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Himachal Pradesh High Court · body

2016 DIGILAW 1245 (HP)

New India Assurance Co. v. Minakshi Sharma

2016-07-01

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 26th February, 2011, passed by the Motor Accident Claims Tribunal-II, Una, District Una, H.P. (for short, “the Tribunal”) in Claim Petition No.11 of 2010, titled Minakshi Sharma vs. Balbir Singh and others, whereby the claim petition was allowed, compensation to the tune of Rs.2,83,,400/-, alongwith interest at the rate of 9% per annum from the date of filing of the claim petition till the realization thereof, came to be awarded in favour of the claimant and the insurer was saddled with the liability, (for short the “impugned award”). 2. The owner and the driver 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, while the claimant has questioned the impugned award by filing Cross Objections No.321 of 2011. 4. Heard and gone through the record. 5. The Tribunal, while deciding issue No.1, after making reference to the evidence, held that the claimant has proved that Rakesh Kumar had died in the accident which was the outcome of rash and negligent driving of driver, namely, Balbir Singh, while driving bus bearing No.PB-07U-6979. There is no challenge to the said findings. Accordingly, the same are upheld. 6. Qua issues No.3 and 4, the Tribunal has rightly held that the claimant had cause of action and the claim petition was maintainable. Accordingly, the said findings are upheld. 7. During the course of hearing, the learned counsel for the insurer only argued that the offending vehicle was not having a valid route permit and therefore, the insurer is not liable. The submission made by the learned counsel for the appellant revolves around issue No.6. Issues No.5 to 9 were decided before the Tribunal as not pressed, therefore, the appellant is precluded to lay any challenge to the said findings. Moreover, it was for the insurer to lead evidence and discharge the onus, has not led any evidence for which reason the insurer has not pressed issues No.5 to 9 before the Tribunal and were decided accordingly. Accordingly, the findings returned by the Tribunal on issues No.5 to 9 are upheld. 8. Moreover, it was for the insurer to lead evidence and discharge the onus, has not led any evidence for which reason the insurer has not pressed issues No.5 to 9 before the Tribunal and were decided accordingly. Accordingly, the findings returned by the Tribunal on issues No.5 to 9 are upheld. 8. Coming to issue No.2 and the Cross Objections filed by the claimant for enhancement, I have gone through the assessment made by the Tribunal and am of the view that the Tribunal has rightly made the guess work and has rightly assessed the compensation. Accordingly, the findings returned by the Tribunal on issue No.2 are upheld. 9. Having said so, there is no merit in the appeal as well as Cross Objections and the same are dismissed.