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2016 DIGILAW 1073 (HP)

United Indian Assurance Co. Ltd. v. Tikkam Ram

2016-06-17

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the judgment and award dated 17.7.2009, made by the Motor Accident Claims Tribunal, Kullu, H.P. in Claim Petition No. 3 of 2008, titled Sh. Tikkam Ram and another versus Ghungarmal and another, for short “the Tribunal”, whereby compensation to the tune of Rs.3,87,500/- alongwith interest @ 7.5% per annum, came to be awarded in favour of the claimants, hereinafter referred to as “the impugned award”, for short. 2. Owner and claimants have not questioned the impugned award on any ground, has attained the finality, so far as it relates to them. 3. The insurer has questioned the impugned award on the ground that the tribunal has fallen in an error in saddling it with the liability. 4. The arguments though attractive, is devoid of any force for the following reasons. 5. The claimants being the victims of vehicular accident, which was allegedly caused by driver, namely, Prem Lal, who also died in the said accident while driving Bolero Camper No. HP-34-A5834 on 25.10.2007 at about 9.00 AM near village Fagla Suma, Tehsil and District Kullu, H.P. It is specifically pleaded by the claimants in the claim petition that the deceased was traveling in the said vehicle alonwith rice bag and wheat seed bags and he had hired the vehicle. The said averment has not been denied by the owner. 6. It is beaten law of the land that the evasive denial is an admission as per the mandate of Order 8 of the Code of Civil Procedure, for short “CPC”. 7. The Tribunal has made the discussions from paras 38 to 41 of the impugned award. I am of the considered view that the Tribunal has rightly recorded the said findings. 8. The claimants Tikkam Ram appeared as PW3 in the witness-box and examined Tek Singh PW4, who have given the details that how the vehicle was hired by the deceased. The deceased was carrying rice bag and wheat seed bags and was sitting in the vehicle as owner of the goods. The learned counsel for the insurer has cross-examined them but nothing material could be extracted from them in favour of the insurer. It is apt to reproduce paras 39 and 40 of the impugned award herein. “39. The deceased was carrying rice bag and wheat seed bags and was sitting in the vehicle as owner of the goods. The learned counsel for the insurer has cross-examined them but nothing material could be extracted from them in favour of the insurer. It is apt to reproduce paras 39 and 40 of the impugned award herein. “39. The petitioners when the petition was filed before the Tribunal have very specifically pleaded that jeep was hired for carrying the rice bag and wheat seed and the deceased was sitting along with his goods. This fact has neither been denied specifically by the respondent when they filed reply. In the rebuttal evidence of the respondent, the petitioner No.1 Tikam Ram himself appeared in the witness box as PW3. It has come in his evidence that they had loaded bags of what seed and rice in the jeep and they were proceeding to Fagla from Sainj. In cross-examination he has specifically denied that the above said articles were not loaded in the jeep. He also explained the reason for not attaching the bills since it was local seed. He has admitted the suggestion of the respondent that he was traveling after paying the requisite fare. As such, he has tried to prove it on record that his son was traveling in the jeep along with goods as owner or representative of the goods. 40. The version of PW3 the petitioner has further been corroborated and supported by Tek Singh PW-4. He has very specifically stated that deceased was sitting in the vehicle. The bags of what seed and rice had fallen on the place from where the vehicle fell to the downward hill side. He has denied the suggestion of the respondent that the rice and what bags were not in the vehicle. He has explained that he had not seen the bag inside the vehicle but those were lying outside the place of accident. The presence of this witness at the spot is not disputed as it is at his instance the FIR Ext. PW2/A was registered on the basis of his statement recorded under Sec. 154 Cr.PC and he has seen the accident. The presence of this witness at the spot is not disputed as it is at his instance the FIR Ext. PW2/A was registered on the basis of his statement recorded under Sec. 154 Cr.PC and he has seen the accident. This witness is not related to the petitioners nor he has any enmity with the respondent and there was no reason for him to state against or in favour of the parties but since the accident has taken place in his presence as such he recorded the FIR with the police. Nothing has come in his evidence which could support the case of the respondent that the vehicle was not carrying the goods that of the deceased. Though the I.O. has stated that when he went to the spot he did not find any bag of rice or what but he has further clarified in the cross-examination that when he reached at the spot dead body and injured had already been removed from the spot and since the accident has snot taken place in his presence, as such, he is unable to tell whether goods were loaded in the jeep or not. It is just possible that before he reached at the spot, after 4 or 5 hours of the accident the goods had already been removed from the place of occurrence either by the claimants or by the other persons and only this inference can be drawn. The accident has taken place on 25.10.2007 and the petition was presented on 1.1.2008, i.e. within a period of 60-65 days and right from the day one the petitioners are maintaining that their goods were loaded and deceased was accompanying those goods to the destination. Therefore, the plea of the petitioners appears to be genuine and supported by trustworthy and reliable evidence. 9. Having said so, the Tribunal has rightly recorded the findings on issue No.6. 10. The learned counsel for the insurer/appellant has not questioned the findings on other issues, are upheld. 11. Viewed thus, the impugned award is upheld and the appeal is dismissed. 12. The Registry is directed to release the awarded amount in favour of the claimants, through payees’ cheque account or by depositing the same in their bank account, strictly in terms of the conditions contained in the impugned award. 13. Send down the record forthwith, after placing a copy of this judgment.