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2019 DIGILAW 271 (HP)

National Insurance Company Ltd. v. Niranjan Singh

2019-03-15

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The Insurer of the offending vehicle, has, instituted the instant appeal before this Court, where through, it, casts, a, challenge, upon, the award pronounced by the learned Motor Accident Claims Tribunal-II, Una, upon, MAC Petition No. 134 of 2014, whereunder, compensation amount comprised, in, a sum of Rs.23,16,300/- along with interest accrued thereon, at the rate of 9% per annum, and, commencing from, the date of petition till realization thereof, stood, assessed, vis-a-vis, the disabled claimant, and, the apposite indemnificatory liability thereof, was, fastened upon the insurer/appellant herein. On the other hand, the respondent No.3/cross objector also reared cross objections bearing CO No. 99 of 2018, against, the impugned award. 2. The learned tribunal, had, upon meteing reliance, upon a judgment of this Court rendered in a case titled as Ketal Singh v.s Bhag Devi and others, (2015) 5 ILR(HP) 1263, (a) wherein it stands expostulated qua (i) where, the, insurer has not led any evidence, and, rather has failed to prove, that, the offending vehicle stood plied, in violation of the route permit, and, hence, infringed the terms, and, conditions, as, contained in the apposite insurance policy, (ii) thereupon, concluded qua hence the afore ground, being not, a befitting exculpatory espousal, available for the insurer of the offending vehicle, (iii) and, the learned tribunal hence concluded, that, since the insurer was enjoined to plead, and, also enjoined to prove, that, the cause of the accident, is, a sequel of the peculiar geographical condition, prevailing in the State of H.P., where, the ill-fated accident took place, and, for hence in the impermissible plying, of, the ill-fated vehicle, within, the territory of the Himachal Pradesh, hence, occurred willful breach of the terms, and, conditions of the insurance policy. Reiteratedly, hence, for want, of, adduction, of, cogent proof by the insurer, that, in the plying of the offending vehicle, in a territory, in respect whereof, it held no valid permit to ply, hence, there being willful breach of the terms, and, conditions of the insurance policy, (iv) thereupon, rather the learned tribunal hence concluded, that, the tests contemplated, in, the afore judgment rather standing not satiated, and, hence fastened, the, apposite indemnificatory liability, upon, the insurer of the offending vehicle. 3. 3. The afore reasons, as, formed by the learned tribunal, stood, contested by the learned counsel appearing, for the insurer herein, by his placing reliance, upon, a judgment of this Court, rendered in a case titled as J.B. Pipes versus Madan Lal and others, (2008) ACJ 574, (a) wherein this Court while placing reliance, upon, a judgment of the Hon'ble Apex Court, had, concluded that the mere plying of the offending vehicle concerned, in a territory or area, in respect whereof, no valid route permit stands issued, rather ipso facto hence constituting violation of the terms, and, conditions of the insurance policy, (b) and, hence, no pleadings being enjoined to be reared, in proof thereof, and, also not enjoining adduction, of, evidence in respect thereof. 4. Be that as it may, at this stage, it may be unnecessary, to delve into the legal force, of, the above submission, (a) especially when the owner of the offending vehicle instituted cross-objections, bearing CO No. 99 of 2018, to, the impugned award, and, when therewith rather stands appended, an, application bearing CMP No. 10451 of 2018, as, cast under the provisions of Order 41, Rule 27 of the CPC. Furthermore, with the afore application, being, accompanied, by, Annexure CO-1, wherein a disclosure occur qua a national permit standing issued, vis-a-vis, the offending vehicle, and, the validity of the afore national permit being alive upto 10th September, 2014, hence, covering the date of mishap, which occurred prior thereto, inasmuch as, on 25.07.2014. When the case was listed for arguments, before this Court, the learned counsel for the appellant, did not, make any endeavour to contest the validity, of, the afore annexure, hence, the validity of the afore annexure acquire tremendous force. When the case was listed for arguments, before this Court, the learned counsel for the appellant, did not, make any endeavour to contest the validity, of, the afore annexure, hence, the validity of the afore annexure acquire tremendous force. Consequently, for lack of contest thereto by the learned counsel appearing