Himachal Pradesh High Court
United India Insurance Company Ltd vs Smt. Neelam Kumari & Others on 7 August, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
1
IN THE HIGH COURT OF HIMACHAL PRADESH,
.
SHIMLA
FAO No. 587 of 2008
Decided on : 07.08.2015
____________________________________________________
United India Insurance Company Ltd. ...Appellant
Versus
Smt. Neelam Kumari & others ..Respondents
of
_________________________________________________
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir,
Mir, Chief Justice.
Whether approved for reporting? Yes.
rt
For the appellant: Mr. Ashwani K. Sharma, Senior
Advocate with Mr. V.S. Chauhan,
Advocate.
For the respondents: Mr. Ajay Kumar Dhiman, Advocate,
for respondent No. 1.
Ms. Snehlata, Advocate vice Mr.
Bhuvnesh Sharma, Advocate, for
respondents No. 2 & 3.
____________________________________________________
Mansoor Ahmad Mir, Chief Justice (oral)
This appeal is directed against the award, dated 19.06.2008, passed by Motor Accident Claims Tribunal-(III), Kangra at Dharamshala, Himachal Pradesh, (for short, 'the Tribunal'), in M.A.C. Petition No. 48-K/2002, titled Neelam Kumari versus Ramesh Chand & others, whereby compensation to the tune of ` 2,00,000/- with interest @ 7.5% per annum from the date of filing of the claim ::: Downloaded on - 15/04/2017 18:43:17 :::HCHP 2 petition till its realization, came to be awarded in favour .
of the claimant-respondent No. 1 herein and the insurer-
appellant, herein was saddled with liability (hereinafter referred to as the "impugned award").
of
2. The claimant, the driver and the owner have not questioned the impugned award, on any count. Thus, it has rt attained finality so far as it relates to them.
3. The insurer has questioned the impugned award on the ground that the Tribunal has not returned any findings on issue No. 5.
4. It is apt to reproduce issue No. 5 herein:-
"5. Whether the driver of the offending vehicle was not holding valid and effective driving licence at the time of accident, if so the effect thereof?
...OPR
5. It was for the insurer to prove that the driver was not having a valid and effective driving licence at the relevant time. Though, it has led evidence to prove this issue, but the Tribunal has not made any discussion in paras 10 & 14 of the impugned award. It is apt to reproduce the aforesaid paras of the impugned award herein:
::: Downloaded on - 15/04/2017 18:43:17 :::HCHP 3"10. The respondent has examined RW1 Ramesh .
Chand respondent No. 1 who has deposed that he had filed his licence with the licence authority, Dehra vide receipt Ext. RW-1/a and thereafter it was produced before licencing authority Hoshiarpur as his licence has been valid upto 12.12.2009 the copy of which is Ext. RW-1/C. The driver of the offending vehicle has claimed in his statement that he was of falsely implicated in the case as he was acquitted in the criminal case vide copy of judgment Ext. RW-1/B. The respondent No. 2 Surinder Kumar has also stepped into the rt witness box as owner of the driver who has claimed that he has engaged respondent No. 1 as driver with his vehicle bearing registration No. HP-02-2008 after getting his tests and the driving licence which was valid and he has also claimed his vehicle to be insured at the time of accident. The respondent No. 3 has also tendered in evidence the copy of insurance policy Ext. RX.
12 & 13.............
14. The offending vehicle was insured with the insurer of the offending vehicle at the time of accident as per insurance Ext. RX produced and relied upon by the insurer of the offending vehicle and the petition is not bad for non-
joinder of necessary parties as owner, driver as well as insurer of the offending vehicle being necessary parties have been impleaded in the present petition. The driver of the offending vehicle was holding valid and effective driving licence at the time of accident as per copy of driving licence Ext. RW1/C and the petition is maintainable in the present form. Hence, all these issues are held against the respondents and in favour of the petitioner."::: Downloaded on - 15/04/2017 18:43:17 :::HCHP 4
6. While going through the aforesaid paras, one .
comes to an inescapable conclusion that the Tribunal has not returned the findings to the effect, whether-the driver was having valid and effective driving licence with the required endorsement to drive the offending vehicle at the time of of accident?
7. In the given circumstances, I am of the rt considered view that the Tribunal has fallen in an error in saddling the insurer with the liability without deciding issue No. 5.
8. Accordingly, the case is remanded to the Tribunal, commanding the Tribunal to prov ide opportunities to the insurer, owner/insured and driver to lead further evidence, oral or documentary, in support of their case and to return findings within three months w.e.f. 24.08.2015.
9. It is made clear that in case the decision goes in favour of the insurer, he will have the right to recover the compensation amount from the owner.
::: Downloaded on - 15/04/2017 18:43:17 :::HCHP 510. Having said so, the impugned award is set aside, .
so far as issue No. 5 is concerned. The findings returned by the Tribunal on all the other issues are upheld.
11. The Registry is directed to release the awarded amount in favour of the claimant, strictly as per the terms of and conditions contained in the impugned award.
12. Parties are directed to appear before the rt Tribunal on 24th August, 2015.
13. Registry to send the record of the case alongwith a copy of this judgment forthwith so as to reach the Tribunal below well before the date fixed.
August 7, 2015 (Mansoor Ahmad Mir),
Mir),
(hemlata) Chief Justice
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