Himachal Pradesh High Court
National Insurance Co. Ltd vs Rajesh Kumar And Another on 4 January, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
FAO No. 175 of 2016
Decided on: 4.1.2018
.
National Insurance Co. Ltd
Appellant
Versus
Rajesh Kumar and another
...Respondents
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes
_________________________________________________
For the Appellant : Mr. Deepak Bhasin,
Advocate.
For the respondent(s) : Mr. Jagat Pal,
Advocate, for respondent
No. 1.
Sureshwar Thakur, Judge (oral)
The instant appeal is directed
against the impugned award, of, 2.4.2016,
pronounced in MAC case No. 6-S/2 of 2014, by the learned Motor Accidents Claims Tribunal-II, Shimla, District Shimla, whereby it after ::: Downloaded on - 10/01/2018 23:00:10 :::HCHP 2 returning affirmative findings, on issue No. 1, (i) appertaining to the petitioner/claimant, respondent suffering injuries, owing to, his rashly .
and negligently driving Tata Spacio bearing No. HP-01A02017, (ii) It proceeded to award compensation, comprised in a sum of Rs.
1,17,559/-, also it fastened the apposite indemnificatory liability(s), upon, the Insurer of the vehicle concerned. The Insurer of the vehicle concerned is aggrieved therefrom, hence has proceeded, to assail it, by instituting the instant appeal.
2. Since uncontrovertedly, the claimant Rajesh Kumar, was, driving the vehicle concerned, bearing No. HP-01A-2017, besides has proven, of, the injuries entailed upon his person,
(i) being a sequel, to, his swerving the vehicle, to, the right side of the road, for hence obviating its colliding with animals, which had entered upon 2 ::: Downloaded on - 10/01/2018 23:00:10 :::HCHP 3 the road, (ii) swerving(s) whereof sequelled it to fall into a deep gorge. The sudden abrupt appearance(s) of animals on the road (iii) AND the .
concert, of, the petitioner, for, avoiding the vehicle driven, by him hence colliding with them, to swerve it to the right side of the road, hence leading it to fall into a gorge, (iv) apparently does not, prima-facie, make any vivid ascription(s) qua the claimant being rash and negligent in driving the vehicle (v) also though hence he cannot, prima-facie, be construed to be a tort feasor, especially when no person, other than him, suffered any injuries, in sequel to the vehicle falling into a gorge, (vi) yet, rather when the injuries entailed upon the person of the claimant, are solitarily testified by him, to stand sequelled by the aforesaid causa-causans, (vii) thereupon hence his negligence in driving the vehicle concerned, cannot prima-facie be amenable to 3 ::: Downloaded on - 10/01/2018 23:00:10 :::HCHP 4 negation(s), (viii) importantly, rather when no better evidence other than the self-serving testimony of the claimant is existing on record (ix) .
besides when the doctrine of res-ipsa-loquitur, has not been concerted to beget attraction hereat, nor when it has been pleaded nor evidence in conjunction therewith is adduced, (x) thereupon, prima-facie, it appears, of, the claimant being negligent in driving the vehicle. Even if, the ill-
fated mishap involving the vehicle concerned, driven, at the relevant time, by the claimant, was, a sequel of his, for avoiding its colliding with the animals, who suddenly appeared on the road, hence swerving it, thereupon leading it, to fall into a gorge, (xi) thereupon the apposite scienter principle, enjoined him to implead, the owners, of the animals, as parties to the lis, importantly, reiteratedly for establishing that, only, for theirs negligence, in their not, avoiding theirs straying 4 ::: Downloaded on - 10/01/2018 23:00:10 :::HCHP 5 onto the road, the mishap hence occurred. In sequel, their non-impleadment, constrains this Court, to conclude, of, no compensation being .
defrayable, vis-à-vis the claimant.
3. Consequently, there is merit in the appeal and the same is allowed. Impugned judgment is quashed and set aside. Upon an application being moved by the learned counsel for the Insurer, r to to for the appellant, it is open to the learned counsel seek release of the compensation amount, as stands deposited by it.
All pending application(s), if any, are disposed of.
No costs.
(Sureshwar Thakur) Judge January 4, 2018 Kalpana 5 ::: Downloaded on - 10/01/2018 23:00:10 :::HCHP