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2016 DIGILAW 126 (HP)

United India Insurance Company v. Rakesh Kumar

2016-02-26

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, Chief Justice. Challenge in this appeal is to the judgment and award, dated 19th June, 2009, made by the Motor Accident Claims Tribunal, Fast Track Court, Una, District Una, H.P. (for short "the Tribunal") in MAC Petition No. RBT 16/05/03, titled as Rakesh Kumar versus Surinder Kumar and others, whereby compensation to the tune of 1,25,000/with interest @ 6% per annum from the date of filing of the petition came to be awarded in favour of the claimant-injured and against the respondents (for short “the impugned award”). 2. The claimant-injured, driver and the owners-insured of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. Appellant-insurer has questioned the impugned award so far it relates only to issues No. 4 and 5. Thus, I deem it proper to reproduce only issues No. 4 and 5 framed by the Tribunal herein: “4. Whether the tractor in question was being used against the terms and conditions of insurance policy as alleged, if so its effect? OPR5 5. Whether respondent No. 1 was not having any valid and effective driving licence at the relevant time as alleged, if so its effect? OPR5” Issue No. 4: 4. Appellant-insurer has not led any evidence to prove that the offending vehicle was being used in violation of the terms and conditions of the insurance policy. However, I have gone through the averments contained in the claim petition, wherein it has been specifically averred that the material was being taken for the personal use of the driver of the owners-insured. Thus, it cannot be said that the offending vehicle was being used in violation of the terms and conditions contained in the insurance policy. 5. It was for the appellant-insurer to plead and prove the said issue, has not led any evidence to this extent, thus, has failed to discharge the onus. Accordingly, the findings returned by the Tribunal on issue No. 4 are upheld. Issue No. 5: 6. It was for the appellant-insurer to lead evidence and prove that the driver of the offending vehicle was not having a valid and effective driving licence to drive the offending vehicle. 7. Learned counsel for the appellant-insurer argued that the driver of the offending vehicle was having a fake licence, which is factually incorrect. The document, Ext. It was for the appellant-insurer to lead evidence and prove that the driver of the offending vehicle was not having a valid and effective driving licence to drive the offending vehicle. 7. Learned counsel for the appellant-insurer argued that the driver of the offending vehicle was having a fake licence, which is factually incorrect. The document, Ext. RW1/A, which has been proved before the Tribunal, does disclose that the driving licence was valid one and the driver of the offending vehicle was having an effective driving licence. 8. Even otherwise, it was for the appellant-insurer to plead and prove that the owners-insured of the offending vehicle have committed a willful breach or they have not exercised due care and caution, has not led any evidence to this effect, thus, has failed to prove the said factum. 9. Having said so, the impugned judgment is well reasoned, needs no interference. 10. Accordingly, the impugned award is upheld and the appeal is dismissed. 11. Registry is directed to release the awarded amount in favour of the claimant-injured strictly as per the terms and conditions contained in the impugned award through payee's account cheque or by depositing the same in his bank account. 12. Send down the record after placing copy of the judgment on Tribunal's file.