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2015 DIGILAW 942 (HP)

Oriental Insurance Company v. Vikrant Kumar

2015-07-24

MANSOOR AHMAD MIR

body2015
JUDGMENT Mansoor Ahmad Mir, J. The insurer, by the medium of this appeal, has questioned the judgment and award made by the Motor Accident Claims Tribunal, Bilaspur, hereinafter referred to as “the Tribunal” in MAC No.17 of 2005, titled Vikrant Kumar versus Salinder and others, whereby compensation to the tune of Rs.82,660/- alongwith 6% interest per annum came to be awarded in favour of the claimant and insurer came to be saddled with the liability, for short “the impugned award”, on the grounds taken in the memo of appeal. 2. Driver, owner and claimants have not questioned the impugned award on any ground thus, it has attained finality so far as it relates to them. 3. The learned senior counsel for the appellant argued that the claim petition is after thought and no FIR was lodged and came to be lodged as per the order made by the Judicial Magistrate concerned. 4. A meager amount has been awarded, so I believe that the insurance company should not have questioned the same. The arguments advanced by the learned senior counsel for the appellant, though attractive, are without any force, for the following reasons. 5. It appears that claimant Vikrant Kumar filed claim petition before the Tribunal for the grant of compensation, as per the break-ups given in the claim petition. The same was resisted by the owner, driver and insurer and following issues came to be framed. (i) Whether the petitioner sustained injuries on account of rash and negligent driving of respondent No.2 Ram Chand alias Mimi driver of Bus No. HP-24-3401? OPP. (ii) If issue No. 1 is supra is proved, to what amount of compensation the petitioner is entitled to and from which of the respondents? OPP (iii) Whether the respondent No. 2 driver of Bus No. HP-24-3401 was not holding a valid and effective driving license at the time of accident, if so, its effect? OPR-3. (iv) Whether the petition is bad for non-joinder of necessary parties? OPR-3. (v) Whether the vehicle in question was plying on the road in contrary to the provisions of MV Act, as alleged OPR-3. (vi) Whether the accident is result of contributory negligence of respondent No. 2 and petitioner? OPR-3. (vii) Relief. 6. Claimant examined Surender Kumar (PW2), Chengu Ram (PW3), Dr. Mukand Lal (PW4) and himself appeared as PW1 in the witness-box. 7. (vi) Whether the accident is result of contributory negligence of respondent No. 2 and petitioner? OPR-3. (vii) Relief. 6. Claimant examined Surender Kumar (PW2), Chengu Ram (PW3), Dr. Mukand Lal (PW4) and himself appeared as PW1 in the witness-box. 7. Driver and owner examined Kumari Gayatri Sharma, (RW1) Dr. Amarjeet Singh (RW2), Ram Chand (RW3) and HHC Nasib Khan (RW-4). 8. The claimant also placed on record medical bills Ext. P1 to P40, copy of FIR Ext. PW2/A, Taxi Bill Ext. PW2/B, cash memo Ext. PW2/C and disability certificate Ext. PW4/A. The respondents have also produced on record documents, mention of which is made at Form-A appended to the impugned award. 9. The Tribunal, after scanning the evidence, held that the claimant has proved that the bus driver has driven the offending vehicle rashly and negligently and caused the accident, in which the claimant has sustained injuries. 10. The insurer/respondent No 3 before the Tribunal, has filed the reply. It is apt to reproduce para 5 of the reply on preliminary objections herein. “5. The accident is result of contributory negligence of respondent No. 2 and the driver of motor cycle involved in the accident as such the answering respondent is not liable for any compensation.” 11. The driver and owner have also filed the reply. It is apt to reproduce para 13 of the reply herein. “13. Para No. 24 of the petition is wrong hence denied. No accident took place due to the rash and negligent driving of respondent No.2. Actually, the motor cycle was being driven by the petitioner himself alongwith two pillion riders and the petitioner struck the motor cycle against the vehicle/bus of the respondents and on the spot the petitioner made apology and requested the respondents not to register any case against the motor cycle driver but later on the petitioner filed this false petition. The accident has taken place due to the sole negligent driving of the petitioner himself, therefore, he is not entitled for any compensation. The petitioner has o income. If the petitioner is held entitled to any compensation then the same may be recovered from respondent No. 3 or from the insurer of the motor cycle.” 12. The accident has taken place due to the sole negligent driving of the petitioner himself, therefore, he is not entitled for any compensation. The petitioner has o income. If the petitioner is held entitled to any compensation then the same may be recovered from respondent No. 3 or from the insurer of the motor cycle.” 12. While going through the averments contained in the claim petition as well as the reply filed by the respondents before the Tribunal, one comes to an inescapable conclusion that the accident was outcome of rash and negligent driving of the driver of the offending bus. 13. The owner and driver have not questioned the impugned award, thus, the findings returned on issue No. 1 are upheld. 14. Issue No. 6 is governed by the findings returned on Issue No. 1, merits to be upheld. The findings returned on this issue are required to be upheld for the other reasons that it was for the insurer to prove the same, has not led any evidence, thus failed to discharge the onus. Accordingly, findings returned on this issue are upheld. 15. A meager amount of Rs.82,660/- has been awarded by the Tribunal. The claimant has placed on record the documents, which do disclose that he has spent the said amount and cannot be said to be excessive in any way. 16. Having said so, no interference is required. Accordingly, the appeal is dismissed. 17. The Registry is directed to release the amount in favour of the claimant, strictly in terms of the conditions contained in the impugned award, through payees’ cheque account. 18. Send down the record forthwith, after placing a copy of this judgment.