Himachal Pradesh High Court
National Insurance Company Ltd vs Smt. Mamta Devi & Others on 20 September, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 4124 of 2013.
.
Reserved on: 17th September, 2018.
Decided on : 20th September, 2018.
National Insurance Company Ltd.
.....Appellant.
Versus Smt. Mamta Devi & others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Lalit K. Sharma, Advocate.
For Respondent No. 1 to 6: Mr. Ramakant Sharma, Sr. Advocate with Ms. Soma Thakur, Advocate.
For Respondent No. 7: Mr. Anup Rattan, Advocate.
For Respondent No. 8: Mr. B.S. Attri, Advocate.
Sureshwar Thakur, Judge.
The Insurer of the offending vehicle, has, instituted the instant appeal before this Court, wherethrough, it, casts a challenge, upon, the award pronounced by the learned Motor Accident Claims Tribunal(I), Kangra at Dharamshala, H.P., upon, MACP No. 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 26/09/2018 22:57:32 :::HCHP
...2...
.
10-J/II/2009, whereunder, compensation amount comprised, in, a sum of Rs.5,43,400/- along with costs, and, interest accrued thereon, at the rate of 9% per annum, from, the date of petition till realization thereof, stood, assessed, vis-a-vis, the claimants, and, the upon the insurer.
r to apposite indemnificatory liability thereof, was, fastened
2. Deceased Balbir Singh, at the relevant time, was, atop motor cycle bearing registration No. HP-38B 1697, motorcycle whereof, at the relevant time, stood driven by deceased Rajesh Kumar. In sequel, to, the rash and negligent driving, of, the offending maruti van, bearing registration No. HP-38A-8348, by its driver one Rohit Sharma, arrayed, as, respondent No.7 herein, an apt collision occurred inter se both, (i) in sequel thereto deceased Balbir Singh, as pronounced, by the apt postmortem report, borne in Ex.PW7/A, hence, suffered fatal injuries. The entailment, of, fatal injuries, upon, the ::: Downloaded on - 26/09/2018 22:57:32 :::HCHP ...3...
.
deceased is not contested by the counsel for the insurer.
Also the counsel for the insurer does not contest, the, validity of findings, rendered by the learned tribunal in its impugned award, except, the findings rendered, upon, the issue appertaining to deceased Balbir Singh, suffering, fatal injuries, in sequel to, the, rash and negligent manner of driving, of, the offending maruti van, by its driver. His contention, for, eroding the efficacy of the findings recorded thereon, stands rested, upon, despite, the insurer, in, its response/reply furnished to the claim petition, rather rearing, a contention therein (a) qua the ill-fated occurrence/mishap, being a sequel, of composite negligence, of, the driver of the offending maruti van, and, the rider of the afore motorcycle, yet, no apt issue being struck in respect thereof; (b) wherefrom, he contends, that, the omission on the part of the learned tribunal to strike a issue, upon, a vital res controversia, and, also its concomitant failure, to, return finding ::: Downloaded on - 26/09/2018 22:57:32 :::HCHP ...4...
.
thereon, has, sequelled gross miscarriage of justice, and, also sequelled, the, further ill consequence, of, non arraying of the owner of the afore motorcycle, besides the non arraying of insurer thereof; (c) ultimately it has sequelled qua the entire apt indemnificatory liability, being untenably fastened, upon, the insurer/appellant herein, (d) whereas, upon the afore omission(s), rather not occurring, thereupon the apt proportionate, hence, just apportionment(s) of liability, vis-a-vis, compensation amount, would stand fastened amongst the owner, and, the insurer, of, the afore motorcycle.
3. The afore contention, is, squarely rested, upon, contentions, in, consonance therewith, being reared, by the insurer/appellant herein, in its reply/response furnished, to the claim petition. However, a perusal, of, the order recorded on 1.4.2010, by the learned tribunal, makes, a disclosure that the learned tribunal, had, omitted to frame/strike, an issue in ::: Downloaded on - 26/09/2018 22:57:32 :::HCHP ...5...
