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2016 DIGILAW 1030 (HP)

Sarvan Kumar v. Asha Kumari

2016-06-03

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, Chief Justice Subject matter of this appeal is the award, dated 8th July, 2010, passed by the Motor Accident Claims Tribunal(II), Kangra at Dharamshala, H.P., (for short, the Tribunal), in Claim Petition No.12-P/2006, titled Asha Kumari and others vs. Sanik Bus Service and others, whereby the claim petition was allowed and compensation to the tune of Rs.6,60,800/-, with interest at the rate of 7% from the date of filing of the petition till realization, came to be awarded in favour of the claimants and original respondents No.3 i.e. insurer of the bus and original respondents No.4 & 5 i.e. the owner and the driver of Maruti Van, came to be saddled with the liability in the ratio of 50 : 50, (for short, the impugned award). 2. The claimants, the driver of the Maruti Van, the driver of the bus, the owner/insured of the bus and the insurers of both the offending vehicles, have not questioned the impugned award on any count, thus, the same has attained finality so far as it relates to them. 3. Feeling aggrieved and dissatisfied, the appellant i.e. the owner of the Maruti Van has questioned the impugned award on the ground that the Tribunal has wrongly saddled him with 50% liability, rather the insurer had to be saddled. 4. Thus, the only question needs to be determined in this appeal is – Whether the Tribunal has rightly saddled the owner of the Maruti Van/appellant with the liability? 5. In order to answer the said question, a brief reference may be made to the facts of the case. 6. Claimants, being the wife, daughters and son of deceased Ashok Kumar, filed the Claim Petition under Section 166 of the Motor Vehicles Act, 1988, (for short, the Act) before the Tribunal for grant of compensation to the tune of Rs.15.00 lacs, as per the break-ups given in the claim petition. It was averred in the claim petition that on 19th August, 2005, the deceased Ashok Kumar was on his way to his village Darang in Maruti Van bearing No.HP-39-1748, being driven by its driver, namely, Trilok Chand, and at about 5.40 P.M., when the said Van reached near Nalti, had a head on collision with bus bearing No.HP-37-3149, being driven by its driver, namely, Sansar Chand, as a result of which Ashok Kumar sustained multiple injuries and consequently died. It was specifically averred in the claim petition that both the offending vehicles were being driven rashly and negligently due to which the accident had occurred. An FIR bearing No.220/05 was registered at Police Station, Palampur. On such averments, the claimants filed the claim petition. 7. The respondents resisted the claim petition by filing replies. 8. On the pleadings of the parties, the following issues came to be settled: “1. Whether the death of the deceased was caused by the respondents No.2 and 5 by striking the offending vehicles HP-39-1748 and HP-39-3149 against each other on 19.8.05 near Nalti Bridge Fared? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to being legal heirs of the deceased and from whom? OPP. 3. Whether the petition is not maintainable in the present form, as alleged? OPR-1,2,4 and 5. 4. Whether the petition is bad for mis-joinder of necessary parties? OPR-4 and 5. 5. Whether the accident had been committed by respondent No.2 by striking the bus against the Maruti Van HP-39-1748 being driven by respondents No.5? If so, its effect? OPR-4 and 5. 6. Whether the respondent No.2 was not holding valid and effective driving licence to drive the vehicle as alleged and the respondents 1 and 2 had thus violated the terms and conditions of the insurance policy, as alleged? If so, its effect? OPR-3. 7. Whether the petition is collusive in between the petitioners and the respondents 1, 2, 4 and 5 as alleged? OPR-3. 8. Whether the respondents 1 and 2 were plying the offending vehicle NO.HP-37-3149 without fitness of registration certificate, route permit and violated the terms and conditions of the insurance policy, as alleged? OPR-3 9. Whether the respondent No.5 was not having valid and effective driving licence to drive the offending vehicle HP-39-1748 as alleged? If so, its effect? OPR-6 10. Whether the petition is collusive in between the petitioners and respondents 1, 2, 4 and 5, as alleged? If so, its effect? OPR-6 11. Whether the offending vehicle HP-39-1748 was not insured with respt. No.6 and, therefore, the petition is not maintainable against it? If so, its effect? OPR-6 12. Whether the offending vehicle HP-39-1748 was being plied without valid and proper documents and the deceased was traveling in this vehicle as a gratuitous passenger? If so, its effect? OPR-6. 13. Relief.” 9. Whether the offending vehicle HP-39-1748 was not insured with respt. No.6 and, therefore, the petition is not maintainable against it? If so, its effect? OPR-6 12. Whether the offending vehicle HP-39-1748 was being plied without valid and proper documents and the deceased was traveling in this vehicle as a gratuitous passenger? If so, its effect? OPR-6. 13. Relief.” 9. In order to prove their case, the claimants examined PW-1 Dr.Veena Sharma, PW-2 LHC Avnesh Kumar, PW-3 Asha Kumari (Claimant No.1), PW-4 Suresh Kumar and PW-5 Jitender Kumar. On the other hand, respondents in the claim petition also examined as many as five witnesses, namely, RW-1 Sansar Chand (driver of the offending bus), RW-2 Hukam Singh, RW-3 Garib Singh (owner of the offending bus), RW-4 Suresh Kumar and RW-5 Sarvan Kumar (owner of the offending Van). 10. The Tribunal, after examining the pleadings of the parties and the evidence, held that the accident had occurred due to the rash and negligent driving of the drivers of both the offending vehicles (bus and Van). It was held by the Tribunal that the driver of the offending bus was having a valid and effective driving licence and that the driver of the offending Van, namely, Trilok Chand, was not having a valid and effective driving licence, at the time of accident, and since the accident was the outcome of contributory negligence, therefore, the insurer of the offending bus and the owner and the driver of the offending Van were saddled by the Tribunal with the liability in the ratio of 50 : 50. 