Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1072 (HP)

Oriental Insurance Co. Ltd. v. Prajwal Singh

2016-06-17

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is the award, dated 11th July, 2008, passed by the Motor Accident Claims Tribunal, Fast Track Court, Chamba, H.P., (for short, the Tribunal), in Claim Petition No.23/2008/05, titled Prajwal Singh vs. Oriental Insurance Company Ltd. and others, whereby the claim petition was allowed and compensation to the tune of Rs.4,41,500/-, with interest at the rate of 7.5% per annum from the date of filing of the claim petition till deposit, was awarded in favour of the claimant and the insurer was saddled with the liability, (for short, the impugned award). 2. The claimant and the owner have not questioned the impugned award on any count, thus, the same has attained finality, so far as it relates to them. 3. The insurer has questioned the impugned award on the ground that the Tribunal has fallen into an error in saddling it with the liability. Therefore, the only question needs to be answered is – Whether the Tribunal has rightly fastened the insurer with the liability? The answer is in the affirmative for the following reasons. 4. The claimant, being the minor son of Ashok Kumar, on account of the death of the said Ashok Kumar in a vehicular accident occurred on 16th October, 2000 at about 11 PM, near Banikhet, filed the claim petition for grant of compensation to the tune of Rs.5.00 lacs as per the break-ups given in the claim petition. 5. Original respondents No.1 and 2, i.e. the insurer and the owner resisted the claim petition by filing replies. On the pleadings of the parties, the following issues came to be settled:- “1. Whether on 16.10.2000 at about 11 AM, at Khairi Bridge near Banikhet, Shri Ashok Kumar, father of the petitioner died in a vehicular mishap, as alleged? OPP 2. Issue No.1 is proved, to what amount of compensation the petitioner is entitled to and from whom? OPP 3. Whether the petition is not maintainable, as alleged? OPR-1 4. Whether the petition is collusive, as alleged? OPR-1 5. Whether the petitioner has no locus standi to file the petition, as alleged? OPR-1 6. Whether the similar petition was dismissed, as alleged? OPR 7. Whether the driver of the vehicle was not holding a valid and effective driving licence at the time of accident, as alleged? OPR-1 8. OPR-1 4. Whether the petition is collusive, as alleged? OPR-1 5. Whether the petitioner has no locus standi to file the petition, as alleged? OPR-1 6. Whether the similar petition was dismissed, as alleged? OPR 7. Whether the driver of the vehicle was not holding a valid and effective driving licence at the time of accident, as alleged? OPR-1 8. Whether the offending vehicle was being plied in contravention of terms of the insurance Policy, as alleged? OPR-1 9. Relief.” 6. In order to prove his case, the claimant examined two witnesses, namely, PW-1 Gurdhian Singh and PW-2 Surjan Singh. The insurer has examined RW-1 Uttam Chand, official from the office of District & Sessions Judge Chamba, while the owner of the offending vehicle has stepped into the witness box as RW-2. 7. After hearing the learned counsel for the parties and having perused the record, my issue-wise findings are as under. Issue No.1: 8. The Tribunal has categorically recorded findings under this issue that the deceased Ashok Kumar, at the time of accident, was driving the offending vehicle bearing No.HP-47- 2280 and died in the accident, which findings are not in dispute. Accordingly, the same are upheld. 9. Before Issue No.2 is taken up for adjudication, I deem it proper to take up other issues at the first instance. Issues No.3 to 6: 10. Onus to prove all these issues was upon the insurer, has not led any evidence. Even during the course of hearing of the instant appeal, the learned counsel for the appellant/insurer was not able to show from the record as to how the claim petition was not maintainable or the claimant had no locus standi to file the petition. On the contrary, a perusal of the record would reveal that the claim petition was maintainable in its present form. Accordingly, all these issues are decided in favour of the claimant and against the insurer. Issue No.7: 11. The Tribunal has held that the deceased was holding a valid and effective driving licence at the time of accident. The insurer has not led any evidence to prove that the deceased was not having a valid and effective driving licence at the time of accident. The Tribunal has rightly made discussion in paragraph 16 of the impugned award, which are borne out from the records. The insurer has not led any evidence to prove that the deceased was not having a valid and effective driving licence at the time of accident. The Tribunal has rightly made discussion in paragraph 16 of the impugned award, which are borne out from the records. Accordingly, the findings returned by the Tribunal on this issue are also upheld. Issue No.8: 12. The factum of insurance is admitted. It was for the insurer to prove that the offending vehicle was being plied, at the time of accident, in contravention of the insurance policy, has not led any evidence to that effect. On the other hand, insurance policy has been proved on record as Ext.RW-1/A, which does disclose that the vehicle was duly insured. Thus, it cannot be claimed by the insurer that the vehicle was being plied in contravention of the insurance policy and the owner had committed any breach, what to speak of willful breach. Accordingly, the findings returned by the Tribunal on this issue are upheld. Issue No.2: 13. This issue pertains to quantum of compensation. The compensation awarded by the Tribunal cannot be said to be on the higher side, rather it is meager. However, the claimant has not filed any appeal, accordingly the same is reluctantly upheld. 14. Having glance of the above discussion, there is no merit in the instant appeal and the same is dismissed. Consequently, the impugned award is upheld. The Registry is directed to release the entire amount in favour of the claimant, alongwith up-to-date interest, forthwith strictly in terms of the impugned award.