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Himachal Pradesh High Court · body

2015 DIGILAW 749 (HP)

National Insurance Company Ltd. v. Indira Devi

2015-06-23

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. CMP (M) No. 8/2015 Heard. In view of the grounds taken in the application, duly supported by an affidavit and in the interest of justice, delay in filing the appeal is condoned. The application stands disposed of. FAO No. 196/2015 2. This appeal is instituted against the award dated 5.7.2014 rendered by the Motor Accident Claims Tribunal-II, Sirmaur District at Nahan in MAC Petition No. 50-N/2 of 2009. 3. "Key facts" necessary for the adjudication of this appeal are that respondent No. 1 has filed a claim petition under section 166 of the Motor Vehicles Act seeking compensation after the death of her son in an accident, which took place on 12.8.2008. According to the averments contained in the petition, on 12.8.2008 deceased Anil Kumar was driving a motorcycle No. HP- 17-A-2251. He was coming to Puruwala from Bangran. When he was just 100 meters short of village Puruwala, truck bearing registration No. HP-16-7636 came from Puruwala side. It was being driven by respondent No.3 Balbeer Singh in a rash and negligent manner. The truck hit the motorcycle. Anil Kumar fell down on the road. He suffered head injury along with other multiple injuries on his body. He was brought to Civil Hospital, Paonta. He was declared dead. His postmortem was conducted. Anil Kumar was a very intelligent student and he was M.A. in history and at the time of accident he was selected for Ph.D. course. It is in these circumstances claimant sought compensation of Rs. Ten lakhs along with interest at the rate of 12% per annum. 4. The petition was contested by respondents No.2 and 3 by filing joint reply. According to them, no accident has taken place involving vehicle No.HP-17- 7636. A false and frivolous FIR has been registered against respondent No.3. The accident has taken place due to rash and negligent driving by the deceased. The vehicle was insured with the appellant. The appellant has filed separate reply. According to the reply filed by the appellant, the driver of the vehicle was not possessing a valid and effective driving licence. The vehicle was being plied in violation of terms and conditions of the insurance policy. False and frivolous FIR has been registered. 5. Issues were framed by the learned Motor Accident Claims Tribunal on 25.2.2010. The Motor Accident Claims Tribunal has awarded a sum of Rs. The vehicle was being plied in violation of terms and conditions of the insurance policy. False and frivolous FIR has been registered. 5. Issues were framed by the learned Motor Accident Claims Tribunal on 25.2.2010. The Motor Accident Claims Tribunal has awarded a sum of Rs. 9,32,000/- as compensation to respondent No.1 with interest @ 7.5% per annum. The appellant and respondents No. 2 and 3 were held vicariously liable to pay the amount of compensation. However, the amount of compensation was ordered to be indemnified by the appellant-insurance company. 6. Mr. Deepak Bhasin, learned counsel for the appellant has vehemently argued that the accident was caused due to rash and negligent driving of the deceased himself. He then contended that the driver was not holding a valid and effective driving licence. Correct multiplier has not been applied. 7. I have heard the learned counsel for the appellant and have gone through the impugned award. 8. Respondent No.1 has led her evidence by filing her affidavit Ex.PW-1/A. According to the averments contained in the affidavit, on 12.8.2008 when her son Anil Kumar was coming to village Puruwala from village on his motorcycle No. HP-17-A-2251, the motorcycle was hit by truck No. HP-17-7636 being driven by respondent No.3 in a rash and negligent manner. The deceased was studying in the University and his name was registered for Ph.D. 9. PW-5 Guman Singh has supported the case of respondent No.1 by filing affidavit Ex.PW-5/A. According to him, Anil Kumar died due to rash and negligent driving of truck No. HP-17-7636. PW-4 Jeet Ram has proved copy of FIR No. 288/08 Ex.PW-4/A. PW-6 Manoj Mittal has testified that FIR was registered against Balbeer Singh under sections 279 and 304-A of the Indian Penal Code and he was facing trial before the learned JMIC, Court No.1, Paonta. 10. RW-1 Balbeer Singh has led his evidence by filing his affidavit Ex.RW-1/A. According to him, no accident has taken place on 12.8.2008 at 3.45/4.00 P.M. A false FIR has been registered against him. The policy took into possession driving licence, RC, route permit, good tax and insurance policy vide seizure memo Ex.RW- 1/B. 11. 10. RW-1 Balbeer Singh has led his evidence by filing his affidavit Ex.RW-1/A. According to him, no accident has taken place on 12.8.2008 at 3.45/4.00 P.M. A false FIR has been registered against him. The policy took into possession driving licence, RC, route permit, good tax and insurance policy vide seizure memo Ex.RW- 1/B. 11. The copy of driving licence of respondent No.3 is Ex.RW-1/C and copy of insurance police is Ex.RW- 1/D. Respondent No.1 has conclusively proved that the accident has taken place due to rash and negligent driving by respondent No.3 of truck bearing No. HP-17- 7636. The death certificate is Ex.PW-3/A. According to the post-mortem Ex.PW-2/A, deceased died due to shock and cardio respiratory arrest due to left parietal skull compound fracture and antermal haemorrhage (left kidney). Respondent No.1 is 51 years of age. 12. Copy of insurance policy has been proved on record as Ex.PW-1/D. The vehicle in question was duly registered with the appellant. It was insured between 5.10.2007 to 4.10.2008. The accident has taken place on 12.8.2008. The driving licence is Ex.RW-1/C. The appellant has not led any evidence to prove that the driver of the offending vehicle was not having a valid and effective driving licence. It is settled law by now that the burden of proof that the driver was not holding a valid and effective driving licence is upon the insurance company and in the absence of any evidence on record the insurance company is liable to indemnify the amount of compensation. The deceased was 28 years old. The income of the deceased has rightly been assessed at the time of accident at Rs. 8,000/- per month. The annual income has been assessed at Rs. 72,000/- per annum. The multiplier of 11 has been applied taking into consideration the age of respondent No.1. She has been paid Rs. 1,00,000/- as loss of consortium, Rs. 25,000/- towards funeral expenses and Rs. 15,000/- under the head of loss to the estate. The Motor Accident Claims Tribunal has correctly awarded just and fair compensation in favour of respondent No.1 and there is no need to interfere with the impugned award. 13. Accordingly, there is no merit in the appeal and the same is dismissed. Pending applications, if any, also stands disposed of. No costs.