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Himachal Pradesh High Court · body

2015 DIGILAW 68 (HP)

Oriental Insurance Company Ltd. v. Anju

2015-01-09

MANSOOR AHMAD MIR

body2015
JUDGMENT : Mansoor Ahmad Mir, J. 1. Challenge in this appeal is to the judgment and award dated 29.10.2011, made by the Motor Accident Claims Tribunal-I, Solan, District Solan for short "the Tribunal" in MAC Petition No. 1-S/2 of 2009, titled Smt. Anju v. Smt. Promila Devi and others, whereby compensation to the tune of Rs. 5,65,000/- with 7.5% interest, came to be awarded in favour of the claimant and against the respondent-appellant herein, hereinafter referred to as "the impugned award", for short, on the grounds taken in the memo of appeal. 2. Smt. Anju-claimant had invoked the jurisdiction of the Motor Accident Claims Tribunal for the grant of compensation to the tune of Rs. 15 lacs, on the grounds and as per break-ups given in the claim petition. 3. Precisely, the case of the claimant was that on 6.12.2006 deceased Raj Kumar was travelling in the truck bearing registration No. HP-16-1846 as a representative of the owner of the goods, met with an accident at 3.30 a.m. at Yashwant Nagar on Solan Rajgarh Road in which he lost his life, which was caused by its driver, namely, Vijay Kumar, while driving the aforesaid offending truck rashly and negligently. FIR No. 102/2006 dated 6.12.2006, of the said accident was lodged in police station Rajgarh. It is further averred that the deceased was working as welder at the welding shop of Babu Ram, owner of the Truck and was earning Rs. 4500/- per month as salary and Rs. 1500/- per month by doing extra work. The deceased was a skilled worker and claimant has been deprived of her source of income, matrimonial home and virtually she has lost everything. 4. Respondents No. 1 and 3 filed separate replies to the claim petition before the Tribunal. Respondent No. 2 Vijay Kumar, driver was set ex parte before the Tribunal in the claim petition. 5. The Tribunal on the pleadings of the parties framed following issues: (i) Whether the deceased Raj Kumar died in an accident caused due to rash and negligent driving of the respondents No. 2 while driving the vehicle of respondent No.1 ?OPP. (ii) If issue No.1 is proved in affirmative, to what amount of compensation, the petitioner is entitled and from whom? OPP. (ii) If issue No.1 is proved in affirmative, to what amount of compensation, the petitioner is entitled and from whom? OPP. (iii) Whether the vehicle was being plied in violation of terms and conditions of the insurance policy and the respondents No. 3 is not liable to pay the amount of compensation? OPR-3. (iv) Relief. 6. Claimant has examined three witnesses in all, namely, Kamal Sharma (PW1), Narain Dutt Sharma (PW2) and Ramesh Sharma, (PW3). 7. On the other hand, respondents, in the claim petition, have examined four witnesses, namely, Ram Lal (RW1), Promila (RW2), Rajinder Singh (RW3) and Mahinder Kumar (RW4). 8. The Tribunal, after scanning the evidence on record held that the claimant has proved by leading evidence that Vijay Kumar driver of the offending truck has rashly and negligently driven the aforesaid vehicle and caused the accident on 6.12.2006 at about 3 30. a.m. near Yashwant Nagar on Solan Rajgarh Road in which deceased Raj Kumar sustained injuries and succumbed to the same, who was travelling in the said vehicle as a representative of the owner of the goods. 9. The widow-claimant, owner and driver have not questioned the findings returned by the Tribunal on Issue No.1. 10. I have gone through the records. The tribunal has rightly returned the findings on this issue. Accordingly, the findings returned on issue No. 1 are upheld. 11. Issues No. 2 and 3 are inter-dependent, hence are taken up together for determination. 12. The Tribunal, while determining issue No. 3, held that the owner has not committed any willful breach and the said issue came to be decided against the insurer. The insurer has specifically averred in the reply that the deceased was not travelling in the vehicle as a representative of the owner of the goods, but was travelling in the said vehicle as a gratuitous passenger, has not led any evidence to prove the same. It was for the insurer to plead and prove that the deceased was travelling in the said vehicle as a gratuitous passenger. Therefore, the insurer is not liable to indemnify the award. 13. This Court in FAO No. 362 of 2012 titled ICICI Lombard General Insurance Company v. Sumitra Devi and others, in terms of the apex Court judgment in case titled National Insurance Co. Therefore, the insurer is not liable to indemnify the award. 