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Himachal Pradesh High Court · body

2016 DIGILAW 1520 (HP)

Ashwani Narula v. Anita Awasthi

2016-07-29

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Both these appeals are outcome of award dated 23.03.2010, passed by the Motor Accident Claims Tribunal (2) Kangra at Dharamshala, H.P. (hereinafter referred to as ‘the Tribunal’), in M.A.C. Petition No. 57/2002, whereby compensation to the tune of Rs. 14,43,470/- with interest @ 7% per annum from the date of filing of the claim petition till its realization came to be awarded in favour of the claimants and the owners-insured of both the vehicles were saddled with liability in equal shares, (hereinafter referred to as ‘the impugned award’). 2. This judgment shall govern both the appeals. Brief Facts: 3. The claimants had filed the claim petition before the Tribunal for grant of compensation to the tune of Rs. 25,00,000/-, as per the break-ups given in the claim petition. 4. The claim petition was resisted by the respondents on the grounds taken in their memo of objections. During the pendency of the claim petition respondents No. 1 & 4 in the claim petition, i.e. Meena Kumari and Balwinder Singh were set ex-parte. 5. Following issues came to be framed by the Tribunal:- “1. Whether the deceased Ajay Kumar Awasthi was travelling in truck No.HP24-5675 owned by respondent no.1 on 16.7.2002 from Parara to Theog as alleged? OPP. 2. Whether the driver of truck No. HP 24- 5675 now deceased was driving this truck in a rash and negligent manner and had struck it against another offending vehicle HR 58-1212 owed by respondent no.3 and driven by respondent no.4 also in a rash and negligent manner and due to this collision of these offending vehicles the deceased Ajay Kumar Awasthi had died? OPP 3. If issue no.2 is proved in affirmative to what amount of compensation the petitioners being legal heirs of the deceased are entitled to and from whom? OPP 4. Whether the petition is not maintainable in the present form and the petitioners have no locus standi and cause of action to file this petition as alleged? OPR 1 & 3 5. Whether the petition is bad for non joinder and mis joinder of necessary parties as alleged? OPR1 6. Whether the accident had taken place due to the mechanical defect developed in the truck No. HP 24- 5675 as alleged, if so, its effect? OPR1-2 7. OPR 1 & 3 5. Whether the petition is bad for non joinder and mis joinder of necessary parties as alleged? OPR1 6. Whether the accident had taken place due to the mechanical defect developed in the truck No. HP 24- 5675 as alleged, if so, its effect? OPR1-2 7. Whether the driver of offending vehicle HP 24-5675 was not holding a valid and effective driving licence at the time of accident as alleged, if so its effect? OPR2 8. Whether the offending truck HP 24- 5675 was being plied without valid documents, if so its effect? OPR2 9. Whether the deceased was a gratuitous passenger in the transport vehicle, if so its effect? OPR 10. Whether respondent no.4 was not holding valid and effective driving licence to drive the offending vehicle HR 58-1212 on the date of accident? OPR5 11. Whether the respondent 3 and 4 were plying the offending truck HR 58-1212 in violation of terms and conditions of insurance policy as alleged? OPR5 12. Whether the petitioners are not entitled to interest in view of the act and conduct of the petitioners as alleged? OPR5 13. Relief.” 6. Parties have led evidence. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimants have proved that the drivers of the offending vehicles, i.e. trucks bearing registration Nos. HP- 24-5675 and HR-58-1212, had driven the said trucks, rashly and negligently and the accident was outcome of their contributory negligence, it has also held that Ajay Kumar deceased was travelling in the offending truck No. HP-24-5675. 7. The claimants, drivers and insurers of both the offending vehicles have not questioned the impugned award, on any count. Thus, it has attained finality, so far it relates to them. Issues 1 & 2. 8. The insured-owners have questioned the findings returned by the Tribunal to the extent that the Tribunal has fallen in an error in saddling them with liability and in discharging the insurer. The findings recorded viz-a-viz Issues 1 & 2 are not, in fact, under challenge. Accordingly, the findings returned by the Tribunal on Issues 1 & 2 are upheld. 9. Before dealing with Issue No. 3, I deem it proper to deal with issues No. 4 to 12. Issue No. 4. 