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Himachal Pradesh High Court · body

2016 DIGILAW 68 (HP)

National Insurance Company Limited v. Kiran Bala

2016-01-08

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is the judgment and award, dated 25.04.2009, made by the Motor Accident Claims Tribunal(I), Kangra at Dharamshala, H.P. (for short "the Tribunal") in M.A.C.P. No. 2K/II-2005, titled as Kiran Bala and others versus Amit and others, whereby compensation to the tune of Rs.4,95,742/- with interest @ 9% per annum from the date of the claim petition till its deposition came to be awarded in favour of the claimants and against the respondents (Amar Jeet Singh) (for short "the impugned award"). 2. The claimants have invoked the jurisdiction of the Tribunal, by the medium of claim petition, for grant of compensation on the grounds taken in the memo of the claim petition, was resisted by the respondents and the following issues came to be framed by the Tribunal: "1. Whether Sh. Deepak Chaudhary died on 27.9.2004 due to rash and negligent driving of vehicle No. HP39 A5436 and PB02 L5035 being driven by respondents No. 1 & 3? OPP 2. If issue No. 1 is proved in the affirmative, whether the petitioners are entitled for compensation, if so, how much and from whom? OP Parties 3. Whether respondents No. 1 & 3 were not holding valid and effective driving licence at the time of alleged accident? OPR2 & 4 4. Whether the vehicles were not insured with respondent 2 & 4 respectively? OPR 2 & 4 5. Whether the petition is bad for non-joinder of necessary parties as alleged? OPR2, 3, & 4 6. Whether both the vehicles in question were being plied in violation of terms and conditions of insurance policies as alleged? OPR2& 4 7. Whether the deceased is liable for contributory negligence as alleged? OPR2 & 4 8. Whether the petition is collusive between the petitioners and respondents No. 1, 3 & 5 as alleged? OPR2 & 4 9. Relief." 3. Claimants examined HC Kuldeep Singh as PW1, Shri Raj Kumar as PW3 and one of the claimants, namely Shri Pancham Chand himself appeared in the witness box as PW2. The respondents have examined Shri Keshavanand, Shri Paramjit Singh and Shri Kewal Kumar as RW1, RW4 and RW5, respectively. Respondents, namely Shri Amit Kumar and Sudesh Kumar, themselves appeared in the witness box as RW2 and RW3. Parties have placed on record the documents, the details of which are given in Form-B of the impugned award. 4. The respondents have examined Shri Keshavanand, Shri Paramjit Singh and Shri Kewal Kumar as RW1, RW4 and RW5, respectively. Respondents, namely Shri Amit Kumar and Sudesh Kumar, themselves appeared in the witness box as RW2 and RW3. Parties have placed on record the documents, the details of which are given in Form-B of the impugned award. 4. The claimants, the drivers and the owners-insured of all the vehicles involved in the accident have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 5. One of the insurers, i.e. the insurer of motor cycle No. HP39 A5436, has questioned the impugned award on the ground that the Tribunal has fallen in error in saddling it with liability as the owners-insured of the offending vehicles have committed breach. 6. At the first instance, learned counsel for the appellant-insurer argued that the accident was outcome of contributory negligence, however, while advancing the arguments, argued that the owners-insured have committed breach. Issue No. 1: 7. The claimants have led evidence and proved that the drivers of the offending vehicles have driven the same rashly and negligently at the relevant point of time and caused the accident. The Tribunal, after discussing the statements of the witnesses, particularly PW2, Pancham Chand and PW3, Raj Kumar, came to the conclusion that the accident was outcome of contributory negligence. 8. The said finding has been recorded against the drivers and the owners-insured, but they have not questioned the same. Then, how can it lie in the mouth of the insurer that the said findings are not correct. 9. Having said so, the Tribunal has rightly made discussions and decided issues No. 1 and 7 in favour of the claimants. Accordingly, the findings returned by the Tribunal on issues No. 1 and 7 are upheld. 10. Before I determine issue No. 2, I deem it proper to decide issues No. 3 to 8. Issue No. 3: 11. The insurers have not led any evidence to prove that the drivers of the offending vehicles were not having a valid and effective driving licences. However, I have gone through the record and the impugned award and am of the considered view that the Tribunal has rightly made the discussions in para 22 of the impugned award. The insurers have not led any evidence to prove that the drivers of the offending vehicles were not having a valid and effective driving licences. However, I have gone through the record and the impugned award and am of the considered view that the Tribunal has rightly made the discussions in para 22 of the impugned award. Accordingly, it is held that the drivers of the offending vehicles were having valid and effective driving licences to drive the same and the findings recorded by the Tribunal on issue No. 3 are upheld. Issue No. 4: 12. Raising of such objections before the Tribunal and framing of such issue by the Tribunal is suggestive of the fact as to how the insurers are resisting the claim petitions, which is not their legal duty, their duty is to satisfy the damages within the four corners of the insurance policies. Learned counsel for the appellant-insurer frankly conceded that he is not pressing issue No. 4. However, I have gone through paras 24 and 25 of the impugned award. The said issue has rightly been decided in favour of the claimants and against the appellant. Accordingly, the findings returned by the Tribunal on issue No. 4 are upheld. Issue No. 5: 13. It was for the respondents in the claim petition to prove the said issue, have not led any evidence. I wonder how such an issue has been raised. The MV Act has gone through a sea change in the year 1994 and in terms of Sections 158(6) and 166(4) of the MV Act, even the police report can be treated as a claim petition. It appears that all the necessary parties have been arrayed as respondents by the claimants. It is averred that deceased Deepak Chaudhary, has died leaving behind the claimants as his legal representatives. Accordingly, the findings returned by the Tribunal on issue No. 5 are upheld. Issue No. 6: 14. It was for the insurers to plead and prove that the offending vehicles were being plied in violation of the terms and conditions of the insurance policies and the owners-insured have committed willful breach, have not led any evidence. However, I have gone through the record. There is not even a single iota of evidence on the file to suggest that the owners-insured of the offending vehicles have committed any willful breach. However, I have gone through the record. There is not even a single iota of evidence on the file to suggest that the owners-insured of the offending vehicles have committed any willful breach. Viewed thus, the findings returned by the Tribunal on issue No. 6 are upheld. Issue No. 7: 15. The findings returned on issue No. 1 also covers issue No. 7. Accordingly, issue No. 7 is also decided in terms of the discussions made by the Tribunal in para 29 of the impugned award and the finding returned by the Tribunal on issue No. 7 is upheld. Issue No. 8: 16. The insurers have failed to prove that there is collusion between the claimants, drivers and owners-insured of the offending vehicles. Accordingly, the findings returned by the Tribunal on issue No. 8 are upheld. Issue No. 2: 17. I have gone through the assessment made by the Tribunal and am of the considered view that the amount awarded is just and appropriate, cannot be said to be meager or excessive. However, it appears that the Tribunal has fallen in an error in awarding interest @ 9% per annum, which is at higher side in view of the law laid down by the Apex Court read with the rates of the Reserve Bank of India. Accordingly, it is held that the claimants are entitled to interest @ 7.5% per annum from the date of filing of the claim petition till its realization. 18. Having glance of the above discussions, the impugned award is modified and the appeal is disposed of, as indicated hereinabove. 19. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee's account cheque or by depositing the same to their respective bank accounts. 20. Excess amount, if any, be refunded back to the appellant-insurer through payee's account cheque or by depositing the same in its bank account. 21. Send down the record after placing copy of the judgment on Tribunal's file.