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2016 DIGILAW 2127 (HP)

National Insurance Co. Ltd. v. Pushpa Devi

2016-09-30

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. 1. The awards, impugned in these appeals, passed by Motor Accident Claims Tribunal, Kullu, H.P., (for short, the Tribunal), are the outcome of one accident caused by the driver, while driving Trax Jeep bearing registration No.HP-49A-1739, rashly and negligently, on 26th September, 2010. Therefore, both these appeals are clubbed and are being disposed of by this common judgment. 2. Facts of the case, in brief, as pleaded by the claimants in both the claim petitions, are that on 26th September, 2010, deceased, namely, Partap Singh and Anil Kumar hired Trax Jeep bearing registration No.HP-49A-1739, for carrying fruits from their houses to Subzi Mandi and when the said vehicle reached near Kotladhar Public Highway, a landslide occurred due to which Partap Singh and Anil Kumar, including the driver of the offending vehicle, lost their lives. 3. The claimants/legal representatives of deceased Partap Singh filed Claim Petition No.31 of 2010, titled Pushpa Devi and others vs. Teja Singh and another, (subject matter of FAO No.49 of 2012), claiming compensation to the tune of Rs.20.00 lacs, as per the break-ups given in the claim petition. 4. The claimants/legal representatives of deceased Anil Kumar invoked the jurisdiction of the Tribunal by filing Claim Petition No.37 of 2010, titled Ruma Devi and others vs. Teja Singh and another, whereby compensation to the tune of Rs.20.00 lacs was claimed, (subject matter of FAO No.51 of 2012). 5. Both the claims petitions were resisted by the respondents, by filing replies. 6. On the pleadings of the parties, the Tribunal framed almost similar issues in both the claim petitions. Issues framed in Claim Petition filed by the dependants of deceased Partap Singh i.e. Claim Petition No.31 of 2010, titled Pushpa Devi and others vs. Teja Singh and another, are reproduced herein below: ?1. Whether Sh.Partap Singh died in an accident on 26.9.2010 around 8.15 a.m. at place Kotladhar Road, Kullu involving Jeep bearing No.HP-49A-1739 being driven by deceased Keshav Ram in a rash and negligent manner? OPP 2. If issue No.1 is proved in affirmative, for what amount of compensation the petitioners are entitled and from whom? OPP 3. Whether the driver of the vehicle No.HP-49A-1739 was not having valid and effective driving licence to drive the vehicle in question, if so, its effect? OPR-2 4. OPP 2. If issue No.1 is proved in affirmative, for what amount of compensation the petitioners are entitled and from whom? OPP 3. Whether the driver of the vehicle No.HP-49A-1739 was not having valid and effective driving licence to drive the vehicle in question, if so, its effect? OPR-2 4. Whether the vehicle in question was being plied in contravention of the provisions of Motor Vehicles Act and contract of insurance, if so, its effect? OPR-2 5. Whether deceased Shri Partap Singh was gratuitous passenger in the vehicle No.HP-49A-1739 at the time of accident, if so, its effect? OPR-2 6. Whether the petitioners are not legal heirs of deceased Sh.Partap Singh? OPR-2 7. Relief.? 7. Parties led evidence. The Tribunal, after appreciating the pleadings of the parties and the evidence adduced, allowed both the claim petitions vide the awards impugned in the instant appeals and awarded compensation, in each claim petition, to the tune of Rs.4,80,800/-, alongwith interest at the rate of 9% per annum, in favour of the claimants, and the insurer was saddled with the liability. 8. Feeling aggrieved, the insurer has questioned the impugned awards by the medium of instant appeals. 9. I have heard the learned counsel for the parties and gone through the record. 10. During the course of hearing, the learned counsel for the insurer argued that the Tribunal has fallen into an error in saddling the insurer with the liability inasmuch as the deceased were traveling in the offending vehicle as gratuitous passengers. Thus, it was submitted that the owner had committed willful breach of the terms and conditions of the insurance policy, therefore, he was liable to be saddled with the liability and not the insurer. 11. On the other hand, the learned counsel for the insured supported the impugned awards for the reasons given therein. 