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2016 DIGILAW 1021 (HP)

National Insurance Co. Ltd. v. Tek Chand

2016-06-03

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, Chief Justice, (Oral) This appeal is directed against the judgment and award dated 24.5.2010, made by the Motor Accident Claims Tribunal, Mandi, H.P. in Claim Petition No. 16/2002/116 of 2005, titled Sh. Tek Chand versus Sh. Hemant Kumar and others, for short “the Tribunal”, whereby compensation to the tune of Rs.54,762/- alongwith interest @ 9% per annum came to be granted in favour of the claimant, and insurer came to be saddled with the liability, hereinafter referred to as “the impugned award”, for short. 2. Insured, claimant and driver have not questioned the impugned award on any ground. Thus, the same has attained the finality so far as it relates to them. 3. The insurer has questioned the impugned award on the grounds taken in the memo of appeal. 4. Learned counsel for the appellant argued that the claimant has failed to prove the rash and negligent driving of the driver, namely, Dinesh Kumar and that the owner has committed willful breach. The argument is devoid of any force, for the following reasons. 5. Respondents resisted the claim petition and following issues came to be framed. (i) Whether the petitioner suffered injuries as a result of rash and negligent driving of driver of truck No. HP-49-2221?OPP (ii) Whether the vehicle in question was being driven in contravention of the terms and conditions of the insurance police and without a valid driving licence? OPD-3. (iii) To what amount and from whom the petitioner is entitled? OPP. (iv) Relief. 6. Parties have led evidence. 7. Claimant examined three witnesses, namely Tek Chand (PW1), Shyam Lal (PW2) and Dr. Sanjeev Raj Kapoor (PW3). 8. Respondents have not led any evidence. Thus, the evidence led by the claimant has remained unrebutted. 9. The claimant has also placed on record documents, the description of which are given at page 8 of impugned award. 10. The claimant has specifically pleaded in the claim petition that respondent No.2 Dinesh kumar was driving the offending vehicle, i.e., Truck No. HP-49-2221 on 17.3.2001 at about 9.30 P.M. at village Gulel and caused the accident. The deceased suffered injuries and succumbed to the same. PW2 Shyam Lal deposed that the accident was outcome of rash and negligent driving of the driver Dinesh Kumar and the findings returned by the Tribunal to that effect have not been questioned by the driver. The deceased suffered injuries and succumbed to the same. PW2 Shyam Lal deposed that the accident was outcome of rash and negligent driving of the driver Dinesh Kumar and the findings returned by the Tribunal to that effect have not been questioned by the driver. The FIR was lodged against the driver which is a prima facie proof in favour of issue No.1. 11. The driver and owner have filed the reply and admitted the accident and cause of death of the deceased but have stated that the accident occurred due to sudden mechanical defect. 12. It was for respondents No. 1 and 2 to dislodge the evidence of the claimant and prove that the accident was outcome of some mechanical defect in the vehicle, failed to lead any evidence. In fact, driver and owner have admitted the cause of the death of the deceased. They have even not questioned the said findings, have attained the finality. It was for the insurer to prove issue No.3, has not led any evidence. Thus, the findings returned on issue No. 3 are upheld. 13. Having said so, no interference is required. The impugned award is upheld and the appeal is dismissed, alongwith pending applications, if any. 14. Send down the record forthwith, after placing a copy of this judgment.