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2015 DIGILAW 213 (HP)

United India Insurance Co. Ltd. v. Roop Chand

2015-03-20

MANSOOR AHMAD MIR

body2015
Judgment : Mansoor Ahmad Mir, J. This appeal is directed against the judgment and award dated 28.03.2007, made by the Motor Accident Claims Tribunal, Hamirpur, H.P. in MAC Petition No. 42 of 2006, titled Roop Chand versus United India Insurance Company Ltd. and others, whereby compensation to the tune of Rs.63,640/- came to be awarded in favour of the claimant/respondent No.1 herein, on account of injuries suffered by him and insurer came to be saddled with the liability, hereinafter referred to as “the impugned award”, for short, on the grounds taken in the memo of appeal. 2. The claimant had filed claim petition before the Motor Accident Claims Tribunal for the grant of compensation, on account of injuries suffered by him in an accident, caused by rash and negligent driving of the driver of Bus No. HP-67-0246, namely, Parvinder Kumar @ Nitu, owned by respondent No.2 and insured with respondent No.1, on 8.5.2004 at about 10 a.m. at Hathli on Bhota Hamirpur road. It is averred that the claimant was driving his motorcycle and was hit by the aforementioned bus from behind due to which he suffered multiple injuries including fractures. He was taken to Zonal Hospital, Hamirpur and then referred to other hospitals for further treatment. A sum of Rs.1,50,000/- is stated to have been spent on his treatment. 3. Respondents resisted and contested the claim petition and following issues came to be framed. (i) Whether the petitioner suffered injuries due to the rash and negligent driving of Bus No.HP-67-0246 by respondent No.3 ? ……OPP. (ii) If Issue No. 1 is proved in affirmative, to what amount of compensation, the petitioner is entitled to and from whom? …….OPP (iii) Whether the respondent No. 3 was not holding a valid and effective driving license to drive the vehicle in question at the time of accident? …..OPR-1. (iv) Relief. 4. Parties led evidence. 5. The claimant has proved by leading oral as well as documentary evidence that driver Parvinder Kumar @ Nitu had driven the offending vehicle rashly and negligently, on the said date and caused the accident wherein the claimant sustained injuries. The insurer examined two witnesses in defence and driver also appeared in the witness-box as RW-1. 6. The claimant has proved by leading oral as well as documentary evidence that the driver of the offending vehicle has driven the same rashly and negligently, which has remained unrebutted. 7. The insurer examined two witnesses in defence and driver also appeared in the witness-box as RW-1. 6. The claimant has proved by leading oral as well as documentary evidence that the driver of the offending vehicle has driven the same rashly and negligently, which has remained unrebutted. 7. It is also worthwhile to mention herein that owner and driver, respondents No. 2 and 3 respectively in the claim petition as well as in the appeal, have not questioned the impugned award on any ground, thus it has attained finality so far it relates to them. Thus, findings on Issue No. 1 are upheld. 8. Before I deal with Issue No. 2, I deem it proper to deal with Issue No. 3. It was for the insurer, i.e. respondent No. 1 to prove this issue, has examined two witnesses, namely Balkar Singh, Administrative Officer, United India Insurance Company, (RW-2) and Sanjay Kumar, Clerk, R.T.O. Office, Hamirpur (RW-3). RW-2 Balkar Singh has proved the contents of Insurance policy exhibited as Ext. RW2/A, and has stated nothing about the driving license, not to speak of any breach. 9. RW3 Sanjay Kumar, Clerk, R.T.O. Office, Hamirpur has deposed that the concerned authorities had issued driving license in favour of the driver and was competent to drive light motor vehicle. Thereafter, he was empowered to drive heavy goods vehicle/Heavy Transport Vehicle w.e.f. 4.12.1995 and 20.11.2004, respectively. He has also stated that driver was competent to drive other vehicles because he had 15 years experience of driving at his back and was not disqualified to drive passenger vehicle. 10. It was for the insurer to plead and prove that driver was not having a valid and effective driving license. It has not led any evidence to that effect but its own witness has stated that driver was not disqualified from driving passenger vehicle, as discussed and determined by the learned Tribunal in the impugned award. 11. The insurer has failed to plead and prove that owner has committed any breach, not to speak of willful breach, in order to seek exoneration. It is beaten law of land that a party to the lis has to plead and prove the grounds available in his/their armoury as a weapon of defence. 11. The insurer has failed to plead and prove that owner has committed any breach, not to speak of willful breach, in order to seek exoneration. It is beaten law of land that a party to the lis has to plead and prove the grounds available in his/their armoury as a weapon of defence. Admittedly, this ground was neither pleaded nor raised in the claim petition by the insurer, not to speak of proof of the same, thus, cannot now be pressed into service. My this view is fortified by the decision rendered by the apex Court in Fahim Ahmad & Ors. versus United India Insurance Co. Ltd. & Ors., reported in 2014 AIR SCW 2045. The same principles of law have been laid down by the apex Court in National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004, Supreme Court 1531. 12. This Court in a bunch of appeals, FAO No. 77 of 2008 being the lead case, titled as National Insurance Company Ltd. versus Smt. Nirmala Devi and others, decided on 11th April, 2014, in another bunch of four appeals, FAO No. 318 of 2006, being the lead case, titled as National Insurance Company Ltd. versus Smt. Sumna Devi and others, decided on 9th May, 2014 and FAO No. 196 of 2008 titled Sarwan Singh versus Bimla Sharma and others, alongwith connected matter has also laid down the same principles of law. 13. Having said so, the Tribunal has rightly saddled the insurer with the liability. 14. I deem it proper to record herein that insurer has questioned the impugned award, in which a very meager amount is awarded and has dragged the claimant to this lis for nothing. Thus, it was a fit case to saddle the insurer with costs, but in the given circumstances, I refrain from doing so. 15. The appeal is devoid of any force, merits to be dismissed and is accordingly dismissed. The impugned award is upheld. Registry is directed to release the amount in favour of the claimant, through payee’s cheque account, strictly, in terms of the conditions contained in the impugned award. 16. Send down the record forthwith.