held that even if the owner-insured pleads that the person, who was driving the vehicle without having a valid and effective driving licence at the relevant point of time, had taken the keys fraudulently, is breach on the part of the owner-insured. 22. Having said so, the impugned award is well reasoned, speaking one and the Tribunal has rightly saddled the owner-insured with liability, needs no interference. 23. Viewed thus, the impugned award is upheld and the appeal is dismissed. 24. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award after proper identification. 25. Send down the record after placing copy of the judgment on Tribunal's file.