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2015 DIGILAW 685 (HP)

Savitra Devi v. Jaiwanti Devi

2015-06-05

MANSOOR AHMAD MIR

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Judgment Mansoor Ahmad Mir, J. CMP (M) No. 532 of 2015 The appellants have moved this application for bringing on record the legal representatives of respondent No. 1, who has died during the pendency of this appeal. 2. It is a beaten law of land that the limitation period is not applicable to the claimants for filing claim petition in view of the amendment made in 1994 in the Motor Vehicles Act, 1988, whereby provisions of sub Section (3) of Section 166 of the Act came to be deleted. 3. Having said so, I deem it proper to grant this application. The legal representatives of deceased respondent No. 1 are ordered to be brought on record as party respondents in the claim petition and shall figure as respondents No. 1(i) to 1(vii). The Registry to carry out necessary corrections in the cause title. Learned Counsel for the appellants to file amended memo of parties. The application is disposed of. FAO No. 359 of 2007 4. Heard. 5. Appellants-insured-owner and driver have questioned the award, dated 21st June, 2007, made by the Motor Accident Claims Tribunal-II, (Fast Track), Kullu, H.P. (hereinafter referred to as “the Tribunal”) in Claim Petition No. 17/05, whereby compensation to the tune of Rs.2,26,800/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization, came to be awarded in favour of the claimants-respondents No. 1 & 2 herein and against the appellants-driver and owner-insured (for short, the “impugned award”), on the grounds taken in the memo of appeal. 6. The claimants and the insurer have not questioned the impugned award, on any count. Thus, it has attained finality, so far as it relates to them. 7. The owner-insured and driver have questioned the impugned award on the ground that the Tribunal has fallen in error in granting right of recovery to the insurer. 8. Thus, the only question to be determined in this appeal is - whether the Tribunal has rightly granted right of recovery to the insurer. The answer is in the affirmative for the following reasons: 9. The claimants in para-10 of the claim petition have specifically pleaded that deceased Bimla Devi was traveling in vehicle-Jeep bearing registration No. HP-66-0617 alongwith apple plants. But it is not pleaded whether she had hired the vehicle and what was the fare paid. The answer is in the affirmative for the following reasons: 9. The claimants in para-10 of the claim petition have specifically pleaded that deceased Bimla Devi was traveling in vehicle-Jeep bearing registration No. HP-66-0617 alongwith apple plants. But it is not pleaded whether she had hired the vehicle and what was the fare paid. The appellants-driver and owner have not denied the same, but stated that ‘para-10 of the claim petition needs no reply’. Thus, it is an evasive denial. 10. The insurer has taken a specific plea that the deceased was traveling in the offending vehicle as a gratuitous passenger. The Tribunal, in paras 25 to 27 of the impugned award, has discussed and held that the deceased was not traveling in the offending vehicle as owner of apple plants and no apple plants were seized on the spot. Thus, the driver and owner have failed to prove that the deceased was traveling in the offending vehicle as a owner of apple plants and was not a gratuitous passenger. 11. Having said so, the Tribunal has rightly made discussion in paras 25 to 27 of the impugned award and accordingly, it is held that the insurer has right of recovery. 12. Though, the amount awarded is meager, but the claimants have not questioned the same, is maintained. 13. Accordingly, the appeal is dismissed. 14. The Registry is directed to release the award amount in favour of claimants, strictly as per the terms and conditions, contained in the impugned award. 15. Send down the records after placing a copy of the judgment on the file of the claim petition.