10. The findings recorded viz-a-viz Issues 1 & 2 are not, in fact, under challenge. Accordingly, the findings returned by the Tribunal on Issues 1 & 2 are upheld. 9. Before dealing with Issue No. 3, I deem it proper to deal with issues No. 4 to 12. Issue No. 4. 10. It was for respondents No. 1 & 3 in the claim petition to prove issue No. 4, have not led any evidence, thus have failed to discharge the onus. The claimants are the victims of the accident, which fact stands proved. Accordingly, the findings returned by the Tribunal on Issue No. 4 are upheld. Issue No. 5. 11. It was for respondent No. 1 in the claim petition to prove issue No. 5, has not led any evidence, thus has failed to discharge the onus. The claim petition was not bad for non-joinder and mis-joinder of necessary parties. Accordingly, the findings returned by the Tribunal on Issue No. 5 are upheld. Issue No. 6. 12. The onus to prove this issue was on respondents No. 1 & 2 in the claim petition, have failed to do so. However, this issue is governed by the findings returned on issue No. 1. Accordingly, the findings returned by the Tribunal on Issue No. 6 are upheld. Issue No. 7. 13. It was for respondent No. 2 in the claim petition, i.e. New India Insurance Company-insurer of truck No. HP-24-5675 to prove that the driver of the said truck was not having a valid and effective driving licence at the time of accident, has failed to lead any evidence. Accordingly, it is held that the Tribunal has rightly recorded the findings on Issue No. 7. Thus, the findings returned by the Tribunal on the said issue are upheld. Issue No. 8. 14. The onus to prove this issue was on respondent No. 2-New India Insurance Company-insurer of truck No. HP-24-5675 that the said truck was being driven without valid documents, has failed to discharge the same. The findings returned by the Tribunal on Issue No. 8 are upheld. Issue No. 9. 15. It was for the insurer, namely, New India Insurance Company Ltd. to plead and prove that deceased Ajay Kumar Awasthi was traveling as a gratuitous passenger in truck No. HP-24-5675. Admittedly, deceased was a government official as Assistant Development Officer (Agriculture) and had boarded the offending truck. Issue No. 9. 15. It was for the insurer, namely, New India Insurance Company Ltd. to plead and prove that deceased Ajay Kumar Awasthi was traveling as a gratuitous passenger in truck No. HP-24-5675. Admittedly, deceased was a government official as Assistant Development Officer (Agriculture) and had boarded the offending truck. He was accompanied by one Rajinder Singh, who appeared before the Tribunal as RW-1 and deposed that both of them had boarded the said truck without any luggage. The said evidence has remained unrebutted. However, it is corroborated by one Naresh Chauhan, who appeared before the Tribunal as PW-2 and deposed that he visited the spot and there was no luggage/material on the spot. Accordingly, I am of the considered view that the Tribunal has rightly recorded the finding that the deceased was travelling in truck No. HP-24-5675 as a gratuitous passenger. Thus, the findings returned by the Tribunal on Issue No. 9 are upheld. Issue No. 10 16. The Tribunal has wrongly recorded that driver of truck No. HR-58-1212 was not having a valid and effective driving licence at the relevant time for the following reasons. 17. Learned Counsel for owner of truck No. HP-24- 5675 has placed on record copy of the award dated 30.03.2006, passed by the Motor Accident Claims Tribunal (III), Shimla, in MACT No. 70-S/2 of 2005/02, titled as Smt. Neena Rani & another versus Sh. Ashwani Kumar & others, wherein it was held that driver of the offending vehicle was having a valid and effective driving licence. The insurer-Oriental Insurance Company has not questioned the said award. Thus, it has attained finality. The said claim petition was also outcome of the same accident which has given birth to the appeals in hand. Thus, the Oriental Insurance Company is estopped from pleading and proving that driver Balwinder Singh was not having a valid and effective driving licence, rather, is caught by the principle of res judicata. Accordingly, the findings returned by the Tribunal on Issue No. 10 are set aside and it is held that driver was having valid and effective driving licence. Issue No. 11. 18. The onus to prove this issue was upon the insurer of truck No. HR-58-1212, i.e. Oriental Insurance Company, has not led any evidence, thus has failed to discharge the same. The findings returned by the Tribunal on issue No. 11 are upheld. Issue No. 12. 