Himachal Pradesh High Court
Dalip Singh Doad vs The New India Assurance Company And ... on 21 April, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO No. 141 of 2013 Reserved on : 13.04.2023 .
Decided on: 21st April, 2023
Dalip Singh Doad .......Appellant
Versus
The New India Assurance Company and others ...Respondents Coram The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 For the appellant: Mr. Munish Thakur, Advocate.
For the respondents: Mr. B.M. Chauhan, Senior Advocate with Mr. M.S. Katoch, Advocate for respondent No.1.
Mr. Amit Sharma, Advocate for respondent No.2.
Virender Singh, Judge Appellant Dalip Singh Doad has filed the present appeal, under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'MV Act') against the award dated 20.12.2012 passed by the learned Motor Accidents Claim Tribunal-II, Fast Track Court, Hamirpur (hereinafter referred to as the 'learned MACT') in MAC Petition No. 27 of 1 Whether the reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 24/04/2023 20:33:56 :::CIS 22010 titled as Dalip Singh Doad and another vs. The New India Assurance Company Limited and another.
.
2. By way of award dated 20.12.2012, the learned MACT has partly allowed the claim petition filed by the appellant as well as, proforma respondent No.3, by awarding a sum of Rs. 6,000/- on account of damages to the property, along-with interest @ 7.5 per annum, from the date of filing of the claim petition till the realization of the whole amount against respondent No.1 (Insurance Company).
3. For the sake of convenience, the parties to the lis in the present appeal, are referred in the same manner, in which, they were referred to, by the learned MACT.
4. The claimants have filed the petition under Section 166 of the MV Act on the ground that on 8.10.2009, at about 1.45 p.m. near village Darbor, Gram Panchayat Nara, Tehsil and District Hamirpur, H.P., petitioner No.2 was going to attend a marriage at Nauhangi. He was driving vehicle No. CH-03J-
4711. Petitioner No.1 along-with his wife, mother and daughter-
in-law were sitting in the said vehicle. When, the said vehicle reached at Village Darbor, in the meanwhile, respondent No.2 came there, while driving vehicle No. HP-03-1888 and at that ::: Downloaded on - 24/04/2023 20:33:56 :::CIS 3 time, he was driving the vehicle, in a rash and negligent manner. On seeing him driving the vehicle No. HP-03-1888 in a .
rash and negligent manner, petitioner No.2 had stopped his vehicle, however, respondent No.2 while driving the vehicle No. HP-03-1888, hit the car driven by petitioner No.2.
Consequently, the occupants of the car suffered injuries and first aid was given to them at CHC, Galore. Losses were also caused to the car. The claimants have got repaired their vehicle by spending Rs. 28,917/- from the Competent Automobiles Company Limited situated at village Tikkar, P.O. Didwin, Tehsil and District Hamirpur, H.P.
5. The petitioners have also asserted the fact that due to the injuries suffered, they could not pursue their daily pursuits, as such, they have claimed a sum of Rs. 1,00,000/-
along-with interest @ 12% per annum. The factum of accident was also reported to the police and FIR No. 172/2009 was registered against respondent No.2 under Sections 279 and 337 IPC.
6. When put on notice, the claim petition has been contested by the respondents.
::: Downloaded on - 24/04/2023 20:33:56 :::CIS 47. Respondent No.1-Insurance Company has taken the preliminary objections that the vehicle was being plied .
without valid and effective registration certificate-cum-fitness certificate. Respondent No.2 has not reported the factum of accident to the Insurance-Company, which is mandatory, as per provisions of the MV Act. Respondent No.2 was not having a valid driving licence to drive the vehicle. On merits, the contents of the claim petition have been denied.
8. Respondent No.2 has filed the separate reply by taking the preliminary objections that the claim petition is not maintainable, petitioner No. 1 was not having a valid and effective driving licence at the time of accident, the petition is bad for non-joinder of necessary parties.
9. On merits, the factum of accident has not been disputed, but, according to him, the accident was a minor accident. The factum of registration of FIR has also not been disputed. Rest of the contents have been denied.
10. From the pleadings of the parties, the learned MACT has framed the following issues vide order dated 15.02.2011:-
::: Downloaded on - 24/04/2023 20:33:56 :::CIS 51. Whether on 8-10-2009 at 1.45 p.m. at Village Darbor, respondent No.2 was driving Maruti Car No.HP-03-1888 rashly or negligently and had struck with Maruti Car No. .
