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Himachal Pradesh High Court · body

2016 DIGILAW 1068 (HP)

Ramesh Kumar v. National Insurance Company Ltd.

2016-06-17

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 14th January, 2011, passed by the Motor Accident Claims Tribunal-II, Solan, District Solan, H.P., (for short, “the Tribunal”) in Case No.5-NL/2 of 2009, titled Surat Ram & others vs. Ramesh Kumar & others, whereby a sum of Rs.3,34,000/- alongwith interest at the rate of 9% per annum came to be awarded as compensation in favour of the claimants, and the owner-insured and the driver came to be saddled with the liability (for short the “impugned award”). 2. The insurer and the claimants have not questioned the impugned award on any count. Thus, the same has attained finality so far it relates to them. 3. Feeling aggrieved, the owner and the driver have filed the instant appeal on the ground that the Tribunal has fallen into an error in saddling them with the liability. 4. The claimants have invoked the jurisdiction of the Tribunal for grant of compensation to the tune of Rs.10 lacs, as per the break-ups given in the claim petition, on account of the death of Heera Lal in an accident on 22nd September, 2008. The claim petition was resisted by the insurer, while original respondents No.1 and 2 i.e. the owner and the driver were set ex-parte. The insurer has specifically pleaded that the vehicle was being driven in breach of the terms and conditions of the insurance policy. 5. On the pleadings of the parties, the Tribunal framed the following issues:- “1. Whether the deceased Heera Lal died in an accident on account of rash and negligent driving of respondent No.2? …OPP. 2. If issue No.1 is proved in affirmative, to what amount and from whom the petitioners are entitled for compensation? ….OPP. 3. Whether the petition is not maintainable? …OPR. 4. Whether the vehicle in question was driven in breach of terms and conditions of policy? OPR-3. 5. Relief.” 6. The claimants, in order to prove their case, have examined three witnesses, namely, PW-1 Surat Ram, PW-2 Narinder Kumar and PW-3 Sukh Ram. On the other hand, the insurer did not lead any evidence. 7. Heard the learned counsel for the parties and gone through the record. 8. The Tribunal, after scanning the pleadings of the parties and the evidence, held that the claimants have been able to prove issue No.1. On the other hand, the insurer did not lead any evidence. 7. Heard the learned counsel for the parties and gone through the record. 8. The Tribunal, after scanning the pleadings of the parties and the evidence, held that the claimants have been able to prove issue No.1. There is no quarrel about the findings recorded on this issue. Accordingly, the findings returned by the Tribunal on issue No.1 are upheld. 9. The Tribunal, while deciding issue No.2, came to the conclusion that the claimants were entitled to compensation to the tune of Rs.3,34,000/- and saddled the owner and the driver of the offending vehicle with liability. The adequacy of compensation is not in dispute. Therefore, the findings returned by the Tribunal, relating to assessing of compensation under issue No.2, are also upheld. 10. Now, the only question remains to be determined under issue No.2 is - Whether the Tribunal has fallen into an error in saddling the owner and the driver of the offending vehicle with liability. Before answering the said question, I deem it proper to decide issue No.3. 11. Issue No.3 pertains to the maintainability of the claim petition. It was for the insurer to plead and prove that the claim petition was not maintainable, has not led any evidence. Accordingly, it is held that issue No.3 was rightly decided by the Tribunal in favour of the claimants and against the insurer. Moreover, the insurer has not questioned the findings returned by the Tribunal on issue No.3 and the same have attained finality. 12. As far as part of issue No.2, as discussed above, and issue No.4 are concerned, the learned counsel for the insurer argued that the insurer could not prove whether the driving licence of the driver was valid and effective at the time of accident or otherwise for the simple reason that the same was never placed on record either by the owner of the offending vehicle or by the driver. Had the driver and the owner contested the claim petition and placed on record the copy of the driving licence, the insurer would have been able to prove whether the driving licence was valid and effective at the relevant point of time or otherwise. Since the driver and the owner opted not to join proceedings before the Tribunal, the insurer had no opportunity to prove the said factum. 13. Since the driver and the owner opted not to join proceedings before the Tribunal, the insurer had no opportunity to prove the said factum. 13. The learned counsel for the appellants (the owner and the driver) submitted that the appellants have moved an application i.e. CMP No.510 of 2011 under Order 41 Rule 27 of the Code of Civil Procedure for placing on record copy of the insurance policy and the copy of the driving licence. 14. In the facts of the case, I deem it proper to allow the application. The documents, detailed above, are ordered to be taken on the record of the Claim Petition. 15. Having glance of the above discussion, the findings recorded by the Tribunal on issue No.2 partly and issue No.4 are set aside and the case is remanded to the Tribunal below for recording findings afresh on the aforesaid issues. Needless to say, in order to prove issue No.2 (partly) and issue No.4, the Tribunal shall afford opportunity to the driver and the owner to file replies and lead evidence. The insurer shall also be afforded opportunity to lead evidence. The Tribunal is directed to conclude the case, as above, within three months from 1st July, 2016, on which date, the parties through their respective counsel are directed to cause appearance before the Tribunal. The Registry is directed to send down the records forthwith so as to reach the Tribunal below well before the date fixed. 16. The appeal is disposed of accordingly.