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Himachal Pradesh High Court · body

2016 DIGILAW 1069 (HP)

Oriental Insurance Co. Ltd. v. Anjana Sharma

2016-06-17

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. By the medium of these appeals, the insurer has challenged two awards, dated 20th March, 2010, passed by the Motor Accident Claims Tribunal (I), Kangra at Dharamshala, H.P. (for short, the Tribunal), in Claim Petition No.79-P/II-2006, titled Anjana Sharma vs. Rajinder Kumar and another, (subject matter of FAO No.254 of 2010), and in Claim Petition No.80-P/II-2006, titled Abhinav Pankaj vs. Rajinder Kumar and another, (subject matter of FAO No.253 of 2010), whereby both the claim petitions were allowed and the insurer was saddled with the liability, (for short, the impugned awards). 2. Since both the appeals arise out of one accident, therefore, the same were heard together and are being disposed of by this common judgment. Brief facts: 3. Claimants in both the Claim Petitions invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (for short, the Act) for grant of compensation, as per the break-ups given in the respective claim petitions. It was averred that on 6th May, 2005, Sapnesh was driving the Scooty bearing No.HP-39A-3596 and Abhinav Pankaj was pillion rider. At about 3.30 p.m., when they were coming towards Kalu-Di-Hatti from Maranda side, a Jeep bearing registration No.HP-29-1085, coming from opposite side, being driven by its driver, namely, Rajinder Kumar rashly and negligently, hit the Scooty as a result of which, Sapnesh sustained injuries and succumbed to the same, while the pillion rider Abhinav Pankaj sustained multiple injuries. 4. Anjana Sharma, being the mother of deceased Sapnesh, filed claim Petition No.79-P/II-2006, for grant of compensation to the tune of Rs.7.00 lacs, as per the break-ups given in the Claim Petition. The Tribunal, vide the impugned award, allowed the Claim Petition and granted compensation to the tune of Rs.3,39,000/-, with interest at the rate of 6% per annum from the date of institution of the Claim Petition, in favour of the claimant and saddled the insurer with the liability. Apart from it, costs to the tune of Rs.2,000/- were also awarded in favour of the claimant-mother. 5. Injured Abhinav Pankaj also filed claim Petition No.80-P/II-2006, for grant of compensation to the tune of Rs.4.00 lacs, on account of the injuries sustained by him in the accident. Apart from it, costs to the tune of Rs.2,000/- were also awarded in favour of the claimant-mother. 5. Injured Abhinav Pankaj also filed claim Petition No.80-P/II-2006, for grant of compensation to the tune of Rs.4.00 lacs, on account of the injuries sustained by him in the accident. The Tribunal, vide the impugned award, allowed the Claim Petition and a sum of Rs.99,800/-, with interest at the rate of 6% per annum from the date of institution of the Claim Petition, was awarded in favour of the claimant-injured and the insurer was saddled with the liability. In addition, Rs.2,000/- were also awarded as costs in favour of the claimant-injured. 6. The driver/owner of the offending Jeep and the insurer (present appellant) have contested the Claim Petitions before the Tribunal by filing separate replies. 7. The Tribunal, framed almost similar issues in both the Claim Petitions. The issues framed in Claim Petition No.79-P/II-2006 (subject matter of FAO No.254 of 2010) are being reproduced below: “1. Whether deceaed Sapnesh died in motor vehicle accident with vehicle No.HP-29-1085 being driven by respondent No.1 rashly and negligently? OPP 2. If issue No.1 is proved in affirmative, whether the petitioner is entitled for compensation, if so how much and from whom? OP Parties. 3. Whether the respondent No.1 was holding a valid and effective driving licence at the time of accident? OPR-1 4. Whether the jeep in question was being plied in contravention of terms and conditions of insurance policy as alleged? OPR-2 5. Whether the petition is not maintainable in the present from as alleged? OPR-1 6. Whether the accident was the result of rash and negligent driving of driver of scooty No.HP-39A-3596 as alleged? OPR-1 & 2. 7. Relief.” 8. In order to prove their respective claims, parties, more or less, led similar evidence. The Tribunal after examining the evidence and the pleadings of the parties, allowed both the Claim Petitions and awarded compensation as detailed above. 