12. Thus, the only question to be determined in both the appeals is – Whether the insurer came to be rightly saddled with the liability. 13. To determine the said question, a brief reference may be made to the pleadings of the parties. 14. The claimants in paragraph 10 of the Claim Petition No.31 of 2010 (subject matter of FAO No.49 of 2012) have specifically pleaded that, on the fateful day, the deceased was traveling in the offending vehicle alongwith fruits which he was taking from Jhibhi to Banjar Market. 14. The claimants in paragraph 10 of the Claim Petition No.31 of 2010 (subject matter of FAO No.49 of 2012) have specifically pleaded that, on the fateful day, the deceased was traveling in the offending vehicle alongwith fruits which he was taking from Jhibhi to Banjar Market. It is apt to reproduce paragraph 10 of the claim petition hereunder: ?No. The deceased was traveling in the ill-fated vehicle and was carrying fruits in it from Jhibhi to Banjar Market.? 15. Owner of the offending vehicle filed reply to the claim petition, wherein it has been admitted that the deceased was traveling in the vehicle on the fateful day. It is apt to reproduce paragraph 10 of the reply filed by the owner to the claim petition, hereunder: ?That para No.10 of the claim petition is correct to the extent that the deceased was traveling in the vehicle, but rest of the para is wrong and hence denied and the petitioner be put to strict proof of the same.? 16. Similar are the averments in the other Claim Petition, therefore, are not being referred to for the sake of brevity. 17. The owner of the offending vehicle while appearing as RW-3 has stated that the deceased Partap Singh and Anil Kumar were carrying the apple crates for selling the same in Subzi Mandi Banjar. The Tribunal, in both the claim petitions, after referring to the evidence has held that the deceased were traveling in the offending vehicle as owners of the goods and not as gratuitous passengers. It was also observed by the Tribunal that the seating capacity of the offending vehicle, including driver, was three. The said findings recorded by the Tribunal are borne out from the records, are liable to be upheld. 18. 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 and that the owner has committed willful breach of the terms and conditions contained in the insurance policy, has not led any evidence to prove the said factum. On the contrary, it is seen from the records that the driver of the offending vehicle was having a valid and effective driving licence at the time of accident. 19. The questions of rashness and negligence, and adequacy of compensation are not in dispute. 20. On the contrary, it is seen from the records that the driver of the offending vehicle was having a valid and effective driving licence at the time of accident. 19. The questions of rashness and negligence, and adequacy of compensation are not in dispute. 20. Accordingly, the findings returned by the Tribunal, on all the issues, in both the claim petitions, are upheld. 21. However, the Tribunal has fallen into an error in awarding interest at the rate of 9% per annum. It is 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 Supreme Court Cases 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 Supreme Court Cases 738; Smt. Savita versus Binder Singh & others, reported in 2014 AIR SCW 2053; Kalpanaraj & Ors. 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 Supreme Court Cases 433, and Mohinder Kaur and others versus Hira Nand Sindhi (Ghoriwala) and another, reported in (2015) 4 Supreme Court Cases 434, and discussed by this Court in a batch of FAOs, FAO No. 256 of 2010, titled as Oriental Insurance Company versus Smt. Indiro and others, being the lead case, decided on 19.06.2015. 22. Having said so, it is held that the amount of compensation shall carry interest at the rate of 7.5% per annum from the date of filing of the claim petitions till the deposit thereof. 23. In view of the above discussion, the impugned awards are modified, as indicated above, and the appeals filed by the insurer are allowed to the above extent. 24. The Registry is directed to release the amount in favour of the claimants forthwith through their respective bank accounts, strictly in terms of the conditions contained in the impugned awards and the excess amount, if any, be refunded to the insurer through payees' account cheque. 25. Both the appeals stand disposed of accordingly.