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2019 DIGILAW 654 (HP)

New India Assurance Company Ltd v. Subhash Chand

2019-05-30

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. Fao No. 429 of 2018, and, FAO No. 85 of 2019, are respectively, reared by the insurer, and, the owner of the offending vehicle, against, the award rendered by the learned Motor Accident Claims Tribunal-IV, Kangra at Dharamshala, camp at Palampur, H.P., upon, MACP No. 130-P/II/10/2007, wherethrough, compensation amount borne in a sum of Rs.2,00,000/-, stood assessed, vis-a-vis, the disabled claimant, and, thereon interest at the rate of 9% per annum also stood levied, and, it was ordered to commence, from, the date of petition till realization, of, the compensation amount. The apposite indemnificatory liability thereto, stood fastened, upon the insurer of the offending vehicle. 2. The insurer of the offending vehicle, through, its counsel, has not, contested the rendition of affirmative findings, upon, the issue appertaining to the relevant mishap, being a sequel of rash and negligent manner, of driving of the offending vehicle, by Subhash Chand, respondent No.2 herein, and, nor he makes any vehement espousal, before this Court, that, the determination of the compensation amount, rather suffering from any infirmity. However, the solitarily contention reared before this Court, by the learned counsel, for the aggrieved insurer, is, grooved in the factum (a) that the fastening of the apposite indemnificatory liability, upon, the insurer rather being both infirm, and, fallible, as, there was, an, evident breach of the fundamental terms and conditions, of, the insurance policy, (b) sparked by the trite factum qua with the registration certificate, appertaining to the offending vehicle, and, borne in Ex.Ry, rather making a marked display, that, it being, a, goods vehicle/commercial vehicle, (c) and, when henceonly, upon, the owner of the goods, rather evidently travels along therewith hence therein, and, also, upon, his sustaining injuries, on his person, in a collision which occurred inter se it, and, with any other vehicle, or, with the apposite offending vehicle, and, also upon the offending vehicle, being proven to be rashly, and, negligently driven, by its driver, (d) hence, thereupon, only the apposite indemnificatory liability being fastenable, upon, the insurer of the offending vehicle. The learned counsel appearing for the insurer, has, further contended, that, with the disabled claimant rather not at the relevant time, travelling in the offending vehicle along with his goods, loaded therein, (e) given his making an admission qua at the relevant time 15 to 16 persons, travelling alongwith him, in the offending vehicle. The learned counsel appearing for the insurer, has, further contended, that, with the disabled claimant rather not at the relevant time, travelling in the offending vehicle along with his goods, loaded therein, (e) given his making an admission qua at the relevant time 15 to 16 persons, travelling alongwith him, in the offending vehicle. However, the afore echoing, existing in the examination-in-chief, of, the disabled claimant, and, whereon, the afore espousal, as, reared before this Court by the learned counsel, for the insurer, is, rested, yet cannot at all be capitalized, by the counsel for the insurer, for, his per se, thereupon, (f) rather making any submission before this Court, that, hence the disabled claimant was travelling in the offending vehicle as a gratuitous passenger, and, hence, the fastening of the apposite indemnificatory liability, upon, the insurer of the offending vehicle, being, ingrained with any pervasive vice, of, gross fallibility, (g) the reason for making the afore inference, is grooved, in the factum, that the learned counsel, for the insurer, has, read the testification, of, the disabled claimant, in a piecemeal, and, fragmentary manner, and, his being also oblivious qua the echoing, existing in the examination-in-chief, of the disabled claimant, qua at the relevant time, certain goods being aboard, the, offending vehicle. The afore echoing, existing, in the examination-in-chief of the disabled claimant, was required, to be sufficiently hence repulsed by the insurer, comprised in its striving, to adduce best evidence, that, in contemporaneity, vis-a-vis, the lodging of FIR, by one Raj Kumar, an apposite list, of goods hence aboard the offending vehicle, standing prepared by