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2016 DIGILAW 71 (HP)

Safdar Ali v. Raj Kumar

2016-01-08

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is the award, dated 17th March, 2009, made by the Motor Accident Claims Tribunal, Mandi, H.P. (hereinafter referred to as “the Tribunal”) in Claim Petition No. 35 of 2007, titled Shri Raj Kumar versus Shri Safdar Ali & others, whereby compensation to the tune of Rs.2,55,500/- with interest @ 7.5% per annum from the date of filing of the claim petition till its realization, was awarded in favour of the claimant-respondent No. 1 herein and the insurer respondent No. 5 was directed to satisfy the award, with right of recovery to the extent of half of the awarded amount from the owner/insured and driver (hereinafter referred to as the “impugned award”). 2. The claimant and insurer have not questioned the impugned award, on any count. Thus, it has attained finality so far it relates to them. 3. Only the insured-owner and driver of the offending vehicle have questioned the impugned award on the ground that the Tribunal has fallen in an error in granting right of recovery to the insurer. 4. Learned Counsel for the appellants argued that the Tribunal has wrongly decided issue No. 3 for the reason that the driver was having valid and effective driving licence at the time of accident. 5. I have examined the entire record. 6. The unladen weight of the offending vehicle i.e. Swaraj Mazda bearing registration No. HP-31B-0335, is 2800 kilogram, which as per Section 2(21) of the Motor Vehicles Act, 1988, for short ‘MV Act’, falls within the definition of ‘light motor vehicle’. The driving licence of the driver of the offending vehicle is on the record as Ext. R.B, the perusal of which does disclose that the driver of the offending vehicle was having a valid and effective driving licence to drive a ‘light motor vehicle’ 7. This Court in Smt. Anita and others versus The Truck Co Co-operative and Operator Goods Carrier Transport Society Ltd. and others reported in Latest HLJ 2015 (HP) 652 and catena of judgments, has laid down the same principle. 8. The learned Counsel for the insurer was asked to show how he would defend the impugned award, but he failed to do so. 9. 8. The learned Counsel for the insurer was asked to show how he would defend the impugned award, but he failed to do so. 9. Having said so, the Tribunal has fallen in an error in holding that the driver of the offending vehicle was not having valid and effective driving licence to drive the same. 10. Viewed thus, it is held that the driver was having valid and effective driving licence and owner has not committed any breach. 11. It was for the insurer to plead and prove that the owner of the offending vehicle has committed willful breach of the terms and conditions of the insurance policy, has failed to do so. 12. The factum of insurance is not in dispute. Accordingly, the findings returned by the Tribunal on issue No. 3 are set aside. The insurer has to satisfy the entire liability. 13. At this stage, learned Counsel for the appellants stated at the Bar that the appellants have already deposited 50% of the awarded amount before the Tribunal, which stands already released in favour of the insurer by the Tribunal. 14. The insurer is directed to refund the said amount to the appellants through payees’ account cheque or by depositing the same in their accounts. 15. Accordingly, the impugned award is modified, as indicated hereinabove and the appeal is disposed of. 16. Send down the record after placing copy of the judgment on the Tribunal’s file.