9. Feeling aggrieved, the insurer has questioned the impugned awards on the ground that the Tribunal has fallen into an error in saddling it with the liability. The claimants and the driver/owner/insured have not questioned the impugned awards on any count, thus, the same have attained finality in so far as the impugned awards relate to them. 10. 9. Feeling aggrieved, the insurer has questioned the impugned awards on the ground that the Tribunal has fallen into an error in saddling it with the liability. The claimants and the driver/owner/insured have not questioned the impugned awards on any count, thus, the same have attained finality in so far as the impugned awards relate to them. 10. Thus, the only question needs to be determined in these appeals is – Whether the insurer came to be rightly saddled with the liability? 11. During the course of hearing, the learned counsel for the appellant-insurer argued that the deceased was driving the Scooty in a rash and negligent manner and had hit the Jeep bearing No.HP-29-1085, which was stationary at the relevant point of time. The said factum sought to be substantiated from the testimony of RW-3 HC Hari Ram, RW-4 Atma Ram and RW-6 Rajinder Kumar (driver/owner of the offending Jeep). It was also submitted that the Tribunal has wrongly appreciated the statement of PW-4 Abhinav Pankaj and has fallen into an error in relying upon his statement, who also sustained injuries in the accident, in coming to the conclusion that the offending Jeep, at the time of accident, was being driven rashly and negligently by its driver. 12. It was further submitted by the learned counsel for the appellant/insurer that in regard to the accident, no FIR was registered against the driver of the offending Jeep, suggestive of the fact that the offending Jeep was not being driven rashly and negligently. It was also submitted that FIR was registered against the deceased Sapnesh, who was driving the Scooty rashly and negligently at the time of accident, and since the said Sapnesh died in the accident, therefore, the FIR resulted into untraced report having been accepted by the Court of competent jurisdiction. 13. In view of the above, it was submitted by the learned counsel for the insurer that the Tribunal has misinterpreted the evidence led before it and has wrongly fastened the liability on the insurer. Accordingly, it was prayed that the impugned awards be set aside. 14. 13. In view of the above, it was submitted by the learned counsel for the insurer that the Tribunal has misinterpreted the evidence led before it and has wrongly fastened the liability on the insurer. Accordingly, it was prayed that the impugned awards be set aside. 14. On the other hand, learned counsel for respondent No.1 in FAO No.254 of 2010, while supporting the impugned award, submitted that PW-4 Abhinav Pankaj has categorically stated before the Tribunal that, at the time of accident, the offending Jeep, being driven in a rash and negligent manner, was coming from opposite side. It was submitted that the statements of the witnesses relied upon by the learned counsel for the appellant/insurer to prove that the offending Jeep was stationary at the relevant point of time, are not inspiring confidence and cannot be relied upon. Thus, it was submitted that the appeals are liable to be dismissed. 15. I have heard the learned counsel for the parties and have gone through the record. 16. From the above, it is clear that the controversy, in both the appeals, revolves around issues No.1 and 6, and my findings on these issues are as follows. 17. The parties have led evidence. The Tribunal, while coming to the conclusion that the accident was the outcome of rash and negligent driving of the driver of the Jeep, has relied upon the statement of claimant Abhinav Pankaj, the pillion rider, who appeared as PW-4 in Claim Petition filed by Anjana Sharma and as PW-2 filed by said Abhinav Pankaj himself. The Tribunal brushed aside the evidence led by the respondents and based his findings on the sole statement of Abhinav Pankaj since, as per the Tribunal, Abhinav Pankaj was the only person who had witnessed the accident. 