Himachal Pradesh High Court
United India Insurance Company Limited vs Union Of India And Others on 5 June, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
FAO No.482 of 2007.
.
Reserved on: 29.05.2015.
Pronounced on: 05.06.2015.
United India Insurance Company Limited ...Appellant
VERSUS
Union of India and others ...Respondents.
Coram
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting? Yes.
For the Appellant: Mr.Ashwani K. Sharma, Advocate.
For the Respondents: Mr.Ashok Sharma, Assistant Solicitor
General of India, for respondents No.1
to 3.
Nemo for respondents No.4 and 5.
____________________________________________________________
Mansoor Ahmad Mir, C.J. (Oral)
Subject matter of this appeal is the award, dated 31st August, 2007, passed by the Motor Accident Claims Tribunal, Kullu, (for short, the Tribunal), in Claim Petition No.73 of 2005, titled Union of India and others vs. Pawan Kumar and others, whereby compensation to the tune of Rs.8,11,536/-, with interest at the rate of 6%, from the date of filing of the Claim Petition till realization, was awarded in favour of the claimants-Union of India and ::: Downloaded on - 15/04/2017 18:21:03 :::HCHP ...2...
the insurer (appellant herein) was saddled with the .
liability, (for short, the impugned award).
2. The insurer/appellant has questioned the impugned award on the ground that the driver of the offending truck had not driven the vehicle rashly and negligently and no damage was caused by the vehicle, which was insured with it. It was also submitted that the claimants have not been able to prove the amount spent for repairing the bridge/damaged property.
3. In order to determine these issues raised by the appellant-insurer, brief facts of the case are to be noticed.
4. The bridge across Jankar Nallah on Manali Sarchu road was constructed by the claimants-Union of India. The bridge was meant for crossing of only one vehicle at a particular time. Caution boards were also displayed on both sides of the bridge signifying the speed limit to be observed while crossing the bridge as also the fact that only one vehicle could go across the bridge at ::: Downloaded on - 15/04/2017 18:21:03 :::HCHP ...3...
one point of time. It was averred that without paying .
any attention to the caution boards, truck bearing No.HP-38B-4647, being driven by Ramesh Chand (original respondent No.2), rashly and negligently, entered the bridge, despite the fact that there was another truck bearing registration No.HP-38B-6447, being driven by one Bhola Singh, was in the mid of crossing the bridge in question. Since the bridge was not in a position to bear the weight of both the vehicles crossing simultaneously, it gave way, and both the vehicles fell off the bridge, damaging the bridge in totality. FIR No.40 of 2004 was registered at Police Station, Keylong Lahaul and Spiti, on 3rd June, 2004.
5. Thus, the claimants-Union of India preferred the claim petition before the Tribunal claiming compensation to the tune of Rs.8,11,536/- on the ground that the driver of the offending truck had driven the same rashly and negligently causing the accident in which the bridge was totally damaged.
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6. The owner/insured, the driver and the insurer .
have contested the Claim Petition by filing separate replies.
7. On the pleadings of the parties, the following issues were settled by the Tribunal:
"1. Whether the bridge, belonging to the petitioners, has been damaged due to rash and negligent driving of truck No.HP-38B-4647 by respondent No.2? OPP
2. If issue No.1 is proved in affirmative, to what amount of compensation/damages, the petitioners are entitled to and from whom? OPP
3. Whether the truck in question was being driven in contravention of the terms and conditions of the insurance policy? OPR-3.
4. Whether respondent No.2 was not holding a valid and effective driving licence at the time of accident? OPR-3
5. Relief."
8. Parties adduced their evidence in support of their respective claims.
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9. The Claimants-Union of India examined four .
witnesses in all i.e. PW-1 Hari Singh, PW-2 Guruvanandam, PW-3 Vijay Kumar and PW-4 A.K. Singh. Respondents i.e. the owner and the driver have examined Bhola Singh (driver of truck No.HP-38B-6447) as RW-1 and Nawang Norbu (Record Keeper, in the office of Deputy Commission, Keylong) as RW-2, while the insurer has opted not to lead any evidence.
10. The witnesses have deposed that the driver of the offending vehicle, namely, Ramesh Chand, had driven the offending vehicle rashly and negligently and caused the accident because the bridge was not in a position to withstand the weight of two trucks crossing simultaneously. The witnesses have also deposed that the truck which was being driven by Bhola Singh had entered the bridge prior in time, was ahead of the offending vehicle and thereafter, the offending truck, without allowing the truck going ahead of it, to cross the bridge, tried to cross the bridge simultaneously, as a result ::: Downloaded on - 15/04/2017 18:21:03 :::HCHP ...6...
of which the bridge collapsed and both the vehicles fell .
down. Thus, the accident was because of sheer carelessness, rashness and negligence on the part of the driver of the offending vehicle.