for the insurer, this Court does not deem, it necessary to seek adduction here at, of, the apposite original, for, hence the afore photo copy, being there through hence proven (i) more especially when the claim petitions cast under Section 166 of the Motor Vehicles Act are triable summarily, and, when no strict proof, vis-a-vis, the issuance or qua the veracity of the afore annexure, appended with the afore application, is enjoined to elicited, (ii) rather when there, is, failure of contest, in respect of tenacity thereof, thereupon, this Court proceeds to take it on record, and, the afore application is allowed, it being just and essential, for, adjudicating the relevant factum probandum. This Court for afore reasons, hence, assigns probative vigour, to the afore Annexure CO-1, appended with the application cast, under the provisions of Order 41, Rule 27 of the CPC, and, also hence drives strength, from, the provisions borne in Order 41, Rule 28 of the CPC, provisions whereof stand extracted hereinafter:- "28. Mode of taking additional evidence.- Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court." (iii) wherein, it is permissible for the Appellate Court, to also, receive any oral or documentary evidence, in tandem therewith, (iv) and, conspicuously hence contra therewith afore decision relied, upon, by the counsel for the insurer, also stands denuded, vis-a-vis, its apt vigour, (v) thereupon, upon assigning credibility thereto, this Court, holds, that the offending vehicle concerned, at the relevant time, hence, holding the route permit, for its being plied, within, the territory of the Himachal Pradesh, hence, the fastening of the apposite indemnificatory liability, upon, the insurer of the offending vehicle, is, both apt and tenable. 5. The learned counsel appearing for the insurer, further contends that undisputedly the claimant, was a driver, and, in sequel to the disability pronounced in Ex.PW3/A, proven by PW-3, 100% functional disability, stood encumbered, upon, him. 5. The learned counsel appearing for the insurer, further contends that undisputedly the claimant, was a driver, and, in sequel to the disability pronounced in Ex.PW3/A, proven by PW-3, 100% functional disability, stood encumbered, upon, him. However, the learned counsel for the insurer, contends that when the learned tribunal, had assessed compensation, in a sum of Rs.1,00,000/-, under, the head "pain and suffering", vis-avis, the disabled claimant, (a), thereupon, it was impermissible, for, the learned tribunal, to also award, a, further sum of Rs.1,00,000/-, under, the head "future pain and sufferings". The afore submission has immense vigour, and, is accepted, for the reasons, that, awarding, of, a sum of Rs.1,00,000/-, under the head "pain and suffering", was, a, comprehensive quantification, of, compensation, and, also encompasses, the, monetary indemnification qua the claim, for, future pain and sufferings, sparked, by the disability encumbered upon him. Consequently, the awarding by the learned tribunal of a sum of Rs.1,00,000/-, under, the head "future pain and suffering, is set aside, and, the award is modified according. 6. Furthermore, the learned counsel, for the insurer, has, also contended with much vigour, that, with a sum of Rs.10,300/- being assessed, as compensation under the head "reimbursement towards medical expenses and transportation charges from hospital to back", (a) thereupon, it was impermissible, for the learned tribunal, to, further assess rather towards future medical expenses, also a sum of Rs.50,000/-, especially, when there is no evidence on record in support thereof. The afore submission has vigour, more especially, when no evidence, in support thereof, hence, occurs on record, rather disclosing, that, the claimant, was enjoined to incur any amount towards his future treatment, thereupon, the afore awarding of compensation under the head "future medical expenses" is also set aside, and, the award is modified accordingly. 7. For the foregoing reasons, the appeal filed by the insurer is partly allowed, whereas, the cross objections instituted by cross-objector/respondent No.3 herein is allowed and, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the disabled claimant/petitioner, is, held entitled to a total compensation of Rs.21,66,300/--, along with interest accrued thereon, at the rate of 9% per annum, and, commencing from, the date of petition till realization thereof. The amount of interim compensation, if awarded, be adjusted in the aforesaid compensation amount, at the time of final payment. All pending applications also stand disposed of. Records be sent back forthwith.