18. The Tribunal has lost sight of the fact and has not properly appreciated the evidence, oral as well as documentary, produced by the respondents. The independent witnesses examined by the respondents, in both the cases, are similar. Therefore, for the sake of brevity, the evidence led by the respondents in the Claim Petition No.79-P/II-2006, filed by Anjana Sharma, is being referred to. 19. The Tribunal has not discussed the statements of RW-1 HC Ranjeet Singh, RW-3 HC Hari Ram, RW-4 Atma Ram and RW-5 Shakuntla Devi. Therefore, for the sake of brevity, the evidence led by the respondents in the Claim Petition No.79-P/II-2006, filed by Anjana Sharma, is being referred to. 19. The Tribunal has not discussed the statements of RW-1 HC Ranjeet Singh, RW-3 HC Hari Ram, RW-4 Atma Ram and RW-5 Shakuntla Devi. All these witnesses are independent witnesses, not related to any of the parties, while the pillion rider PW-4 Abhinav Pankaj was an interested witness since he himself had filed the claim petition and prayed for grant of compensation (subject matter of FAO No.253 of 2010). Thus, the statement of PW-4 Abhinav Pankaj has to be appreciated while keeping in view the said fact. 20. FIR No.120/05, dated 6th May, 2005, was registered at Police Station and has been proved on record as Ext.PW-2/A, a perusal of which shows that it was recorded therein that the accident had taken place due to the rash and negligent driving of the driver of the Scooty. RW-3 HC Hari Ram stated that FIR No.120/05 (Ext.PW-2/A) was recorded against the driver of the Scooty Sapnesh, who died in the accident, therefore, untraced/cancellation report was presented before the Judicial Magistrate concerned. The said untraced/cancellation report was proved on record as Ext.RW-3/A, wherein it has been unequivocally recorded by the investigating officer that during investigation, it was found that the driver of the Scooty, namely, Sapnesh, had hit the Jeep on the wrong side of the road. It is apt to reproduce hereunder the relevant portion of the untraced/cancellation report Ext.RW-3/A: “………The evidence brought on record clearly establishes the guilt of the deceased Sapnesh. Had he exercised care and caution and adhered to the norms of safe driving this unfortunate accident would not have taken place. Not only did the accused himself perish in that fatal accident, but the pillion rider Abhinav also sustained grievous injury which is also directly attributable to the rash and negligent driving of the deceased Sapnesh. Therefore, offence under Section 279, 338, 304-A IPC are clearly made out against Sapnesh. However, since he cannot be brought to book for his offence as he is no longer alive, and a untraced report is submitted for your perusal and consideration……..” 21. Therefore, offence under Section 279, 338, 304-A IPC are clearly made out against Sapnesh. However, since he cannot be brought to book for his offence as he is no longer alive, and a untraced report is submitted for your perusal and consideration……..” 21. RW-4 Atma Ram stated that on the fateful day and at the relevant point of time, he was taking tea outside the Railway Quarters, heard a loud sound and noticed that the driver of the Scooty had struck against the stationary Jeep. This witness has clearly stated that the accident had occurred due to rash and negligent driving of the driver of the Scooty, namely, Sapnesh. Though the claimants have cross examined this witness, however, nothing could be extracted which could be made the basis for disbelieving the version of this witness. 22. RW-5 Shakuntla Devi, official from the office of Judicial Magistrate Ist Class, Palampur, stated that the FIR No.120/05, Police Station Palampur, was ordered to be kept as untraced challan. 23. Having glance of the above discussion, the Tribunal has fallen into an error in relying upon the statement of the sole witness Abhinav Pankaj in holding that the accident had occurred due to the rash and negligent driving of the driver of the Jeep. The reasoning given by the Tribunal in coming to such a conclusion in paragraph 21 of the impugned award is not supported by the evidence, as discussed hereinabove. 24. In view of the above, issue No.1 is decided against the claimants and Issue No.6 is decided in favaour of the insured/owner/driver and the insurer of the Jeep, in both the claim petitions. 25. As a consequence, it is held that since the accident was the outcome of rash and negligent driving of the driver of the Scooty, namely, Sapnesh, therefore, the claim petition filed by the mother of the deceased Sapnesh was not maintainable. 26. As far as the claim petition filed by the pillion rider Abhinav Pankaj is concerned, unfortunately he has not arrayed the owner and the insurer of the Scooty as parties. Therefore, the claim petition filed by him suffers from non-joinder of necessary and important parties and accordingly merits to be dismissed and the same is also dismissed. 27. Viewed thus, both the appeals are allowed, the impugned awards are set aside and the claim petitions are dismissed.