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2016 DIGILAW 780 (HP)

Oriental Insurance Company Ltd. v. Jamlu Ram

2016-05-13

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award and judgment, dated 17th May, 2008, made by Motor Accident Claims Tribunal, Kinnaur at Rampur Bushar, H.P., (for short, “the Tribunal”) in M.A.C. Petition No.103 of 2005, titled Shri Jamlu Ram vs. Shri Akash Sharma & others, whereby a sum of Rs.1,19,370/- alongwith interest at the rate of 7.5% per annum came to be awarded as compensation 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 the impugned award on any count. Thus, the same has attained finality so far it relates to them. 3. The claimant has filed the claim petition for grant of compensation to the tune of Rs.1,50,000/- as per break-ups given in the claim petition. 4. The respondents resisted the claim petition and following issues came to be framed in the claim petition “1. Whether the apple boxes belonging to the petitioner were damaged in a motor accident caused on 10-9-2004 at village Ghrola (Janu Nallah) due to rash and negligent driving of truck No.HP-63-2333 by its driver, respondent No.2? OPP. 2. If issued No.1 is proved in the affirmative to what amount of compensation the petitioner is entitled and from whom? OPP. 3. Whether the petition is not maintainable in the present form? OPR-3 4. Whether the petition has been filed in collusion with respondent No.1, as alleged? OPR-3. 5. Whether the driver of the vehicle in question was not holding a valid and effective driving licence at the time of the accident, as alleged? OPR-3. 6. Whether the vehicle in question was being plied in violation of the terms and conditions of the insurance policy at the time of the accident, as alleged? OPR-3. 7. Relief.” 5. The claimant has examined eight witnesses and stepped himself into the witness box. Smt. Kaushalya Chauhan (RW-1) and Shri Mahender Lal (RW-2) have been examined by the insurer. The owner and the driver appeared as RW-3 and RW-4, respectively and their statements were accordingly recorded. 6. The Tribunal after examining pleadings, evidence, oral as well as documentary, held that the apple boxes of the claimant were damaged in the accident caused by the driver, namely, Neer Chand while driving truck No.HP-63-2333 rashly and negligently. 7. The respondents have not led any evidence in rebuttal. 6. The Tribunal after examining pleadings, evidence, oral as well as documentary, held that the apple boxes of the claimant were damaged in the accident caused by the driver, namely, Neer Chand while driving truck No.HP-63-2333 rashly and negligently. 7. The respondents have not led any evidence in rebuttal. The respondents have not denied the said factum. Viewed thus, the findings returned on issue No.1 are upheld. 8. Before I deal with issue No.2, I deem it proper to deal with issues No.3 to 6. Issue No. 3. 9. It is for the insurer to discharge the onus, however, has not led any evidence, has failed to do so. The claimant has specifically pleaded in the claim petition that the accident was caused due to rash and negligent driving of the driver. In view of the above, the Tribunal has rightly recorded the findings on issue No.3. Accordingly, the findings returned on issue No.3 are upheld. Issue No. 4. 10. It was for the insurer to plead and prove that there was collusion between the claimant and owner. It has not led any evidence, thus, has failed to discharge the onus. Accordingly, the findings returned on issue No.4 are upheld. Issue No. 5. 11. The insurer has failed to lead any evidence in order to discharge onus. The Tribunal has rightly made discussion and the findings are upheld. Issue No. 6. 12. It was also for the insurer to prove that the insured-owner has committed the breach of the insurance policy. The insurance policy is on the file, which does disclose that the risk was covered. This Court in United India Insurance Company vs. Noor Dass and others, reported in 2005(1) Shim. L.C. 276 held that the insurer cannot be permitted to raise any challenge to the maintainability of the claim petition. Third party property was damaged. The risk of third party was covered. 13. The insurer has failed to prove that the risk was not covered. The factum of insurance policy is admitted. Having said so, the findings returned on issue No.6 are also upheld. 14. The Tribunal has awarded the meager amount, but unfortunately the claimant has not questioned the same and is reluctantly upheld. The appeal is dismissed. 15. Viewed thus, the impugned award is upheld. The factum of insurance policy is admitted. Having said so, the findings returned on issue No.6 are also upheld. 14. The Tribunal has awarded the meager amount, but unfortunately the claimant has not questioned the same and is reluctantly upheld. The appeal is dismissed. 15. Viewed thus, the impugned award is upheld. The Registry is directed to release the awarded amount in favour of the claimant, strictly in terms of the conditions contained in the impugned award through payees’ account cheque or by depositing the amount in his account. 16. Send down the records after placing a copy of the judgment on the Tribunal's file.