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Himachal Pradesh High Court · body

2015 DIGILAW 678 (HP)

Partap Chand v. Harinder Kumar

2015-06-05

MANSOOR AHMAD MIR

body2015
Judgment Mansoor Ahmad Mir, J. Both these appeals are directed against the award, dated 1st April, 2008, passed by the Motor Accident Claims Tribunal, Chamba, (for short, the Tribunal), in Claim Petition No.31 of 2007, titled Harinder Kumar vs. Partap Chand and others, whereby compensation to the tune of Rs.8,93,230/-, with interest at the rate of 9%, from the date of filing of the Claim Petition till realization, was awarded in favour of the claimant-injured, and the insurer was saddled with the liability, with right of recovery, (for short, the impugned award). 2. The owner-insured has questioned the impugned award by the medium of FAO No.308 of 2008 on the ground that the Tribunal has fallen in error in granting the right of recovery in favour of the insurer. 3. The insurer has challenged the impugned award by way of FAO No.353 of 2008 on the ground that the amount awarded is excessive and the amount was to be satisfied by the owner/insured, without asking the insurer to indemnify at the first instance. 4. The claimant-injured has not questioned the impugned award on any count, thus, the same has attained finality so far as it relates to him. 5. Before dealing with the contentions raised by the learned counsel for the insured and the insurer, I deem it proper to hold that the Tribunal has fallen in error in awarding interest from the date of the claim petition under the Heads – ‘Loss of amenities of life’ ‘attendant charges’ and ‘loss of future income’. In terms of the decisions of the Apex Court in R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755 , Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another, 2010 AIR SCW 6085, Ramchandrappa versus The Manager, Royal Sundaram Aliance Insurance Company Limited, 2011 AIR SCW 4787 and Kavita versus Deepak and others, 2012 AIR SCW 4771, in an injury case, the interest under these heads is to be awarded from the date of the award and not from the date of Claim Petition. Accordingly, the impugned award needs to be modified to that extent. 6. Accordingly, the impugned award needs to be modified to that extent. 6. Coming to the appeal filed by the owner/insured, admittedly, the driver of the offending vehicle though was having a driving licence at the time of accident, which occurred on 12th August, 2004, but that had lost its life on 13th June, 2004 and the same came to be renewed only w.e.f. 24th August, 2004. 7. The Apex Court in Ram Babu Tiwari vs. United India Insurance Co.Ltd. & Ors, 2008 AIR SCW 6512, has held that the licence was not valid in case it was not renewed on the date of its expiry and renewed from a subsequent date. It is apt to reproduce paragraphs 13 and 19 of the said decision hereunder: “13. The question as to whether the owner of a vehicle had taken care to inform himself as to whether the driver entrusted to drive the vehicle was having a licence or not is essentially a question fact. However, in this case, it stands admitted that as on the date of accident, namely, on 27.1.1996, the driver did not hold any licence. Furthermore, it is beyond dispute that he had a licence only for one year and for about 3 years thereafter, he failed and neglected to renew his licence. His licence was renewed only on and from 7.2.1996. …………… ……………. …………… 19. The principle laid down in Kusum Rai (supra) has been reiterated in Ishwar Chandra & Ors. v. Oriental Insurance Co. Ltd. & Ors. [ (2007) 10 SCC 650 ], referring to sub-section (1) of Section 15 of the Act, this Court stated the law, thus : "9. From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder. The proviso appended to Section 15 (1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place 28-4-1995. As on the said date, the renewal application had not been filed, the driver did not have a valid licence on the date when the vehicle met with the accident."” 8. The accident took place 28-4-1995. As on the said date, the renewal application had not been filed, the driver did not have a valid licence on the date when the vehicle met with the accident."” 8. Therefore, the driver of the offending vehicle cannot be said to be having a valid and effective driving licence at the relevant point of time and, therefore, the Tribunal has rightly held that the owner had committed breach. In the given circumstances, it can safely be held that the owner has committed the breach for the simple reason that the driver of the offending vehicle was not having any licence, what to speak of valid and effective driving licence, at the relevant point of time. Accordingly, the point raised by the owner-insured is turned down. 9. Coming to FAO No.353 of 2008, filed by the insurer, I wonder why the insurer has filed this appeal. The appeal is devoid of any force for the following reasons. It is beaten law of the land that the insurer has to satisfy the third party claim, and in case the insured commits any breach, the insurer has a right of recovery. 10. I accordingly hold that the Tribunal has rightly granted the right of recovery to the insurer. 11. The second contention raised by the learned counsel for insurer that the amount awarded by the Tribunal is excessive is devoid of any force and needs to be repelled for the reason that the injured suffered 60% permanent disability, remained in hospital and is dependant upon attendant, which facts have been proved by the claimant-injured by leading cogent evidence. The said injury has shattered the physical frame of the claimant-injured and has rendered him a burden on his family forever. Due to the injury sustained by the claimant, his marital prospects have been marred and he cannot get a suitable match for marriage. 12. Having said so, the amount awarded is not excessive in any way, rather is meager. But unfortunately, the claimant has not filed any appeal for enhancement, therefore, the amount of compensation awarded by the Tribunal is upheld, by modifying the rate of interest, as discussed above. 13. Accordingly, the appeal filed by the insurer i.e. FAO No.353 of 2008 is dismissed. But unfortunately, the claimant has not filed any appeal for enhancement, therefore, the amount of compensation awarded by the Tribunal is upheld, by modifying the rate of interest, as discussed above. 13. Accordingly, the appeal filed by the insurer i.e. FAO No.353 of 2008 is dismissed. The appeal filed by the insured is allowed to the extent that the interest, as awarded by the Tribunal, on the amount awarded under the heads – ‘Loss of amenities of life’ ‘attendant charges’ and ‘loss of future income’, shall be payable from the date of the impugned award. 14. The impugned award is accordingly modified. The Registry is directed to release the amount in favour of the claimant-injured strictly in terms of the impugned award and the excess amount, if any, deposited by the insurer be released in its favour through payees’ account cheque. The insurer is at liberty to recover the award amount from the insured. 15. Having glance of the above discussion, FAO No.308 of 2008 is allowed, as indicated above, and FAO No.353 of 2008 is dismissed. A copy of this judgment be placed on the record of connected appeal.