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2015 DIGILAW 351 (HP)

Oriental Insurance Company v. Bresti Devi

2015-04-17

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is award, dated 12th April, 2007, made by the Motor Accident Claims Tribunal, Mandi, H.P. (for short "the Tribunal") in Claim petition No. 41 of 2005, titled as Besti Devi and others versus Sh. Nand Lal and another, whereby compensation to the tune of Rs 4,90,000/- with interest @ 7.5% from the date of petition came to be awarded in favour of the claimants (for short "the impugned award"). 2. The insured/owner-cum-driver and the claimants have not questioned the impugned award on any ground, 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. Mr. G.C. Gupta, learned Senior Counsel appearing on behalf of the appellant-insurer, while referring to paras 14 and 15 of the impugned award, argued that the Tribunal has not recorded findings about the rash and negligent driving of the driver, namely Shri Nand Lal, and prayed that the claim petition be dismissed. 5. Thus, the only question to be determined in this appeal is - whether the claimants have proved that the driver has driven the offending vehicle rashly and negligently? 6. In order to thrash out and marshal out the said issue, it is necessary to give a flashback of the case, the womb of which has given birth to the instant appeal. 7. The claimants have 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 break-ups given in the claim petition. 8. Precisely, the case of the claimants, as given in para 24 (i) of the claim petition, is that on 31.05.2005, deceased, namely Shri Mahipal, husband of claimant No. 1 and father of claimants No. 2 & 3, was travelling in a car, bearing registration No. HP-31 A-0517, which was coming to Nagchala from Dharamshala, was being driven by its driver-cum-owner, namely Shri Nand Lal, rashly and negligently, lost control and dashed towards hill side, deceased, namely Shri Mahipal, sustained injuries, was taken to Zonal Hospital, Mandi, whereby he succumbed to the injuries. 9. 9. The driver-cum-owner, who was respondent No. 1 in the claim petition, filed reply to the claim petition, denied para 24 (i) and pleaded that he had not driven the offending vehicle rashly and negligently, but the car was stationary at Bijani, was hit by a truck, which was coming from Jogindernagar side, the deceased sustained injuries and succumbed to the injuries. 10. The appellant-insurer, who was respondent No. 2 in the claim petition, has evasively denied para 24 (i), while filing reply, by recording 'denied for want of knowledge'. 11. The owner-cum-driver has admitted the factum of accident and the death of the deceased. Thus, the only question to be determined in this appeal is - whether the accident was caused by the car or by the truck? 12. It is apt to record herein that the driver-cum-owner of the offending vehicle has neither disclosed the particulars of the truck nor he has made a whisper here and there as to which truck was involved in the accident and who was driving the said truck. He has also not taken steps to array the driver of the said truck as party-respondent nor he has led any evidence in support of the said factum. 13. The claimants have examined eight witnesses including one of the claimants, namely Smt. Bresti Devi, who appeared in the witness box as PW-1. The owner-cum-driver, namely Shri Nand Lal, has appeared himself in the witness box as RW-1 and the insurer has examined Shri Parveen Kumar as RW-2 in support of its case. The Tribunal has discussed the evidence in paras 11 to 13 of the impugned award. 14. PW-4, namely Shri Jai Pal, who was also travelling in the offending vehicle at the time of accident, has specifically stated that Shri Nand Lal had driven the offending vehicle rashly and negligently. PW-2, namely Shri Suresh Kumar, has proved the contents of FIR, Ext. PD, which does disclose that FIR was lodged to the effect that Shri Nand Lal had caused the accident while driving the offending vehicle rashly and negligently. 15. PW-2, namely Shri Suresh Kumar, has proved the contents of FIR, Ext. PD, which does disclose that FIR was lodged to the effect that Shri Nand Lal had caused the accident while driving the offending vehicle rashly and negligently. 15. The owner-cum-driver of the offending vehicle, namely Shri Nand Lal, while appearing in the witness box as RW-1, has stated that he was travelling in the offending vehicle alongwith his friends, namely Shri Jai Pal and Shri Mahipal, and on their request, he stopped the car, the car was hit by a truck and all of them sustained injuries. 16. I deem it proper to record herein that Shri Jai Pal has been examined by the claimants as PW-4, who has deposed that Shri Nand Lal was driving the offending vehicle in fast speed and caused the accident rashly and negligently. 17. PW-4, Shri Jai Pal, one of the occupants of the offending vehicle, has supported the case of the claimants, not of the owner-cum- driver. 18. Having said so, the claimants have proved that Shri Nand Lal had driven the offending vehicle rashly and negligently on the date of accident and caused the accident, in which deceased, namely Shri Mahipal, sustained injuries and succumbed to the injuries. 19. It is a fact that the Tribunal has not recorded the findings about the rash and negligent driving of the offending vehicle by its driver, but while going through the impugned award, one comes to an inescapable conclusion that virtually the Tribunal has come to the conclusion that the accident was outcome of the rash and negligent driving of the offending vehicle by its driver. 20. However, be that as it is, as discussed hereinabove, the claimants have proved the rash and negligent driving of the offending vehicle by its driver, namely Shri Nand Lal, in order to maintain claim petition under Section 166 of the MV Act. 21. Sine qua non for maintaining claim petitions under Section 166 of the MV Act is rash and negligent driving, which the claimants have pleaded and proved, as discussed hereinabove. 22. Learned counsel for the appellant-insurer has not argued about the adequacy of compensation, any willful breach on the part of the owner-cum-driver and has also not questioned the impugned award on any other ground. 23. Viewed thus, no case for interference is made out. 22. Learned counsel for the appellant-insurer has not argued about the adequacy of compensation, any willful breach on the part of the owner-cum-driver and has also not questioned the impugned award on any other ground. 23. Viewed thus, no case for interference is made out. Hence, the appeal merits to be dismissed and the impugned award is to be upheld. Ordered accordingly. 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.