Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 60 (HP)

New India Assurance Co. Ltd. v. Leela Devi

2017-01-13

MANSOOR AHMAD MIR

body2017
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the judgment and award dated 6.3.2012, passed by the Motor Accident Claims Tribunal Hamirpur, District Hamirpur, H.P. hereinafter referred to as “the Tribunal”, for short, in MAC Petition No. 17 of 2010, titled Leela Devi and another versus Wattan Thakur and others, whereby compensation to the tune of Rs. 3,34,000/- alongwith interest @ 7.5% per annum was awarded in favour of the claimants and insurer came to be saddled with the liability, for short “the impugned award”, on the grounds taken in the memo of appeal. 2. Claimants, owner and driver have not questioned the impugned award on any ground, thus the same has attained the finality, so far as it relates to them. 3. Insurer has questioned the impugned award on the grounds taken in the memo of appeal. 4. Claimants have sought compensation by the medium of claim petition before the Tribunal as per the break-ups given therein, which was resisted by the respondents and following issues came to be framed. 1. Whether the death of Arvind Kumar was caused due to rash and negligent driving of vehicle No. HP-22-9786 (Mahindra Pick-up van) by respondent No.2, as alleged? OPP. 2. If Issue No. 1 is proved in affirmative whether the petitioners/claimants are entitled to compensation. If so to what amount and from whom? OPP. 3. Whether the petition is not maintainable as alleged? OPR-3. 4. Whether the respondent No. 2 was not holding a valid and effective driving licence to drive the vehicle in question at the time of accident? OPR-2. 5. Whether the vehicle in question was being plied without valid and effective Registration Certificate-cum-fitness certificate and Route permit at the relevant time? OPR-3. 6. Whether the deceased was travelling as a gratuitous passenger at the relevant time in the vehicle in question? OPR-3. 7. Relief. 5. Claimants have examined the witnesses and insurer has not examined any witness. Thus, the evidence led by the claimants have remained un-rebutted. 6. Learned counsel for the appellant argued; (i) That the claimants have failed to prove the rash and negligent driving by the driver and; (ii) That the driver was not holding a valid and effective driving licence at the time of accident. 7. Both these points revolve around Issues No. 1 and 4. However, I deem it proper to deal with all the issues. Issue No.1. 8. 7. Both these points revolve around Issues No. 1 and 4. However, I deem it proper to deal with all the issues. Issue No.1. 8. Claimants have led evidence to prove that the driver, namely, Purshotam Chand, has driven the offending vehicle bearing registration No. HP-22-9786 (Mahindra Pick-up van) rashly and negligently in which deceased Arvind Kumar sustained the injuries and succumbed to the same. It is apt to record herein that neither the driver nor the owner have questioned the said findings, how the insurer can question the said findings. There is no rebuttal to the evidence led by the claimants. The Tribunal has rightly determined Issue No.1. Thus, the findings returned by the Tribunal on Issue No.1 are upheld. 9. Before dealing with Issue No. 2, I deem it proper to deal with issue No. 4. Issue No.4. 10. It was for the insurer to prove this issue, has not led any evidence thus, has failed to discharge the onus. The driver was having HTV licence at the time of accident which was valid and effective and how can it be said that the driver was not having a valid and effective driving licence at the time of accident. The Tribunal has rightly made the discussion in para 9 of the impugned award, needs no interference. Accordingly, the findings returned by the Tribunal on this issue are upheld. Issues No. 3, 5 and 6. 11. It was for the insurer to lead evidence, has not led any evidence thus, has failed to discharge the onus. The Tribunal has rightly recorded the findings. Having said so, the insurer has failed to prove that the owner and driver have committed willful breach and accident was not outcome of rash and negligent driving by the driver. Thus, the findings returned by the Tribunal on these issues are upheld. Issue No.2. 12. The insurer has not questioned the adequacy of compensation. Accordingly, the findings returned by the Tribunal on this issue are upheld. 13. Viewed thus, the appeal fails, is accordingly dismissed and the impugned award is upheld. 14. The Registry is directed to release the amount in favour of the claimants, strictly in terms of the conditions contained in the impugned award, through payees’ cheque account, or by depositing the same in their bank accounts, after proper verification. 15. Send down the record forthwith, after placing a copy of this judgment.