11. The driver of the offending vehicle examined Bhola Singh as RW-1, who has stated that Ramesh Chand had driven the vehicle carelessly, rashly and negligently.
He has also stated that he was cautioned by the police officials present at the Check Post that only one vehicle was allowed to cross the Bridge at one point of time. He further stated that had Ramesh Chand not entered on the bridge just after him and waited till he crossed the bridge, the accident would not have occurred.
12. Thus, RW-2 Bhola Singh has, in fact, deposed against the driver of the offending vehicle. It is clear from the statement of this witness that the accident had occurred due to the negligence on the part of the driver of the offending vehicle i.e. Ramesh Chand.
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13. Moreover, the insurer-appellant, in the reply .
filed by it to the Claim Petition, has categorically admitted in paragraph 13 that the accident was the outcome of rash and negligent driving of respondent No.2. It was also pleaded that had he not ignored the cautionary board, the accident would have been averted. It is apt to reproduce paragraph 13 of the reply hereunder:
"The accident and damage to the property is caused only due to the negligence on the part of the respondent No.2 who ignored the cautionary board as admitted by the petitioner and the respondent No.3 is not entitled to make any kind of compensation to the petitioners."
14. Having said so, the Tribunal has rightly returned the findings on Issue No.1.
15. Before issue No.2 is dealt with, I deem it proper to deal with issues No.3 and 4. Onus to prove these issues was on the insurer. The insurer has not led any evidence.
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However, a perusal of the statement of RW-2 Nawang .
Norbu, Record Keeper, office of the Deputy Commissioner, Keylong, District Lahaul & Spiti, who was examined by the owner and the driver of the offending vehicle, shows that the driver of the offending vehicle was having a valid and effective driving licence at the time of accident. Accordingly, the findings of the Tribunal on issue No.4 are upheld.
16. As far as issue No.3 is concerned, it was for the insurer to plead and prove that the offending vehicle was being plied in contravention of the terms and conditions contained in the insurance policy, has failed to discharge the onus. The Tribunal has, therefore, rightly decided this issue against the insurer and in favour of the claimants and the owner/insured.
17. Now coming to issue No.2, the learned counsel for the appellant/insurer has argued that the State functionaries or the Union of India has not issued notifications, as required in terms of the provisions of the ::: Downloaded on - 15/04/2017 18:21:03 :::HCHP ...9...
Motor Vehicles Act, 1988 (for short, the Act). Thus, it was .
contended that the accident had occurred due to the negligence of the State/Union of India and no negligence can be attributed to the driver of the offending vehicle. It was further submitted that keeping in view the strength of the bridge, the State ought to have posted an official in order to manage the traffic over it.
18. The argument, though attractive, is devoid of any force for the reason that RW-1 Bhola Singh has categorically stated that the accident was the outcome of rashness, negligence and carelessness of the driver Ramesh Chand. Even the insurer has admitted in paragraph 13 of the reply, reproduced above, that the accident had taken place due to the negligence of the driver of the offending vehicle.
19. The claimants have specifically pleaded in the Claim Petition as to what was the extent of damage to the bridge and the amount they have spent on its ::: Downloaded on - 15/04/2017 18:21:03 :::HCHP ...10...
repairs. Assessment, qua cost of repairs, has been .
proved on record as Ext.PW-2/A and stands duly corroborated by PW-3 Vijay Kumar, Assistant Executive Engineer. No evidence, in rebuttal, was led by the insurer to demolish the said evidence.
20. The Tribunal has rightly made discussion in paragraphs 9 and 11 of the impugned award. The insurer has not led any evidence in rebuttal to prove that the assessment was not correctly made.
21. During the course of hearing, the learned counsel for the appellant has relied upon the decision of Kerala High Court in United India Insurance Company vs. Thomas, I (1999) ACC 587 (DB), which decision is based on the facts of that case and is not attracted to the facts of the present case, rather is against the appellant.
22. The Apex Court in Shivaji Dayanu Patil and another vs. Vatschala Uttam More (Smt), (1991) 3 SCC 530, has dilated on the scope of Section 110 of the Motor Vehicles Act, 1939 (old) corresponding to Section 166 of ::: Downloaded on - 15/04/2017 18:21:03 :::HCHP ...11...
the Act, and the ratio laid down in this case is applicable .
to the case in hand.
23. It is apt to record herein that the owner and the driver have not questioned the impugned award on any count.
24. Thus, the only conclusion which can be drawn is that the insurer has to satisfy the award so far as it relates to third party since the factum of insurance is not in dispute.
25. Having a glance of the above discussion, I am of the opinion that the Tribunal has rightly awarded the compensation and no interference is required in the impugned award.
26. Accordingly, the impugned award is upheld and the appeal is dismissed.
(Mansoor Ahmad Mir), June 05, 2015. Chief Justice.
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