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2019 DIGILAW 1719 (HP)

Kumari Pooja v. Tot Ram

2019-11-15

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Instant appeal filed under S.173 of the Motor Vehicles Act (hereinafter, 'Act') is directed against Award dated 28.5.2011 passed by learned Motor Accidents Claims Tribunal, Kullu, District Kullu, Himachal Pradesh in Claim Petition No. 21 of 2011, titled Kumari Pooja and another vs. Tot Ram and others, whereby claim petition having been filed by the appellants-claimants (hereinafter, 'claimants') came to be dismissed. 2. Briefly stated the facts of the case, as emerge from the record, are that on 4.5.2011, a car bearing registration No. HP34A-5283, in which deceased Lata Devi was sitting, rolled down, as a consequence of which, above noted person sustained multiple grievous injuries and subsequently succumbed to her injuries. Claimants, who happen to be children of above named deceased, by way of claim petition, claimed compensation to the tune of Rs.15.00 Lakh on account of death of their mother. Claimants alleged that at the time of alleged incident, deceased was hale and hearty and was earning Rs.15,000/- from her business besides doing agricultural work. Claimants claimed that they being solely dependent upon the deceased, have been deprived of love and affection due to untimely death of the deceased and they have also suffered great loss as such, they are entitled to compensation. 3. Respondent No.1, who happened to be father of the claimants and husband of the deceased, though admitted the factum with regard to the accident and death of the deceased, however, specifically denied that the FIR has been registered on wrong and concocted facts. Respondent No.1 also admitted the income and occupation of deceased as claimed in the claim petition. Though, respondent No.2, who happened to be driver of the vehicle in question, filed a separate reply, but took the stand as taken by respondent No. 1. 4. Respondent No.3-Insurance Company refuted the claim of the claimants on the ground that at the time of accident, vehicle in question was not having requisite documents and driver was not having valid and effective driving licence. Insurance Company also denied the factum with regard to accident of the vehicle and claimed that the vehicle in question was being driven in violation of terms and conditions of the insurance policy, as such, it was not under any obligation to pay compensation to the claimants. Insurance Company also averred that the deceased was traveling in the vehicle in question as a gratuitous passenger. 5. Insurance Company also averred that the deceased was traveling in the vehicle in question as a gratuitous passenger. 5. Learned Tribunal below, on the basis of the pleadings of the parties, framed following issues: "1. Whether Smt. Lata Devi died in a motor accident on account of rash and negligent driving of respondent No.2? OPP 2. If issue No.1 is proved in affirmative, to what amount and at what rate of interest the petitioners are entitled for compensation? OPP 3. Whether respondent No.3 is liable to make the payment of compensation amount as indemnifier? OPP 4. Whether the vehicle in question was driven in breach of terms and conditions of insurance policy? OPR 5. Whether respondent No. 2 was not having valid and effective driving licence.? OPR-3 6. Relief." 6. Vide impugned Award, learned Tribunal below, dismissed the claim petition filed by the claimants being not maintainable, against which they have approached this Court in the instant proceedings. 7. Having heard learned counsel for the parties and perused the material available on record, vis- -vis reasoning assigned by learned Tribunal below, while passing impugned award, this Court finds no force in the argument of Mr. Raju Ram Rahi, Advocate, appearing for the claimants that learned Tribunal below has erred in not awarding any compensation in favour of the claimants, because, material on record nowhere suggests that the claimants, who otherwise are closely related to respondent No.1 and deceased, succeeded in proving the negligence, if any, of respondent No.2, who otherwise happened to be brother of the deceased. Record clearly reveals that the claimants failed to place on record, copy of FIR, rather, learned Tribunal below, with a view to ascertain the factum with regard to the accident, ordered for placing on record documents including FIR. Perusal of the accident report reveals that the FIR was lodged on the basis of statement of Hari Singh, respondent No.2, who happened to be real brother of the deceased Lata Devi and brother-in-law of respondent No.1. Above named person, Hari Singh, informed the Police that respondent No.1, Tot Ram, is the owner of the vehicle and accident took place due to negligence of deceased herself, as she pulled the handbrakes and gear. Above named person, Hari Singh, informed the Police that respondent No.1, Tot Ram, is the owner of the vehicle and accident took place due to negligence of deceased herself, as she pulled the handbrakes and gear. Though, the FIR as taken note herein above never came to be proved in accordance with law, but otherwise also, contents of the same are of no help to the claimants, rather, the same completely belie the story put forth by the claimants that the deceased died on account of the negligence of respondent No.2. Had the claimants pleaded and proved that the accident was outcome of the rash and negligent driving, claim petition under S.166 of the Act would have been maintainable as the same is a sine qua non for maintaining a claim petition seeking compensation in terms of provisions of S.166 of the Act. (See: New India Assurance Company vs. Sada Nand Mukhi and others, (2009) 2 SCC 417 ) 8. Leaving everything aside, careful perusal of Insurance Policy, Ext. RX, clearly reveals that the vehicle in question was insured only for third party risk of owner and respondent No.3 being owner did not pay any additional premium so as to cover the occupants, if any, of the vehicle. Mr Raju Ram Rahi, learned counsel for the claimants was unable to dispute that vide insurance policy, Ext. RX, vehicle in question was insured only for third party risk and as such, no fault, if any, can be found with the findings recorded by learned Tribunal below qua aforesaid aspect of the matter. 