CH-03-J-4711 as alleged ?OPP.
2. Whether with the rash or negligent driving of respondent No.2, damage had been caused to Maruti Car No. CH- 03-J-4711 and the petitioners had also suffered injuries in the accident as alleged ? OPP.
3. If issue Nos. 1 and 2 proved, whether petitioners are entitled for compensation, if so, from whom and to what amount ? OPP.
4. Whether the vehicle Car No. HP-03-1888 was being plied by respondent No.2 without valid and effective RC- cum-fitness certificate and valid route permit and respondent No.1 is not liable to indemnify the insured, as alleged ? OPR-1.
5. Whether the respondent No.2 had not reported the accident to respondent No.1 forthwith, if so, its effect?
OPR-1.
6. Whether respondent No.2 did not hold a valid and effective driving licence to drive the vehicle of the category at the time of accident as alleged? OPR-1.
7. Whether the petition is bad for misjoinder of parties as alleged? OPR-1.
8. Whether the petition is not maintainable in the present form as alleged? OPR-2
9. Whether petitioner No.2 was not having valid and effective driving licence to drive Maruti Car No. CH- 03- J-4711 at the time of accident as alleged? OPR-2.
10. Whether petition is bad for non-joinder of necessary parties as alleged? OPR-2
11. Whether the petitioners are estopped to file the petition by their act and conduct as alleged? OPR-2.
12. Relief.
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11. After affording the opportunity to lead evidence to the parties, the learned MACT has decided the claim petition vide order dated 20.12.2012, which has been assailed before this Court by way of the present appeal.
12. The award has been assailed on the ground that the learned MACT has not considered the documentary evidence by way of bills, which have been exhibited as Ext.
PW-5/A while deciding the claim petition and has awarded only a sum of Rs. 6,000/-, in this case. The learned MACT has wrongly applied the provisions of Section 147(2)(b) of the MV Act, in this case, whereas, according to the insurance policy Ext. RW-3/A, the limit of liability of respondent No.1 was Rs.7,50,000/-.
13. According to the grounds of appeal, the main attack of the claimants is qua wrong interpretation of Section 147(2) (b) of the MV Act by the learned MACT.
14. Perusal of the record shows that the factum of accident has not been disputed, in this case. As such, the controversy involved in the present appeal is qua the fact ::: Downloaded on - 24/04/2023 20:33:56 :::CIS 7 whether the claimants are entitled for any compensation from the Insurance-company, as the offending vehicle owned and .
driven by respondent No.2, admittedly, on the day of accident, was insured with respondent No.1.
15. Claimant No.1, while appearing in the witness box, has, although, deposed about the fact that they had also sustained injuries, but, neither the doctor nor the other occupants of the car, who allegedly had sustained injuries, have been examined. In such a situation, the learned MACT has rightly not awarded any amount to them.
16. However, the claimants have proved the bill of Rs.
29,817/- Ext. PW-5/A examining the Supervisor from the Competent Automobiles. When the factum of accident has not been disputed and FIR Ext. PW-3/A has been registered against respondent No.2, as such, there is no legal hesitation to hold that the accident had taken place due to the rash and negligent driving of respondent No.2, due to which, losses have been caused to the vehicle of the claimants. The insurance policy is on file as Ext. R-1. As per policy, the liability of the Insurance-company, in respect of any one claim or series of claims, arising out of one event, has been mentioned ::: Downloaded on - 24/04/2023 20:33:56 :::CIS 8 as Rs. 7,50,000/-. As such, the claimants are entitled for a sum of Rs. 28,917/- on account of damages caused to their .
vehicle, instead of amount of compensation of Rs.6,000/-.
17. Consequently, the appeal is partly allowed by holding that the claimants are entitled for a sum of Rs. 28,917/, instead of Rs.6,000/-, along-with interest @ 7.5% per annum, from the date of filing of the claim petition till the realization of the whole amount. In addition to this, the claimants are also held entitled for the cost of this petition, which is being assessed as Rs.10,000/-.
18. The appeal stands partly allowed in the aforesaid terms. Pending applications, if any, also stand disposed of.
19. Record be sent back.
April 21, 2023 ( Virender Singh )
(naveen) Judge
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