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2015 DIGILAW 536 (HP)

Oriental Insurance Company Ltd. v. Geeta Devi

2015-05-15

MANSOOR AHMAD MIR

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JUDGMENT Mansoor Ahmad Mir, J. By this judgment and order, all the appeals are being disposed of together because they are outcome of a motor vehicular accident, which was caused by driver, namely, Kali Dass @ Ramesh Kumar, while driving Swaraj Mazda bearing registration No. HP-28-1666, rashly and negligently. 2. In FAOs No. 140 & 146 of 2008, the insurer-Oriental Insurance Company Limited has questioned the awards passed in Claim Petition No. 67 of 2004 titled as Smt. Geeta Devi versus Jaiwanti Devi & others and Claim Petition No. 68 of 2004, titled as Raj Kumar versus Jaiwanti Devi & others, dated 4th January, 2008, hereinafter referred to as ‘the impugned awards’, on grounds taken in the memo of appeals. 3. By the medium of FAOs No. 194 & 195 of 2008, the owner has questioned the aforesaid impugned awards, on the grounds taken in the memo of appeals. Brief Facts: 4. The claimants being victims of the motor vehicular accident had filed claim petitions before the Tribunal for grant of compensation, as per the break-ups given in the respective claim petitions. It is averred in the claim petitions that on 08.02.2004, Parvej Kumar and Raj Kumar had boarded Swaraj Mazda bearing registration No. HP-28-1666 to attend a marriage ceremony at village Gharwalhri, Tehsil Sadar, District Mandi, H.P., and while returning back, the vehicle met with an accident, at about 5.30 p.m., near the aforesaid village, which was being driven by driver, namely, Kali Dass @ Ramesh Kumar, rashly and negligently and Parvej Kumar and Raj Kumar sustained injuries and Parvej Kumar succumbed to the injuries. 5. The respondents resisted the claim petitions on the grounds taken in the respective memo of objections. 6. The Tribunal, on the pleadings of the parties, framed common issues in both the claim petitions. It is apt to reproduce the issues framed in Claim Petition No. 67 of 2004:- 1. Whether respondent No. 2 was driving the Swaraj Mazda HP-28-1666 on 7.2.2004, at 5.30 p.m., at Village Gharwalhi, in rash and negligent manner, resulting in death of Parvej Kumar, as alleged? ….OPP 2. If issue No. 1 is proved, to what amount and from whom the petitioner is entitled? …OPP 3. Whether respondent No. 2 was driving the Swaraj Mazda HP-28-1666 on 7.2.2004, at 5.30 p.m., at Village Gharwalhi, in rash and negligent manner, resulting in death of Parvej Kumar, as alleged? ….OPP 2. If issue No. 1 is proved, to what amount and from whom the petitioner is entitled? …OPP 3. Whether the driver of the vehicle HP-28-1666 at the time of accident was not holding a effective and valid driving licence and was driving the vehicle in violation of the terms and conditions of the insurance policy, as alleged? ….OPR-3 4. Whether the petitioner alongwith other passenger was traveling as gratuitous passenger in vehicle HP-28-1666, as alleged? If so, its effect? ….OPR-3 5. Relief.” 7. The parties led evidence in both the claim petitions. The Tribunal, after scanning the evidence, oral as well as documentary, passed the impugned awards, whereby the insurer-Insurance Company was asked to satisfy the impugned awards, with right of recovery. 8. The claimants and the driver have not questioned the impugned awards, on any count. Thus, it has attained finality, so far as it relates to them. 9. The insurer-Oriental Insurance Company has questioned both the impugned awards, by the medium of FAOs No. 140 & 146 of 2008, on the ground that the Tribunal has fallen in error in directing it to satisfy the impugned awards. 10. The owner-insured has also questioned both the impugned awards, by the medium of FAOs No. 194 & 195 of 2008, on the ground that the Tribunal has fallen in error in granting right of recovery to the insurer. 11. The only dispute in these appeals is-whether the Tribunal has rightly granted right of recovery to the insurer. The answer is in the affirmative. 12. The claimants have specifically averred in the claim petitions that claimant Raj Kumar and deceased Parvej Kumar were traveling in the offending vehicle after attending the marriage at Village Gharwalhri, the vehicle met with an accident and they sustained injuries and Parvej Kumar succumbed to the injuries. 13. The answer is in the affirmative. 12. The claimants have specifically averred in the claim petitions that claimant Raj Kumar and deceased Parvej Kumar were traveling in the offending vehicle after attending the marriage at Village Gharwalhri, the vehicle met with an accident and they sustained injuries and Parvej Kumar succumbed to the injuries. 13. It is apt to reproduce para 24(i) of Claim Petition No. 67 of 2004 herein :- “(i) That on the unfortunate and fateful day of 8-2-2004, deceased alongwith his father Raj Kumar has gone alongwith other persons of village to attend the marriage at village Gharwalhi, Tehsil Sadar, District Mandi, H.P. and while returning from the above marriage in the ill-fated vehicle i.e. Swaraj Mazda bearing No. HP-28-1666, owned by respondent No. 1, which was being driven by respondent No. 2 in very high speed and in very rash and negligent manner and at about 5.30 PM near about 20 mts. ahead from village Gharwalhi on Mandi-Dharampur road, respondent No. 2 lost control over the vehicle and as a result of which the vehicle met with an accident and fell downwards from the road. Due to the above accident, the deceased son of petitioner sustained various injuries on different parts of body which proved fatal, as deceased was removed to Zonal Hospital Mandi where declared dead, as he had succumbed to injuries in way to Hospital.” 14. Keeping in view the pleadings of the claimants, it can safely be held that the injured and deceased were traveling in the offending vehicle as gratuitous passengers. 15. In terms of the mandate contained in Chapter-XI, Sections 146, 147 and 149 of the Motor Vehicles Act, 1988 read with the fact that claimants are the third parties, the Tribunal has rightly directed the insurer to satisfy the impugned award, at the first instance, with right of recovery. 16. Accordingly, the impugned awards are upheld and the appeals are dismissed. 17. The Registry is directed to release the entire compensation amount in favour of claimants, strictly as per the terms and conditions, contained in the impugned awards. 18. Send down the records after placing a copy of the judgment on each file of the claim petitions.