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2016 DIGILAW 1392 (HP)

Birbal v. Prabhu Chand

2016-07-15

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 15th April, 2011, passed by the Motor Accident Claims Tribunal, Kinnaur Civil Division at Rampur Bushahr, H.P. (for short, “the Tribunal”) in Claim Petition No.76 of 2008, titled Birbal and others vs. Prabhu Chand and others, whereby compensation to the tune of Rs.2,04,500/-, alongwith interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization, came to be awarded in favour of the claimants and the insurer was saddled with the liability, (for short the “impugned award”). 2. Feeling aggrieved, the claimants by the medium of instant appeal have challenged the impugned award on the ground of adequacy of compensation and the insurer has filed the Cross Objections laying challenge to the impugned award on the ground that the Tribunal has wrongly saddled it with the liability. 3. Thus, following two questions are to be determined in the instant appeal: i. Whether the amount of compensation awarded by the Tribunal is inadequate? ii. Whether the insurer came to be rightly saddled with the liability? 4. At the time of accident, the deceased was 10 years of age. The Tribunal in paragraph 17 of the impugned award, after discussing the facts and exercising the guess work, held that the claimants were entitled to Rs.2,04,500/- as compensation. The Tribunal has rightly made the assessment and has rightly awarded the compensation, cannot be said to be on the lower side. Accordingly, the amount of compensation awarded by the Tribunal is upheld. 5. Coming to the next question, it was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence at the time of accident, has not led any evidence to prove the said fact. Learned counsel for the insurer argued that the insurer has filed an application, being CMP No.91 of 2013, under Section 41 Rule 27 read with Section 151 of the Code of Civil Procedure for placing on record a surveyor report, in order to prove that the driver of the offending vehicle, at the time of accident, was not having a valid and effective driving licence. 6. 6. The said application (CMP No.91 of 2013) deserves to be dismissed for the simple reason that the insurer cannot be permitted to defeat the right of the claimants at this belated stage. Moreover, it was for the insurer to plead and prove, by leading evidence, before the Tribunal that the driver of the offending vehicle was not having valid and effective driving licence at the time of accident, which it has not done despite affording sufficient opportunities. Therefore, once the insurer has failed to prove before the Tribunal that the driver was not having a valid and effective driving licence at the time of accident, it does not lie in the mouth of the insurer to argue at this stage that the driver was not having a valid and effective driving licence. Accordingly, the application (CMP No.91 of 2013) is dismissed and the finding returned by the Tribunal on issue No.3 are upheld. 7. Learned counsel for the insurer also argued that the claim petition was not maintainable and the owner has committed willful breach, has not led any evidence, as discussed hereinabove. Accordingly, the findings on issues No.4 and 5 are also upheld. 8. Onus to prove, that the claim petition was collusive, was on the insurer, has not led any evidence to prove the said factum. Moreover, the findings returned by the Tribunal on issue No.6 are not questioned by the learned counsel for the insurer during the course of hearing. Accordingly, the same are upheld. 9. Having said so, the appeal as well as the cross objections are dismissed and the impugned award is upheld.