Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 996 (HP)

Vijay Singh v. Sunil Kumar

2015-07-31

MANSOOR AHMAD MIR

body2015
JUDGMENT Mansoor Ahmad Mir, J. 1. This appeal is directed against the award, dated 22nd May, 2013, made by the Motor Accidents Claims Tribunal, Hamirpur, H.P. (hereinafter referred to as “the Tribunal”) in M.A.C. Petition No. 12 of 2010, titled Sunil Kumar versus Vijay Singh & others whereby compensation to the tune of Rs. 5,45,200/- with interest @ 7.5% per annum from the date of filing of the claim petition till its realization, came to be awarded in favour of the claimant-respondent No.1 herein and owner and driver-appellants herein were saddled with liability (for short, “the impugned award”). 2. The claimant and insurer have not questioned the impugned award, on any count. Thus, it has attained finality, so far as it relates to them. 3. The owner and driver have questioned the impugned award on the ground that the Tribunal has fallen in an error in exonerating the insurer from liability and saddling them with the liability. 4. It is necessary to give a brief summary of the case, the womb of which has given birth to the present appeal. 5. Sunil Kumar, claimant had invoked jurisdiction of the Tribunal, in terms of the mandate of Section 166 of the Motor Vehicles Act, 1988, for short “the Act” for grant of compensation to the tune of Rs. 25,00,000/- as per the break-ups given in the claim petition, on the ground that driver, namely, Dalip Singh, had driven the vehicle-Bolero Pick Up bearing registration No. HP-17A-9191, rashly and negligently, on 24th January, 2009, at about 9.30 a.m., at Village Pawari, P.O. Shiri Kiyari, Tehsil Shillai, District Sirmour (HP), caused the accident, as a result of which, he sustained injuries and became permanently disabled. 6. The claimant averred in the claim petition that he is a Motor Mechanic by profession and is running a shop at Shillai, District Sirmour. On the aforesaid date, he was requested by driver, Dalip Singh to accompany him in order to repair the offending vehicle. He had gone with him on the spot and made repairs of the offending vehicle. He came in the said vehicle, was met with an accident, which was caused by driver Dalip Singh. He sustained injuries on his head and various multiple injuries on other parts of the body. He was taken to Community Health Centre, Shillai, from where he was referred to P.G.I., Chandigarh. He came in the said vehicle, was met with an accident, which was caused by driver Dalip Singh. He sustained injuries on his head and various multiple injuries on other parts of the body. He was taken to Community Health Centre, Shillai, from where he was referred to P.G.I., Chandigarh. He was admitted in Indus Hospital Mohali from 26th January, 2009 to 12th February, 2009. Thereafter, he was under regular medical treatment and spent about Rs. 2,48,467/- on his treatment. 7. The owner and driver contested the claim petition by filing joint reply. In their reply, they have admitted the accident, but submitted that since the vehicle was insured with the Insurance Company, it was liable to satisfy the award. 8. The insurer also resisted the claim petition by filing reply. 9. Following issues came to be framed by the Tribunal: “1. Whether the petitioner has suffered injuries due to use/rash and negligent driving of Bolero Pick Up No. HP-17A- 9191 by its driver-respondent No. 2, as alleged? OPP. 2. If issue No. 1 is proved in affirmative, whether the petitioner/claimant is entitled to compensation, if so, to what amount and from which of the respondents? OPP. 3. Whether the vehicle in question was being plied at the time of accident without valid registration and fitness certificate, as alleged? OPR-3. 4. Whether the petitioner was traveling in the vehicle in question as a gratuitous passenger, if so, its effect? OPR-3. 5. Whether respondent No. 2 was not having valid and effective driving licence to drive the motor vehicle in question at the time of accident, as alleged? OPR-3. 6. Relief.” 10. The parties led evidence and tendered in evidence the documents, mention of which has been given in the List of Exhibits attached with the impugned award. 11. The Tribunal after scanning the entire evidence passed the impugned award, whereby the claimant was held entitled to compensation to the tune of Rs. 5,45,200/- with interest @7.5% per annum from the date of the claim petition till its realization and the owner and driver were saddled with liability. Issue No. 1. 12. The claimants have proved by leading evidence that driver, namely, Dalip Kumar, had driven the vehicle-Bolero Pick Up bearing registration No. HP-17A- 9191, rashly and negligently, on 24th January, 2009, at about 9.30 a.m., at Village Pawari, P.O. Shiri Kiyari, Tehsil Shillai, District Sirmour (HP) and caused the accident. Issue No. 1. 