13. This Court in FAO No. 362 of 2012 titled ICICI Lombard General Insurance Company v. Sumitra Devi and others, in terms of the apex Court judgment in case titled National Insurance Co. Ltd. v. Swaran Singh & others, reported in AIR 2004 SC 1531 , held that the insurer has to plead and prove that the deceased was a gratuitous passenger, which they have failed to do so. The relevant portion of para 105 of the apex Court judgment, supra reads as under:- "105.. (i). (ii).. (iii).. (iv) The insurance company are, however, with a view to avoid their liability, must not only establish the available defences raised in the said proceedings; but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them." 14. In FAO No. 169 of 2011 titled Shanti Devi v. National Insurance Company & others decided on 25.7.2014, along with connected matters, this Court also took the same view and held that the Insurer has to prove that deceased was travelling in the vehicle as a gratuitous passenger. 15. The apex Court in Manager National Insurance Co. Ltd. v. Saju P. Paul and another reported in 2013 AIR SCW 609 in para 16 has also laid down the same principles. 16. The same view has been taken by this Court in FAO No. 63 of 2012 titled Nand Lal and another v. Meena Devi and others decided on 22.8.2014, FAO No. 197 of 2012 titled United India Insurance Co. Ltd. v. Kamla Devi and others decided on 1.8.2014, FAO No. 273 of 2011 along with connected matters titled Oriental Insurance Company v. Veena Devi and others decided on 19th September, 2014, and FAO No. 343 of 2008 alongwith connected matters titled Sh. Rajeev Chauhan v. Sh. Hari Chand Bramta and others decided on 19th September, 2014. 17. The learned counsel for the appellant argued that at the time of the accident, insured/owner of the Truck Sh. Babu Ram was also travelling in the said vehicle as owner of the goods thus, the risk of representative of the owner of goods is not covered and has tried to carve out a case, in terms of the mandate of Section 147 (b) of the Motor Vehicles Act, for short "the Act". 18. Babu Ram was also travelling in the said vehicle as owner of the goods thus, the risk of representative of the owner of goods is not covered and has tried to carve out a case, in terms of the mandate of Section 147 (b) of the Motor Vehicles Act, for short "the Act". 18. The learned counsel for the appellant was asked to show whether he has taken such a ground in the reply filed before the Tribunal or in the memo of appeal, has failed to satisfy this Court. However, I have gone through the reply filed before the Tribunal to the claim petition. No such ground was taken in the reply before the Tribunal by the insurer. It had only resisted the claim petition on the ground that the deceased was travelling in the said vehicle as a gratuitous passenger, which it failed to prove. The said ground was not taken by the appellant before the Tribunal. Thus, the argument advanced is beyond pleadings, cannot be entertained. 19. The insurance policy Ext. RY is on the record. The sitting capacity of the vehicle is three and the risk of driver is also covered. The appellant-insurer has not led any evidence to prove that the risk of agent of the owner of the goods or insured/owner of the Truck was not covered, in terms of Insurance Policy Ext. RY. It was for the insurer to plead and prove that risk of representative of the goods or representative of the owner was not covered. This argument also merits to be turned down and is accordingly, turned down. 20. The insured has not committed any breach in terms of the mandate of Section 149 read with the terms and conditions of the Insurance Policy Ext. RY. Accordingly, issue No. 3 is decided in favour of the insured-owner and against the insurer. Thus, the findings returned by the Tribunal on this issue are upheld. 21. Issue No. 2. The insurer-appellant has not questioned the adequacy of the compensation. It appears that the discussion made by the Tribunal in paras 11 and 12 of the impugned judgment and award is legal one, needs no interference. The Tribunal held that the claimant has pleaded and proved that deceased was working as welder in the shop of Babu Ram, owner of the offending vehicle, earning Rs. It appears that the discussion made by the Tribunal in paras 11 and 12 of the impugned judgment and award is legal one, needs no interference. The Tribunal held that the claimant has pleaded and proved that deceased was working as welder in the shop of Babu Ram, owner of the offending vehicle, earning Rs. 4500/- per month and after deducting ?rd held that the claimant has lost source of dependency to the tune of Rs. 3000/- per month, accordingly applied the multiplier of "15" while keeping in view the age of the deceased read with Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another reported in AIR 2009 SC 3104 and upheld by a larger Bench of the apex Court in the case titled as Reshma Kumari and others v. Madan Mohan and another reported in 2013 AIR SCW 3120. 22. Thus, it cannot be said that the compensation awarded is excessive. 23. Having said so, the appeal merits dismissal and is accordingly dismissed and the impugned award is upheld. Send down the record forthwith after placing a copy of this judgment.