11. Learned counsel for the appellant/insured argued that the Tribunal has fallen into an error in holding that the driver of the offending Van was not having a valid and effective driving licence at the time of accident. The insured had specifically pleaded in the reply filed to the claim petition that the driver of the offending Van was having a valid and effective driving licence and also placed on record, alongwith the reply, a copy of the driving licence. Thus, it was submitted that it was for the insurer to plead and prove, by leading evidence, that the driver was not having a valid and effective driving licence. Thus, it was submitted that it was for the insurer to plead and prove, by leading evidence, that the driver was not having a valid and effective driving licence. It was further submitted that in the absence of any evidence led by the insurer to that effect, it can safely be concluded that the insurer has not discharged the onus cast upon it and therefore, the impugned award suffers from material illegality and is required to be set aside to that effect. 12. I have heard the learned counsel for the parties and have gone through the record. 13. The claimants in the claim petition have specifically pleaded that the accident had occurred as a result of contributory negligence on the part of the drivers of the offending vehicles. After referring to the pleadings of the parties and also to the statements of the witnesses, the Tribunal has rightly concluded in paragraph 13 of the impugned award that the accident was the outcome of contributory negligence and insurer of the offending bus rightly came to be saddled with the liability to the extent of 50%. 14. The driver and the owner of the offending Van filed joint reply to the claim petition, in which, in paragraph 15, they have specifically pleaded that the offending Van was duly insured. They also attached alongwith the reply copies of the registration certificate, driving licence and insurance policy. It is apt to reproduce paragraph 15 of the reply hereunder: “Para 15 of the petition, it is submitted that van No.HP-39-1748 was insured with the Oriental Insurance Co. Ltd., vide police No.263201/2005/5165 w.e.f. 17-3-2005 to 16-3-2006. The copy of R.C., D.L. and insurance policy are annexed herewith.” 15. Once the owner/appellant had specifically pleaded in the reply and also placed on record a copy of the Driving Licence of the driver of the offending Van, namely, Trilok Chand, it was for the insurer i.e. Oriental Insurance Company Ltd. to plead and prove that the driver was not having a valid and effective driving licence at the time of accident, has not led any evidence to that effect. 16. The learned counsel for the insurer was not able to point out from the record that the insurer had taken steps to prove that the driver of the offending Van was not having a valid and effective driving licence at the time of accident. 17. 16. The learned counsel for the insurer was not able to point out from the record that the insurer had taken steps to prove that the driver of the offending Van was not having a valid and effective driving licence at the time of accident. 17. Apart from it, the insurer was also required to plead and prove that the insured/owner had committed willful breach, in which also it has failed. 18. A perusal of the record shows that in regard to the accident, FIR Ext.PW-2/A was registered in Police Station, Palampur against the drivers of both the offending vehicles. However, there is no murmur in the FIR that the driver of the offending Van was not having a valid and effective driving licence. Had it been so, the driver of the offending Van would have been booked for commission of offence punishable under the Motor Vehicles Act, 1988. 19. For the reasons enumerated hereinabove, it can safely be concluded that the insurer has failed to plead and prove that the driver of the offending Van was not having a valid and effective driving licence and that the owner/appellant had committed any willful breach. Accordingly, the findings returned by the Tribunal on issue No.9 are set aside. 20. As far as issue No.11 is concerned, the factum of insurance is admitted. Still, this issue was decided in favour of the insurer by holding that the insurer was not liable to compensate the owner. The insurance policy of the offending Van has been placed on record as Ext.RX, which does disclose that the seating capacity of the said Van has been mentioned as four persons, meaning thereby that the risk of four persons was covered. It was never the case of the insurer that the number of passengers traveling in the offending Van was exceeding the permitted limit and, therefore, the deceased can be termed as a gratuitous passenger. The claimants, in the claim petition, have specifically pleaded that the deceased was traveling in the offending Van at the time of accident. Thus, by no stretch of imagination, the deceased can be treated as gratuitous passenger. Moreover, the onus to prove the said factum was also upon the insurer, which it has failed to discharge. 21. The claimants, in the claim petition, have specifically pleaded that the deceased was traveling in the offending Van at the time of accident. Thus, by no stretch of imagination, the deceased can be treated as gratuitous passenger. Moreover, the onus to prove the said factum was also upon the insurer, which it has failed to discharge. 21. Having glance of the above discussion, the impugned award is liable to be set aside so far as it pertains to saddling the owner/appellant with the liability. Accordingly, the appeal is allowed and the insurer of the offending Van i.e. Oriental Insurance Company Ltd. Is saddled with the liability to the extent of 50%. 22. The insurer is directed to deposit the amount, alongwith interest as awarded by the Tribunal, within a period of eight weeks from today and on deposit, the Registry is directed to release the entire amount in favour of the claimants forthwith through their bank account(s), strictly in terms of the impugned award. The statutory amount deposited by the insured/appellant is awarded as costs in favour of the claimants.