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2016 DIGILAW 1152 (HP)

New India Assurance Company v. Kiran Devi

2016-06-24

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is the award, dated 29th November, 2010, passed by the Motor Accident Claims Tribunal, Fast Track Court, Chamba, District Chamba, H.P. (for short, “the Tribunal”) in Claim Petition No.60 of 2009, titled Sahil Thakur and another vs. The New India Assurance Company Limited, whereby compensation to the tune of Rs.4,72,400/-, alongwith interest at the rate of 7.5% per annum from the date of filing of the claim petition till the deposit, came to be awarded in favour of the claimants and the insurer was saddled with the liability, (for short the “impugned award”). 2. The claimants and the insured have not questioned the impugned award on any ground, thus, the same has attained finality so far as it relates to them. 3. Feeling aggrieved, the insurer has challenged the impugned award by the medium of instant appeal on two grounds, namely – i. The claimants have not arrayed the insured/owner as party, thus the Claim Petition was not maintainable and; ii. Kiran Devi was owner of the vehicle and she had filed the Claim Petition, being Claimant No.1, thus also, the claim petition was liable to be dismissed. 4. Before the above two grounds are trashed out, a brief resume of the facts of the case is as under. On 6th October, 2009, at about 12.30 a.m., deceased Pawan Kumar was driving the vehicle i.e. Mahindra Pick Up bearing registration No.HP-44-0242, and due to sudden mechanical defect in the offending vehicle, it met with an accident, as a result of which driver Pawan Kumar sustained injuries and succumbed to the same. FIR No.67 of 2009 was registered in regard to the accident at Police Station Kihar, District Chamba, H.P. Since the Claimants lost their bread winner, they filed the claim petition before the Tribunal under Section 163A of the Motor Vehicles Act, 1988, (for short, the Act), for grant of compensation to the tune of Rs.10.00 lacs, as per the break-ups given in the Claim Petition. 5. The insurer resisted the Claim Petition by filing reply. The Tribunal, on the pleadings of the parties, framed the following issues:- “1. Whether Pawan Kumar died on 6.10.2009 at Pantah morh Tehsil Salooni, Distt. Chamba in a vehicular accident involving vehicle No.HP-44-0242 as alleged? OPP 2. Whether the petition is not maintainable? OPR 3. 5. The insurer resisted the Claim Petition by filing reply. The Tribunal, on the pleadings of the parties, framed the following issues:- “1. Whether Pawan Kumar died on 6.10.2009 at Pantah morh Tehsil Salooni, Distt. Chamba in a vehicular accident involving vehicle No.HP-44-0242 as alleged? OPP 2. Whether the petition is not maintainable? OPR 3. Whether the driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident? OPR 4. Whether the vehicle involved in the accident was being plied in contravention of conditions of insurance policy as alleged? OPR 5. Relief.” 6. In order to prove their case, the parties also led evidence. 7. It is admitted case of the parties that the accident was the outcome of the use of the offending vehicle and the deceased was driving the said vehicle at the time of accident. In the given circumstances, it cannot be said that the Claim Petition was not maintainable. The Tribunal has rightly determined issues No.1 and 2 and the said findings of the Tribunal are upheld. 8. Now, coming to issue No.3, it was for the insurer to plead and prove that the driver was not having a valid and effective driving licence, in which it has failed. Even otherwise, copy of the driving licence is on the file, which does disclose that the driver was having a valid and effective driving licence. On the basis of the evidence led by the parties, the Tribunal has rightly held that the driver was having a valid and effective driving licence. It is also worthwhile to mention here that the learned counsel for the appellant has not questioned the said findings recorded by the Tribunal. Thus, the findings returned on issue No.3 are also upheld. 9. As far as issue No.4 is concerned, it was for the insurer to plead and prove that the owner had committed willful breach of the terms and conditions of the insurance policy, has failed to do so. 10. Having glance of the above discussion, it is held that the accident was the outcome of the use of the offending vehicle in which driver namely Pawan Kumar lost his life and the claimants, being dependants, lost the source of dependency. 10. Having glance of the above discussion, it is held that the accident was the outcome of the use of the offending vehicle in which driver namely Pawan Kumar lost his life and the claimants, being dependants, lost the source of dependency. The Tribunal has rightly exercised the power and jurisdiction under Section 163A of the Act and has rightly assessed the compensation, which cannot be said to be excessive in any way. 11. The factum of insurance is admitted. In accident claim cases, the Court has to grant compensation while keeping in view the aim and object of granting compensation, which is social and beneficial one. The Act has gone through a sea change and sub section (6) to Section 158 and sub section (4) to Section 166 have been added. Section 158(6) provides that the Incharge of the Police Station concerned has to submit a report about the traffic accident to the Tribunal having the jurisdiction and that report has to be treated as Claim Petition by the Tribunal in terms of Section 166(4) of the Act. Thus, even filing of claim petition is not mandatory for grant of compensation in terms of the said amendment. Therefore, the argument canvassed by the learned counsel for the appellant that the claim petition was not maintainable for non-joinder or mis-joinder of parties is not tenable and is accordingly repelled. 12. The Tribunal was right in not granting compensation to Kiran Devi and has rightly granted compensation to the claimants, namely Sahil Thakur and Achhri Devi, needs no interference. 13. As a consequence of the above discussion, it is held that there is no merit in the appeal and the same is dismissed. The Registry is directed to release the amount in favour of the claimants, strictly in terms of the impugned award by depositing the same in FDR or transferring to their banks accounts. 14. The appeal stands disposed of accordingly.