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Himachal Pradesh High Court · body

2016 DIGILAW 1017 (HP)

Prem Singh v. Bimla Devi

2016-06-03

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Both these appeals are outcome of judgment and award, dated 13th February, 2004, made by the Motor Accident Claims Tribunal, Una, Himachal Pradesh (for short "the Tribunal") in MAC Petition No. 29 of 1999, titled as Smt. Bimla Devi versus Surinder Kumar and others, whereby compensation to the tune of 2,45,400/- with interest @ 9% per annum from the date of filing of the claim petition till its realization came to be awarded in favour of the claimant and the insurer was directed to satisfy the award with a right of recovery (for short “the impugned award”). 2. The insurer and the claimant have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. The appellants in both the appeals, i.e. the driver and the owners-insured of the offending vehicle, have questioned the impugned award on the ground that the Tribunal has fallen in an error in granting right of recovery to the insurer. 4. Thus, the only question to be determined in both these appeals is – whether the Tribunal has rightly recorded the findings viz-a-viz issues No. 3 to 5? The answer is in the negative for the following reasons: 5. The claimant invoked the jurisdiction of the Tribunal for grant of compensation, as per the breakups given in the claim petition on the ground that she became the victim of the motor vehicular accident, which was caused by the driver, namely Surinder Kumar, while driving tractor trolley, bearing registration No. PB160466, rashly and negligently, on 10th September, 1998, at about 2.30 P.M. at Village Raisari, Tehsil and District Una, in which Tilak Raj sustained injuries and succumbed to the injuries. 6. The respondents in the claim petition resisted the claim petition on the grounds taken in the respective memo of the objections. 7. Following issues came to be framed by the Tribunal on 17th March, 2003: “1. Whether the death of Tilak Raj took place due to rash and negligent driving of tractor No. PB16466 by respondent Surinder Kumar? OPP 2. In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and against whom? OPP 3. Whether this Court has no jurisdiction to try the petition, as alleged? OPR 4. OPP 2. In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and against whom? OPP 3. Whether this Court has no jurisdiction to try the petition, as alleged? OPR 4. Whether the driver of the tractor was not holding a valid and effective driving licence at the relevant time, if so, its effect? OPR3 5. Whether the respondent Insurance Company is not liable to indemnify the owner/insurer as alleged? OPR3 6. Relief.” 8. Parties have led evidence. Issues No. 1 and 2: 9. The Tribunal after scanning the evidence, oral as well as documentary, has rightly held that the accident has taken place due to the rash and negligent driving of offending vehicle by its driver. Even otherwise, the findings returned by the Tribunal on issues No. 1 and 2 have not been questioned, thus, the same are accordingly upheld. Issue No. 3: 10. Admittedly, the accident has taken place due to the use of the motor vehicle at Village Raisari, Tehsil and District Una and the claimant is also the resident of the said area. Thus, the Tribunal has the jurisdiction to try the claim petition. Accordingly, the findings returned by the Tribunal on issue No. 3 are upheld. Issues No. 4 and 5: 11. Both these issues are to be determined together being interlinked and interdependent. 12. It was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence at the relevant point of time. The insurer has not led any evidence to prove that the driver of the offending vehicle was not having a valid and effective driving licence to drive the offending vehicle at the time of the accident. The insurer has not even made an effort to ask the legal representatives of the deceased driver to place on record the driving licence or to examine any official from the office of the Registering and Licensing Authority, thus, has failed to prove the same. 13. The factum of insurance is not in dispute. Even otherwise, the insurance policy, Ext. RX, is on the file, which does disclose that the offending vehicle was insured at the relevant point of time. 14. 13. The factum of insurance is not in dispute. Even otherwise, the insurance policy, Ext. RX, is on the file, which does disclose that the offending vehicle was insured at the relevant point of time. 14. In the given circumstances, it cannot be said that the owner-insured has committed willful breach of the terms and conditions of the insurance policy. 15. Viewed thus, the Tribunal has fallen in an error in discharging the insurer. Accordingly, the findings returned by the Tribunal on issues No. 4 and 5 are set aside and the insurer is saddled with liability. 16. At this stage, learned counsel for the insurer stated at the Bar that the awarded amount has already been deposited before the Tribunal. Mr. Jagdish Thakur, learned counsel for the claimant, also stated at the Bar that his client has already received the awarded amount. Their statements are taken on record. 17. Having said so, the impugned award is modified, as indicated hereinabove and the appeals are allowed. 18. Send down the record after placing copy of the judgment on Tribunal's file.