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2017 DIGILAW 62 (HP)

Oriental Insurance Co. Ltd. v. Jeewan Lata

2017-01-13

MANSOOR AHMAD MIR

body2017
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 29th August, 2011, passed by the Motor Accident Claims Tribunal, Una, District Una, H.P., (for short, “the Tribunal”) in Claim Petition No.8 of 2010, titled Jeewan Lata and another vs. Amit Sharma and another, whereby the claim petition was allowed and compensation to the tune of Rs.6,90,000/-, with interest at the rate of 8% per annum, from the date of filing of the claim petition till deposit, came to be awarded in favour of the claimants and the insurer was saddled with the liability, (for short the “impugned award”). 2. The claimants, the owner and driver have not questioned the impugned award on any ground, thus the same has attained finality qua them. Feeling aggrieved, the insurer has challenged the impugned award by the medium of instant appeal on the grounds taken in the memo of appeal. 3. Facts of the case, in brief, are that on 6th September, 2007, at about 10.00 p.m., deceased Munish Kumar was going to his house on motorcycle No. HP-19A-5025. When he reached near Deep Hospital, Ludhiana, original respondent No.1, namely, Amit Sharma, while driving motorcycle No.PB-10-BS(Temp) 1445 rashly and negligently, hit the motorcycle of the deceased as a result of which the deceased sustained injuries and succumbed to the same lateron. Hence, the claim petition filed by the claimants claiming compensation to the tune of Rs.1.00 crore. 4. The claim petition was resisted by the respondents by filing replies. On the pleadings of the parties, the Tribunal framed the following issues: “1. Whether Sh.Munish Kumar had died on account of rash and negligent driving of vehicle No.PB-10-DS (Temp) 1445 by respondent No.1? OPP 2. If issue No.1 is proved, to what amount of compensation and from whom are the petitioners entitled to? OPP 3. Whether the respondent No.1 had not been in possession of a valid and effective driving licence at the time of the accident. If so, with what effect? OPR-2 4. Relief.” 5. In order to prove their claim, the claimants examined PW-1 Jaswant Singh and PW-2 HC Sukhdev and claimant No.2 Madan Lal appeared into the witness box as PW-3. On the other hand, the insurer and the driver and owner have not examined any witness. 6. Heard learned counsel of the parties and gone through the record. Issue No.1 7. In order to prove their claim, the claimants examined PW-1 Jaswant Singh and PW-2 HC Sukhdev and claimant No.2 Madan Lal appeared into the witness box as PW-3. On the other hand, the insurer and the driver and owner have not examined any witness. 6. Heard learned counsel of the parties and gone through the record. Issue No.1 7. The claimants have specifically averred in the claim petition that the accident had taken place due to the rash and negligent driving of Amit Sharma, original respondent No.1. To prove the said factum, the claimants have examined PW-1 Jaswant Singh who has stated that the accident had taken pace due to the rash and negligent driving of Amit Sharma. Copy of the FIR has been proved on record as Ext.PW-2/A, registered against Amit Sharma. PW-2 HC Sukhdev Singh has stated that after investigation challan has been presented before the court of competent jurisdiction against Amit Sharma. The insurer has not led any evidence, thus, the evidence led by the claimants has remained un-rebutted. There is sufficient material on record to hold, prima facie, that the accident was the outcome of rash and negligent driving of Amit Sharma. 8. The Tribunal, after examining the pleadings and the evidence on record, has rightly held that on the fateful day, Amit Sharma had driven the offending vehicle rashly and negligently and had caused the accident. Therefore, the findings returned by the Tribunal on issue No.1 are upheld. 9. Before issue No.2 is taken up, I deem it proper to deal with issue No.3. Issue No.3 10. Onus to prove this issue was on the insurer, has not led any evidence, thus, has failed to discharge the onus. The insurer has failed to prove that Amit Sharma, original respondent No.1, was not having a valid and effective driving licence at the time of accident. 11. It is beaten law of the land that the insurer has to plead and prove that the owner of the offending vehicle has committed willful breach of the terms and conditions contained in the policy, has failed to do so. 12. Viewed thus, the findings returned by the Tribunal on this issue are also upheld. Issue No.2 13. There is no dispute about the adequacy of compensation. Accordingly, the compensation assessed by the Tribunal is maintained. Factum of insurance is admitted. 12. Viewed thus, the findings returned by the Tribunal on this issue are also upheld. Issue No.2 13. There is no dispute about the adequacy of compensation. Accordingly, the compensation assessed by the Tribunal is maintained. Factum of insurance is admitted. Therefore, the Tribunal has rightly held insurer liable to pay the compensation. 14. Having said so, the impugned award is upheld and the instant appeal is dismissed. The Registry is directed to release the award amount in favour of the claimants forthwith, strictly in terms of the impugned award, through their bank accounts or through payees’ account cheque.