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2016 DIGILAW 1863 (HP)

Roshan Lal v. Shetu Devi

2016-09-02

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. 1. This appeal is directed against the judgment and award dated 23.3.2011, made by the Motor Accident Claims Tribunal, Kinnaur Civil Division, at Rampur Bushahr, H.P. in MAC Petition No. 35 of 2006, titled Smt. Shetu Devi and others versus The Oriental Insurance Co. Ltd. and another, for short “the Tribunal”, whereby compensation to the tune of Rs.7,90,500/- alongwith interest @ 7.5% per annum, came to be awarded in favour of the claimants and insured came to be saddled with the liability, hereinafter referred to as “the impugned award”, for short. 2. Claimants had sought compensation by the medium of claim petition before the Tribunal, which was later on amended. 3. Respondents filed the replies to the amended claim petition and following issues came to be framed. (i) Whether the deceased Raj Kumar died on 24.3.2006 at Battly Nallah near Ranabagh due to rash and negligent driving of the driver of vehicle No. HP-63-0674, as alleged? OPP. (ii) Whether the petitioners are entitled for compensation, if so, what amount of and from whom? OPP. (iii) Whether the deceased was travelling as gratuitous passenger ion the vehicle and whole liability is not covered nor any premium has been charged in respect of gratuitous/unauthorized passengers as per the insurance policy and thus respondent NO. 1 is not liable to indemnify the insured OPR-1. (iv) Whether the driver of the offending vehicle was not possessing a valid and effective driving license at the time of the accident and respondent NO. 1 is not liable to pay any claim OPR-1. (v) Whether respondent NO. 1 is not liable to indemnify insured as there was violation of the mandatory terms and conditions of the insurance policy OPR-1. (vi) Whether the petition is not maintainable on behalf of the petitioners as the petitioners are not the legal heirs of the deceased OPR-2. (vii) Relief. 4. There is no dispute viz-a-viz issues No. 1 and 2, except “from whom” and issue No. 6. The only dispute revolves around issues No. 3 to 5. The Tribunal has fallen in an error in deciding issue No. 3 for the following reasons. 5. It is the specific case of the claimants that the deceased was travelling in the offending vehicle alongwith the goods. Owner and driver while filing replies have admitted that the deceased was travelling in the offending vehicle with the goods. The Tribunal has fallen in an error in deciding issue No. 3 for the following reasons. 5. It is the specific case of the claimants that the deceased was travelling in the offending vehicle alongwith the goods. Owner and driver while filing replies have admitted that the deceased was travelling in the offending vehicle with the goods. The claimants have led evidence and have proved that the deceased was travelling in the offending vehicle as owner of the goods. However, the insurer has not led any evidence to prove that the deceased was a gratuitous passenger. Accordingly, it is held that the deceased was not a gratuitous passenger but was travelling in the offending vehicle alongwith goods. Issue No.4. 6. The insurer has not questioned the findings returned by the Tribunal on issue No. 4. However, I have gone through the record. It is proved that the driver was having a valid and effective driving licence. Thus, the owner has not committed any willful breach. Accordingly, the findings returned by the Tribunal on this issue are upheld. Issue No.5. 7. The Tribunal has recorded the findings on this issue in favour of the owner/insured but has stated that since the finings on issue No. 3 are against the owner thus, issue No. 5 was also decided against the insured which is not legally correct. The positive findings of the Tribunal are in para 18, perusal whereof does reveal that the owner has not committed any willful breach. Viewed thus, the findings recorded in concluding para 18 of the impugned award are set aside and issue No. 5 is decided against the insurer. 8. The factum of insurance is admitted and the insurer is saddled with the liability. 9. The insurer is directed to deposit the amount within eight weeks from today. On deposit, the Registry is directed to release the awarded amount in favour of the claimant, through payees’ cheque account or by depositing the same in their bank accounts. 10. Out of the entire amount of compensation, Rs.1,50,000/- be released in favour of claimant No.1 and rest of the amount be released in favour of claimants No. 2 to 4 in equal shares. 11. The statutory amount of Rs.25,000/- deposited by the appellant is paid as cost in favour of the claimants. 12. Viewed thus, the appeal is allowed and the impugned award is modified, as indicated hereinabove. 13. 11. The statutory amount of Rs.25,000/- deposited by the appellant is paid as cost in favour of the claimants. 12. Viewed thus, the appeal is allowed and the impugned award is modified, as indicated hereinabove. 13. Send down the record forthwith, after placing a copy of this judgment.