the Investigating officer, upon, the latter visiting the site of occurrence, (h) and, it not detailing therein, the factum, qua, certain goods as averred in the claim petition, rather being aboard therein, and, his further onwards hence testifying in consonance with articulation embodied, in, the afore FIR. However, the afore recoursings, remained unendeavoured, by the learned counsel for the insurer, whereas, they constituted, the best evidence, for succoring the afore espousal, made before this Court, by the learned counsel, for the insurer (i) that the disabled claimant at the relevant time, was not travelling along with his goods, as, purportedly stood borne thereon, rather he was travelling, in a vehicle hence registered as a goods vehicle/commercial vehicle, rather as a gratuitous passenger, and, hence, the fastening of the apposite indemnificatory liability, upon, insurer of the offending vehicle, suffering, from, a gross infirmity. The further effect thereof, is, qua, with the informant, one Raj Kumar, also not being led into the witness box, to face the rigor, of, the ordeal of an exacting cross-examination, upon, his purportedly testifying, in his examination-in-chief, in corroboration, vis-a-vis, the recitals borne, in the apposite FIR, importantly qua his, in the apposite FIR rather concealing, the, material factum qua, upon, his visiting the relevant site, of occurrence, rather certain goods, standing carried therein. Reiterateldy, hence, the afore espousal is blunted, of, its efficacy. 3. Lastly, the learned counsel appearing, for the aggrieved owner, of the offending vehicle, has, upon, the apposite therewith FAO bearing No. 85 of 2019, made, a, vehement address, before this Court, that the affirmative findings rendered, upon, the issue appertaining to the relevant mishap being a sequel of rash, and, negligent manner of driving of the offending vehicle, by respondent No.2 herein, not being free from any taint of mis-appreciation, and, non appreciation of the evidence existing on record, given, a verdict of acquittal, being pronounced by the learned trial Court concerned, upon, the apposite FIR, appertaining to the relevant mishap, (i) thereupon, hence, the findings adversarial, to respondent No.2 herein, were not required to be rendered, by the learned tribunal. However, the afore submission, addressed, before this Court, is not acceptable, as the mere rendering, of, findings of acquittal by the criminal court of competent jurisdiction, upon, the charge framed in sequel, to the apposite therewith FIR, would neither estop, nor constrain the learned tribunal, to accept, the adduced ocular evidence rather making display(s) qua the relevant mishap, being a sequel of rash, and, negligent manner, of, driving of the offending vehicle by respondent No.2 herein. Since, the learned tribunal concerned, upon, being seized, with credible ocular evidence, vis-a-vis, the afore factum, and, with the testification rendered by PW-1, the disabled claimant, rather ascribing hence rash, and, negligent manner of driving, of, the offending vehicle, qua No.2 herein, and, with the afore testification, remaining uneroded, and, with Raj Kumar, the informant not stepping, into the witness box, for repelling the testification, rendered by the disabled claimant, (ii) besides with the owner of the offending vehicle, not placing on record, the entire evidence, adduced before the criminal court, of competent jurisdiction, on anvil thereof, the afore criminal court hence made an order of acquittal, upon, the driver of the offending vehicle, and, wherefrom, it was rather gaugeable qua hence, the testification rendered by PW-1, standing belittled or undermined, (iii) thereupon, want of placing on record, of the entire evidence as adduced by the prosecution, before the criminal court of competent jurisdiction rather constrains a conclusion qua the testification rendered by PW-1, wherein he has ascribed tort of negligence, vis-a-vis, the driver of the offending vehicle, rather holding legal vigour, and, tenacity, dehors an order of acquittal recorded by the criminal court of competent jurisdiction, vis-a-vis, the charge framed, under, Section 279 of the IPC against respondent No.2 herein, Subhash Chand,. 4. For the foregoing reasons, there is no merit in both the appeals, and, they are dismissed. In sequel, the impugned award is maintained and affirmed. All pending applications also stand disposed of. Records be sent back forthwith.