9. Though, the material placed on record suggests that the deceased was sitting in the vehicle at the time of alleged accident, but as has been taken note herein above, she was wife of the owner of vehicle. Learned Tribunal below, rightly came to the conclusion that she cannot be considered to be a 'third party'. Findings recoded by learned Tribunal below qua aforesaid aspect of the matter are duly supported by judgment rendered by Hon'ble Apex Court in New India Assurance Company vs. Sada Nand Mukhi and others, (2009) 2 SCC 417 . As per aforesaid judgment passed by Hon'ble Apex Court, insurance company cannot be compelled to indemnify the owner qua the person, whose risk was not separately covered. 10. As per aforesaid judgment passed by Hon'ble Apex Court, insurance company cannot be compelled to indemnify the owner qua the person, whose risk was not separately covered. 10. There is yet another aspect of the matter i.e. in the case at hand, as referred in para-12 of the Award itself, accident occurred on account of negligence of the deceased and as such, claim petition filed by claimants seeking therein compensation on account of death of deceased is/was not competent itself. 11. A coordinate Bench of this Court in Oriental Insurance Company Limited vs. Brahmi and others, (2017) 1 ShimLC 90 , has categorically held that to seek compensation in terms of S.166 of the Act, proof of negligence is necessary for saddling the owner or the insurance company with the liability. In the case at hand, evidence clearly reveals that the deceased was herself negligent, as such, no compensation, if any, can be awarded in favour of the claimants, who claim themselves to be the dependents of the deceased, on account of death of the deceased herself. Following paras of the judgment (supra), may be relevant to the facts of present case: "13. Had the claimants pleaded and proved that the accident was outcome of the rash and negligent driving, the claim petition under Section 166 of the MV Act would have been maintainable, as the rash and negligent driving is sine qua non for maintaining a claim petition seeking compensation in terms of the provisions of Section 166 of the Act. 14. My this view finds support from the judgment rendered by the Apex Court in the case titled as Minu B. Mehta v. Balkrishna Ramchandra Nayan, (1977) AIR SC 1248 , wherein it has been held that in a motor accident claim case, the proof of negligence is necessary for saddling the owner or the insurance company with liability. It is apt to reproduce para 36 of the judgment herein: "36. In a recent judgment of Madras High Court a Division Bench in A. A. O. Nos. 607 of 1973 and 296 of 1974 M/s. Ruby Insurance Co. Ltd. v. V. Govindaraj, delivered on 13 December, 1976 has suggested the necessity of having social insurance to provide cover for the claimants irrespective of proof of negligence to a limited extent say Rs. 250 to Rs. 300 a month. 607 of 1973 and 296 of 1974 M/s. Ruby Insurance Co. Ltd. v. V. Govindaraj, delivered on 13 December, 1976 has suggested the necessity of having social insurance to provide cover for the claimants irrespective of proof of negligence to a limited extent say Rs. 250 to Rs. 300 a month. It has also suggested that instead of a lump sum payment which does not often reach the claimants a regular monthly payment to the dependants by the nationalsied insurance company or bank would be desirable. Unless these ideas are accepted by the legislature and embodied in appropriate enactments Courts are bound to administer and give effect to the law as it exists today. We conclude by stating that the view of the learned judges of the High Court has no support in law and hold that proof of negligence is necessary before the owner or the insurance company could be held to be liable for the payment of compensation in a motor accident claim case." (Emphasis added) 15. The correctness of the judgment in Minu B. Mehta's case (supra) came up for consideration before the Apex Court in the case titled as Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234 , wherein it was held that the observations made by the Apex Court in Minu B. Mehta's case (supra) were in the nature of obiter dicta. 22. The legal representatives of deceased-Desh Raj have not taken plea of rash and negligent driving for the reasons best known to them, which, as discussed hereinabove, is sine qua non for maintaining claim petition under Section 166 of the MV Act. 23. Having said so, the claim petition under Section 166 of the MV Act was not maintainable. 12. In the case at hand, pleadings placed on record clearly reveal that the claimants have neither pleaded nor proved the negligence on the part of the driver, respondent No. 2, which otherwise is a sine qua non for maintaining a petition under S.166 of the Act, as such, learned Tribunal below rightly held the petition to be not maintainable. 13. Consequently, in view of above, present appeal is dismissed being devoid of any merit, along with all pending applications, if any. Impugned award passed by learned Tribunal below is upheld.