19. Issue No. 11. 18. The onus to prove this issue was upon the insurer of truck No. HR-58-1212, i.e. Oriental Insurance Company, has not led any evidence, thus has failed to discharge the same. The findings returned by the Tribunal on issue No. 11 are upheld. Issue No. 12. 19. The Tribunal has rightly decided this issue. Thus, the findings returned by the Tribunal on Issue No. 12 are upheld. Issue No. 3. 20. The adequacy of compensation is not in dispute. However, I have perused the record and the impugned award and am of the considered view that the Tribunal has rightly made the assessment and it cannot be said that the compensation is excessive or meager, in any way. Accordingly, it is held that the just and appropriate compensation has been granted by the Tribunal. 21. The deceased was travelling in offending truck No. HP-24-5675 as a gratuitous passenger. The owner of said offending truck i.e. Smt. Meena Kumari-respondent No. 1 in the claim petition and the appellant in FAO No. 246 of 2010, had willful committed breach. Thus, it is held that she has to satisfy 50% of the award and rightly came to be saddled with liability. 22. The offending truck No. HR-58-1212 had hit the truck No. HP-24-5675 and the accident was outcome of contributory negligence of the drivers of both the vehicles. The owner of truck No. HR-58-1212 has not committed any willful breach. The willful breach committed by the owner of truck No. HP-24-5675, cannot be a ground for the insurer-Oriental Insurance Company to seek exoneration. The findings returned by the Tribunal in exonerating the insurer-Oriental Insurance Company, are set aside and it is held that the Oriental Insurance Company has to satisfy the impugned award to the extent of 50%. 23. It is the mandate of law that the insured owner has to obtain insurance policy relating to the third party risk in order to protect and safeguard the rights and interests of third party. Keeping in view the mandate of Sections 146 to 149 of the Motor Vehicles Act, 1988, the insurer has to satisfy the impugned award to the extent of 50%, at the first instance, with right of recovery from owner-insured of truck No. HP-24-5675. 24. Keeping in view the mandate of Sections 146 to 149 of the Motor Vehicles Act, 1988, the insurer has to satisfy the impugned award to the extent of 50%, at the first instance, with right of recovery from owner-insured of truck No. HP-24-5675. 24. The Tribunal has also fallen in an error in awarding interest @ 7% per annum, which was to be awarded as per the prevailing rates. 25. It is a beaten law of the land that the rate of interest should be awarded as per the prevailing rates, in view of the judgments rendered by the Apex Court in cases titled as United India Insurance Co. Ltd. and others versus Patricia Jean Mahajan and others, reported in (2002) 6 SCC 281 ; Santosh Devi versus National Insurance Company Ltd. and others, reported in 2012 AIR SCW 2892; Amrit Bhanu Shali and others versus National Insurance Company Limited and others, reported in (2012) 11 SCC 738 ; Smt. Savita versus Binder Singh & others, reported in 2014 AIR SCW 2053; Kalpanaraj & others versus Tamil Nadu State Transport Corpn., reported in 2014 AIR SCW 2982; Amresh Kumari versus Niranjan Lal Jagdish Pd. Jain and others, reported in (2015) 4 SCC 433 ; and Mohinder Kaur and others versus Hira Nand Sindhi (Ghoriwala) and another, reported in (2015) 4 SCC 434 , and discussed by this Court in a batch of FAOs, FAO No. 256 of 2010, titl titled as Oriental Insurance Company ed versus Smt. Indiro and others, being the lead case, decided on 19.06.2015. 26. Having said so, I deem it proper to enhance the rate of interest from 7% per annum to 7.5% per annum from the date of filing of the claim petition till its realization. Issue No. 3 is answered accordingly. 27. The statutory amount deposited by owners is awarded as costs in favour of the claimants. 28. The Registry is directed to release the compensation amount and the costs in favour of the claimants, strictly in terms of conditions contained in the impugned award, through payees account cheque or by depositing the same in their accounts. 29. Viewed thus, the impugned award is modified, as indicated above, FAO No. 223 of 2010 is allowed and FAO No. 246 of 2010 is disposed of. 30. Send down the records after placing a copy of the judgment on the Tribunal’s file.