12. The claimants have proved by leading evidence that driver, namely, Dalip Kumar, had driven the vehicle-Bolero Pick Up bearing registration No. HP-17A- 9191, rashly and negligently, on 24th January, 2009, at about 9.30 a.m., at Village Pawari, P.O. Shiri Kiyari, Tehsil Shillai, District Sirmour (HP) and caused the accident. The Tribunal has also recorded findings to that extent. These findings have not been questioned by any of the parties. Accordingly, the findings returned by the Tribunal on Issue No. 1 are upheld. 13. Issues No. 2 to 5 are inter-linked. Before dealing with Issues No. 2 & 4, I deem it proper to deal with issues No. 3 & 5. Issue No. 3. 14. It was for the insurer to prove that the offending vehicle was being driven without valid documents, i.e. registration and fitness certificate, but it has failed to do so. This issue was decided by the Tribunal against the insurer. Accordingly, the findings returned by the Tribunal on Issue No. 3 are upheld. Issue No. 5. 15. The insurer has failed to prove that the driver was not having a valid and effective driving licence to drive the offending vehicle at the relevant time. The findings returned by the Tribunal on this issue are not in dispute. Accordingly, the findings on Issue No. 5 are upheld. Issue Issues No. 2 & 4. 16. Both these issues are inter-linked. Therefore, I deem it proper to determine both the issues together. 17. The Tribunal has held that the claimant was traveling in the offending vehicle as a gratuitous passenger. The said finding of the Tribunal is not legally correct for the following reasons. 18. The claimant was a Mechanic by profession. On the day of accident, he was requested by driver Dalip Singh to accompany him and to repair the offending vehicle, which he did. After repairing the same, while coming back to his workshop, the vehicle met with an accident, which was caused by the driver. 19. The appellants made an application under Order 6 Rule 17 of the Code of Civil Procedure for leave to amend the reply, which was not resisted by the claimant and the insurer. The application was allowed in terms of the order dated 15th May, 2015. 20. 19. The appellants made an application under Order 6 Rule 17 of the Code of Civil Procedure for leave to amend the reply, which was not resisted by the claimant and the insurer. The application was allowed in terms of the order dated 15th May, 2015. 20. The learned Counsel for the claimant and insurer also made statements to the effect that they are under instructions not to file response to the amended reply and lead any evidence. Thus, their right to file response to the amended reply and adduce the evidence was closed in terms of the order, supra. 21. The appellants-owner and driver have specifically averred in their reply that the contents of paras 4 & 5 are admitted. 22. The owner and driver have also admitted the contents of para-22 of the claim petition. It is apt to reproduce the relevant portion of para 22 of the reply herein: “22. The contents of this para are admitted only to the extent that on 24-1-2009 at the request of the respondent no-2 the petitioner/mechanic visited the spot to repair the said vehicle and the petitioner did repair the same and sit in the said vehicle to check as to whether the vehicle was fit to run etc. The said vehicle was being driven by the Respondent No-2, but after going a few KM away, while getting the said vehicle back in order to give pass to the coming bus the brake of the vehicle did not worked and vehicle did not stop, but the driver jumped out of the vehicle and the said vehicle went out of the road, unfortunately, the petitioner went with the vehicle and got injured. Rest of the contents of this para (save and except specifically admitted) are wrong hence denied.” 23. Viewed thus, it cannot be said that the injured was traveling in the offending vehicle as a gratuitous passenger. He had gone to repair the offending vehicle at the request made by the driver and was coming back in the same vehicle. 24. Having said so, the impugned award is modified by holding that the insurer has to satisfy the award for the reason that the claimant was a third party, was not a gratuitous passenger and the risk was covered in terms of the insurance policy. 25. The quantum of compensation is not in dispute. 26. 24. Having said so, the impugned award is modified by holding that the insurer has to satisfy the award for the reason that the claimant was a third party, was not a gratuitous passenger and the risk was covered in terms of the insurance policy. 25. The quantum of compensation is not in dispute. 26. The insurer is directed to deposit the award amount with interest, within eight weeks from today before the Registry. On deposition, the Registry is directed to release the amount, in favour of the claimant, strictly as per the terms and conditions contained in the impugned award. The amount, if any deposited by the owner and driver, be refunded to them. 27. Accordingly, the impugned award is modified, as indicated above and the appeal is disposed of. 28. Send down the records after placing a copy of the judgment on the Tribunal's file.