Himachal Pradesh High Court
Babu Ram vs Ajay Kumar And Others on 6 May, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 68 of 2010.
Date of decision: 6th May, 2016.
Babu Ram . .....Appellant.
.
Versus
Ajay Kumar and others ...Respondents
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting ?1 Yes.
of For the appellant: Mr. Rakesh Bharti and Mr. Ajay Kumar Dhiman, Advocates.
For the respondents: rt Mr. Arun Kumar, proxy Advocate, for respondents No. 1 and 2.
Mr. Aman Sood, Advocate, for respondent No.5.
Mansoor Ahmad Mir, Chief Justice, (Oral) This appeal is directed against the judgment and award dated 5.12.2009, made by the Motor Accident Claims Tribunal (1), Kangra at Dharamshala, H.P. in MACP No. 13-D/II-2008, titled Ajay Kumar and another versus Babu Ram and others, for short "the Tribunal", whereby compensation to the tune of Rs.1,22,500/-, alongwith interest @ 9% per annum with Rs.2000/- as costs, was awarded in favour of the claimants and insured/appellant herein came to 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.
::: Downloaded on - 15/04/2017 20:17:06 :::HCHP -2-be saddled with the liability, hereinafter referred to as "the impugned award", for short.
2. Insurer, driver and claimants have not .
questioned the impugned award on any ground. Thus, it has attained finality so far as it relates to them.
3. The appellant/ owner/ insured has questioned the impugned award on the ground that the of Tribunal has fallen in an error in saddling him with the liability. Thus, the only question involved in this appeal rt is-whether the Tribunal has rightly recorded the findings on issue No. 5 and part of issue No.2. The answer is in negative for the following reasons.
4. The Tribunal has held that the driver of the offending vehicle, at the time of accident, was under
the influence of liquor. Thus, the insurer is not liable.
This question has already been determined by this Court in FAO No. 18 of 2009 titled Managing Director, HPMC Nigam Vihar versus Naresh Kumar and others along one connected matter. It is apt to reproduce paras 16 to 18 of the said judgment herein.::: Downloaded on - 15/04/2017 20:17:06 :::HCHP -3-
"16.It was for the insurer to plead and prove that the driver was under the state of intoxication with the knowledge and consent of the insured. No such evidence has been led by .
the insurer that the owner was accompanying the driver and driver had taken the alcohol with the knowledge and consent of the insured. In the given circumstances, how the Tribunal has exonerated the insurer, is not forthcoming.
of
17. This Court in Khem Chand versus Smt. Uma Devi and others, reported in Latest HLJ 2010 (HP) 1, has laid down the same rt principle. It is apt to reproduce para-4 of the judgment herein:-
"4. The law is very well settled that a claim which falls within the purview of an Act policy i.e. a liability falling within the ambit of Section 147 of the Motor Vehicles Act, 1988 ( the Act) can only be contested by the Insurance Company on the grounds available to it under Section 149 of the Act. It is not permitted to contest the proceedings on any other grounds. Intoxication of the driver is not a ground available to the Insurance Company under Section 149 of the Act. Therefore, the liability, which is statutory under Section 147 of the Act, has to be satisfied by the insurer. It may be clarified that in case the insurer in addition to the liability which it is bound to cover under the Act covers other liability then in case of such extended liability, it may raise the defences available to it as per terms of the policy, but as far as statutory liability is concerned, the insurer has no authority ::: Downloaded on - 15/04/2017 20:17:06 :::HCHP -4- to incorporate any term in the policy which is not contemplated in terms of Section 149 of the Act. Therefore, the Insurance Company could not have been permitted to raise this defence and it could .
not be permitted to recover the awarded amount from the insured."
18.This ground is not available to the insurer in terms of the mandate of Sections 147 and 149 of the Act."
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5. The Tribunal has not discussed the terms and conditions of the insurance policy in order to rt ascertain whether there was any such condition whereby the insurer can seek exoneration.
6. The insurance policy Ext. RX and cover Note is Ext. RW1/B are on record. Both these documents do not contain any condition that if the driver is under the influence of liquor, at the time of accident, the insurer is not liable to indemnify. Even otherwise, no such evidence has been brought on record to prove that intoxication was the basis for causing the accident. The Tribunal has not discussed this issue, and without giving any reasons, in para 20 of the impugned award, saddled the insured with the liability.
::: Downloaded on - 15/04/2017 20:17:06 :::HCHP -5-7. Having said so, it is held that the insurer has to satisfy the award. Accordingly, the impugned award is modified as indicated hereinabove and the .
insurer is saddled with the liability.
8. The insurer is directed to deposit the amount within eight weeks from today. On deposit, the Registry is directed to release the awarded amount of in favour of the claimants, through payees' cheque account or by depositing the same in their bank rt account, strictly in terms of the conditions contained in the impugned award.
9 Statutory amount of Rs.25,000/- is awarded as costs in favour of the claimants, in addition to the amount already awarded.
10. The appeal is accordingly, disposed of.
Send down the record forthwith, after placing a copy of this judgment.
May 06, 2016. (Mansoor Ahmad Mir) (cm Thakur) Chief Justice.
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