.
consonance therewith. The afore order remained unassailed, hence, it acquires conclusivity, thereupon, the insurer/appellant, is, barred to rear the aforesaid contention, vis-a-vis, the apt omission made by the learned tribunal. However, even if, the order pronounced on 1.4.2010, stands concluded to acquire an aura of conclusivity, (a) yet, the contention of the learned counsel appearing for the insurer/appellant qua the afore omission, still remaining alive, and, it vitiating the trial, and, also, the verdict pronounced by the learned tribunal,
(b)importantly, when the aforesaid omission rather appertains to non striking of a vital issue, and, consequent therewith non adduction of evidence thereon, hence apparently, and, ex-facie prima facie prejudice hence palpably ensuing, vis-a-vis, the insurer/appellant herein. However, the omission, if any, on the part of the learned tribunal, to, strike the afore vital issue, cannot, per se be concluded to visit the insurer/appellant herein, ::: Downloaded on - 26/09/2018 22:57:32 :::HCHP ...6...
.
with, any demonstrable prejudice, (c) nor per se it is inferable, that, the apt trial is vitiated nor it can be concluded that the impugned verdict, is, stained with any vice of gross illegality, (d) unless, a perusal of the entire records, displays, that the insurer/appellant herein, (a) was taken by surprise; (b) despite non striking of the vital issue, it failed to lead any formidable evidence, nor evidence on record, unveiling, of the claimants' witnesses hence remaining uncross-examined by the counsel, for the insurer, emphatically, with respect to the afore contentions reared by the insurer, in its reply, furnished to the claim petition.
4. Be that as it may, a perusal of the records reveals (i) that the apt FIR borne in Ex.PW5/A, embodying therein, hence, offences constituted under Sections 279, 337 and 304 of the IPC, hence, stood registered with Police Station, Nurpor. Even though, there is an ascription qua therein deceased Rajesh while driving the ::: Downloaded on - 26/09/2018 22:57:32 :::HCHP ...7...
.
afore motorcycle, his rather breaching, the, terms and conditions of the insurance policy, (ii) breach whereof stands therein displayed, to, arise from, his permitting two persons, to be, astride along with him as pillion riders thereon, (iii) yet the afore breach, is, also enjoined to be proven to beget the sequel, of, hence the afore deceased Rajesh Kumar, omitting to adhere to the standards of due case and caution, hence, his negligence begetting, the, apt collision inter se, the, maruti van, and, the motor cycle, whereon, he was atop as its rider, (iv) and, obviously his, contributing, to the relevant collision, or in sequel to the composite negligence of Rajesh Kumar, and, the driver of the offending maruti van, deceased Balbir Singh being entailed, with, fatal injuries on his person. Contrarily, with an eye witness to the occurrence, who lodged the FIR, while stepping into the witness box as PW-2, rather in his examination-in-chief, hence, making disclosure(s) qua the afore motor cycle, being ::: Downloaded on - 26/09/2018 22:57:32 :::HCHP ...8...
.
driven on the appropriate side of the road, (v) whereas, the offending maruti van being driven, on, the inappropriate side of the road, (vi) besides his also rendering an echoing therein that the offending van, being driven at a brazen excessive speed, (vii) thereupon, the collision, as, occurred inter se both, does garner an inference qua the contents embodied, in the FIR, borne in Ex.PW3/A rather being proven. PW2 was held to cross-examination by the counsel for the insurer, and, he meted suggestion, to him in support, of, the propagation(s) reared by the insurer in its reply, however, the aforesaid suggestion(s) rather stand denied by him.
Consequently, the deposition qua the occurrence rendered by PW-2, and, occurring in his examination-in-
chief, acquires an aura of authenticity, and, hence enjoined meteing(s) of credence thereto. Even though, the insurer led into the witness box RW-1 and RW-2, yet with RW-2, being the driver of the offending vehicle, and, ::: Downloaded on - 26/09/2018 22:57:32 :::HCHP ...9...
.
his not reporting the matter, to, the police, thereupon, his testification in support of the insurer's response to the claim petition, loses vigour. Consequently, the afore contention of the insurer is rejected.
5. For the foregoing reasons, there is no merit in the instant appeal and it is dismissed accordingly.
impugned award is maintained and affirmed. All pending r The applications also stand disposed of. Records be sent back forthwith.
(Sureshwar Thakur) 20 th September, 2018. Judge.
(jai) ::: Downloaded on - 26/09/2018 22:57:32 :::HCHP