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2016 DIGILAW 284 (HP)

National Insurance Co. Ltd. v. Dhaman Dutt Sharma

2016-03-18

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 14th September, 2009, passed by the Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P., (for short, the Tribunal), in Claim Petition No.86-MAC/2 of 2005, titled Dhaman Dutt Sharma vs. Rajesh Kumar and others, whereby compensation to the tune of Rs.5,90,000/- with 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 claimant and the insurer was saddled with the liability, (for short, the impugned award). 2. The claimant, the owner and the driver have not questioned impugned award on any count, therefore, the same has attained finality so far as it relates to them. 3. Feeling aggrieved, the insurer has challenged the impugned award by the medium of instant appeal, on two grounds, namely – i) Risk of second driver was not covered; and ii) The impugned award has been passed contrary to the facts of the case. 4. Thus, the only question to be determined in this appeal is – Whether the insurer came to be rightly saddled with the liability? 5. It is the admitted case of the parties that the offending vehicle was duly insured. The owner and the driver (original respondents No.1 and 2) have filed the reply to the claim petition, wherein, in paragraphs 1 and 3, they have specifically stated that the claimant, on the day of accident, was performing the duties of conductor-cum-cleaner. It is apt to reproduce paragraphs 1 and 3 of the reply hereunder: “1. That the introductory para contents are admitted so far as the accident is concerned. However, the petitioner was not a traveler on the ill fated truck. He was on his duty as conductor cum cleaner. Seriatim wise reply to particulars of claim petition is given as here-in-below:- …………………. ……………. ………….. 3. Para No.4 of the petition is denied being incorrect. The petitioner was employed as conductor-cum-cleaner on the truck. It is specifically denied that he was a co driver.” 6. No doubt, the claimant has pleaded in the Claim Petition that he was traveling in the offending vehicle as second driver, but, when he appeared in the witness box as PW-1, he clearly stated that, on the day of accident, he was traveling in the said vehicle as conductor. It is specifically denied that he was a co driver.” 6. No doubt, the claimant has pleaded in the Claim Petition that he was traveling in the offending vehicle as second driver, but, when he appeared in the witness box as PW-1, he clearly stated that, on the day of accident, he was traveling in the said vehicle as conductor. The statement of the claimant as PW-1 has remained un-rebutted. He was cross examined at length, but the insurer was not able to extract anything which could adversely affect the case of the claimant. 7. Respondent No.1 i.e. the driver of the offending vehicle appeared into the witness box as RW-1, who, instead of supporting the case of the insurer, has supported the case set up by the claimant. To draw an inference that the owner had committed willful breach, it was imperative for the insurer to plead and prove by leading evidence that the claimant was not working as conductor on the offending vehicle, at the time of accident, but was working as codriver or second driver, or that the claimant was traveling in the offending vehicle as gratuitous passenger, which fact was never proved by the insurer. Therefore, the insurer has not discharged the onus cast upon it. 8. In view of the above, the arguments advanced by the learned counsel for the appellant are repelled, being devoid of any force. 9. As far as amount of compensation is concerned, the same cannot be said to be excessive in any way, rather the same appears to be meager. However, the claimant has not questioned the impugned award on that count. Therefore, the impugned award is reluctantly upheld. 10. Having said so, the appeal merits to be dismissed and the same is dismissed. As a consequence, the impugned award is upheld. 11. The Registry is directed to release the amount in favour of the respective claimants, alongwith interest accrued thereon, forthwith, after proper identification.