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2015 DIGILAW 813 (HP)

Shyam Lal v. Kewal Singh

2015-07-03

MANSOOR AHMAD MIR

body2015
Judgment Mansoor Ahmad Mir, Chief Justice (Oral) There is no representation on behalf of respondents No. 1 and 2, despite service. Hence, they are set exparte. 2. Challenge in this appeal is to the judgment and award, dated 28.09.2007, made by the Motor Accident Claims Tribunal-II, Una, District Una (H.P.) (for short "the Tribunal") in M.A.C. Petition No. 46 of 2003, titled as Kewal Singh versus Surjit Kumar and others, whereby compensation to the tune of Rs. 67,800/with interest @ 7.5% per annum from the date of the petition till its realization came to be awarded in favour of the claimant injured and the owner insured and the driver of the offending vehicle came to be saddled with liability (for short "the impugned award"). 3. The driver, the insurer and the claimant-injured has not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 4. Only the appellant owner insured, namely Shri Shyam Lal, has questioned the impugned award on the ground that the Tribunal has fallen in an error while exonerating the insurer and saddling him with liability. 5. Thus, the only question to be determined in this appeal is whether the Tribunal has fallen in an error in exonerating the insurer and saddling the owner insured with liability? The answer is in the negative for the following reasons: 6. The claimant-injured is the victim of a vehicular accident, which was caused by the driver, namely Shri Surjit Kumar, while driving tanker, bearing registration No. PB12 C1205, rashly and negligently, on 15.10.1998 near place Kala Kund at Gwal Thai, in which four persons died and five persons sustained injuries. 7. I have gone through the impugned award and the record. The offending vehicle, i.e. tanker, is a goods vehicle and as per the insurance policy, Ext. RW1/A, risk of 2+1' is covered, i.e. the risk of two drivers and one cleaner is covered. 8. It is admitted by the appellant owner insured that the insurer has satisfied the claim of at least two persons and as per the insurance policy, Ext. RW1/A, the liability of the insurer is 2+1'. 9. The claimant injured in para 22 of the claim petition has himself averred that he has boarded the offending vehicle, i.e. the tanker, at the relevant point of time. RW1/A, the liability of the insurer is 2+1'. 9. The claimant injured in para 22 of the claim petition has himself averred that he has boarded the offending vehicle, i.e. the tanker, at the relevant point of time. It is nowhere pleaded that he was travelling in the vehicle as driver or conductor. It is apt to reproduce relevant portion of para 22 of the claim petition herein: "That on the fateful day the applicant boarded the tanker at Bhakra and was coming towards Nangal. The driver of the vehicle was no rash and negligent that he lost the control of the vehicle on the down steep near Gwal Thai at a place near Kala Kund and the vehicle fell down deep causing death of two persons and serious injuries to some persons including present applicant. The accident is directly attributed to the rash and negligent driving of driver of the tanker." 10. In the given circumstances, one comes to an inescapable conclusion that the claimant injured was travelling in the offending vehicle, at the relevant point of time, neither in the capacity of the driver nor the cleaner, thus, was a gratuitous passenger. 11. The Tribunal has rightly made discussions in paras 21 to 23 of the impugned award and has came to the conclusion that the claimant injured was travelling in the offending vehicle as a gratuitous passenger and the owner insured has committed the breach of the terms and conditions of the insurance policy. 12. Having said so, the impugned award needs no interference. 13. Viewed thus, the appeal merits to be dismissed and the impugned award is to be upheld. Accordingly, the impugned award is upheld and the appeal is dismissed. 14. Registry is directed to release the awarded amount in favour of the claimant injured strictly as per the terms and conditions contained in the impugned award through payee's account cheque. 15. Send down the record after placing copy of the judgment on Tribunal's file.