Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Smt. Kamla Devi And Others on 28 December, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
FAO(MVA) No. 254 of 2016
.
Decided on: December 28, 2020
_____________________________________________________________
Oriental Insurance Company Ltd. ..Appellant
Versus
Smt. Kamla Devi and others ..........Respondents
_____________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
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For the appellant : Dr. Lalit K. Sharma, Advocate,
through Video-Conferencing.
For the respondents :
Mr. Divya Raj Singh, Advocate,
through Video-Conferencing.
_____________________________________________________________
Sandeep Sharma, Judge:
Instant appeal filed under Section 173 of the Motor Vehicles Act (hereinafter, 'Act') lays challenge to award dated 16.1.2016 passed by Motor Accident Claims Tribunal, Chamba, District Chamba, in MAC Petition No. 76 of 2014, titled Smt. Kamla Devi and others versus Oriental Insurance Company Limited and another, whereby learned Tribunal below, while allowing claim petition filed by respondents No. 1 to 7/claimants (hereinafter, 'claimants') under Section 166 of the Act, claiming therein compensation on account of death of Om Prakash, awarded a sum of Rs. 19,56,000/- in favour of the claimants, 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 31/12/2020 20:15:04 :::HCHP 2alongwith interest at the rate of 9 % per annum from the date of filing of the petition till realisation thereof, payable by appellant-
.
Insurance Company.
2. Precisely, the facts of the case as emerge from the record are that on 19.4.2014, at about 5.00 PM, ill-fated vehicle bearing registration No. HP-01C-3304 (Maxi cab ) being driven by driver namely Prithi Chand, met with an accident, as a consequence of which, deceased Om Prakash, who was one of the occupants died on the spot. Claimants being dependents of Om Prakash, filed petition under Section166 of the Act, before learned Tribunal below, claiming therein compensation to the tune of Rs.
19,60,000/-. Claimants claimed before learned Tribunal below that deceased Om Prkash was Beldar in Development Block Pangi and was drawing wages to the tune of Rs. 10,096/- per month.
Claimants claimed that deceased was earning Rs.3000/- from agriculture work and his total monthly income was Rs.22,096/-
and as such, they are entitled to compensation on account of untimely death of deceased. Claimants claimed before learned Tribunal below that due to untimely death of Om Prakash, they have suffered irreparable loss of love and affection.
3. Appellant-Insurance Company, while resisting the claim of the claimants, claimed that since driver of the offending vehicle was not having valid and effective driving licence at the ::: Downloaded on - 31/12/2020 20:15:04 :::HCHP 3 time of accident, it is not liable to indemnify the insured. Besides above, appellant-Insurance Company claimed that offending .
vehicle was not having valid registration certificate, route permit, valid fitness certificate and since the vehicle was being driven in violation of the terms and conditions of the insurance policy, it cannot be held liable to pay compensation, if any, on account of death of passengers traveling in the ill-fated vehicle at the time of accident.
4. Learned Tribunal below, on the basis of pleadings of parties, framed following issues on 9.7.2015:-
"1. Whether deceased Om Prakash had died in a Motor Vehicle accident on 19-4-2014, at about 5 PM at place Darbnalla District Kishatwar (J&K) due to rash and negligent driving of vehicle bearing registration No.HP-01C-3304 by its driver as alleged? OPP.
2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP.
3. Whether the petition is not maintainable as alleged?
OPR.
4. Whether the driver of the vehicle in question was not holding valid and effective driving licence at the time of accident as alleged?OPR-1.
5. Whether the vehicle in question was not being driven in accordance with the provisions of the Motor Vehicles Act as well as terms and conditions of the Insurance Policy as alleged?OPR-1.
6. Relief.::: Downloaded on - 31/12/2020 20:15:04 :::HCHP 4
5. Claimants examined two witnesses in support of their .
claim, whereas none of the respondents including appellant-
Insurance Company led oral evidence. Petitioner has tendered in evidence copy of Pariwar Register Ex.P1, salary certificate Ex.P2, death certificate Ex.P3, post mortem report Ex.P5 and copy of FIR Mark X, whereas appellant-Insurance Company only tendered in evidence, copy of insurance policy Ext. R1/A and copy of RC Ext.
R1/B and closed its evidence. Learned Tribunal below, on the basis of pleadings of parties as well as evidence led on record by respective parties, allowed the claim petition and held claimants entitled to compensation to the tune of Rs. 19,56,000, with interest at the rate of 9% per annum payable by appellant-Insurance Company. In the aforesaid background, appellant-Insurance Company has approached this Court in the instant proceedings, praying therein to set aside the impugned award.
6. Having heard learned counsel for the parties and perused the grounds of appeal, this Court finds that primarily challenge to the impugned award by appellant-Insurance Company is on the ground that since the ill-fated vehicle was being plied in contravention of terms and conditions of the insurance policy, learned Tribunal below ought not have saddled appellant-Insurance Company with liability to pay compensation ::: Downloaded on - 31/12/2020 20:15:04 :::HCHP 5 to the dependents of deceased, who unfortunately expired in the accident.
.
7. Mr. Lalit K. Sharma, Advocate appearing for the appellant-Insurance Company, while making this Court peruse insurance policy, Ext. R-1/A, tendered in evidence, contends that only 10 persons could travel in the vehicle in question as per policy, but, in the case at hand, it stands proved on record that at the time of accident, 12 persons were traveling in the ill-fated vehicle against capacity of 10 as such, learned Tribunal below could not have held appellant-Insurance Company liable to pay compensation. While placing reliance upon judgment in National Insurance Co. Ltd. v. . Anjana Shyam, 2007 ACJ 2129, Mr. Sharma contends that the insurance company can be made liable only in respect of number of passengers from whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of other passengers involved in the accident in case of overloading.
8. Mr. Divya Raj Singh, Advocate, appearing for the claimants, while supporting impugned award, contends that since no evidence, if any, came to be led on record on behalf of appellant-
Insurance Company that at the time of accident vehicle was overloaded, issue with regard to violation of terms and conditions of insurance policy as well as overloading rightly came to be decided against the appellant/insurance company.
::: Downloaded on - 31/12/2020 20:15:04 :::HCHP 69. Having heard learned counsel for the parties, this Court finds that there is no dispute inter se parties with regard to .
alleged accident as well as death of Om Prakash, as such, this court need not go into that aspect of the matter. Similarly, there is no challenge, if any, with regard to findings given by learned Tribunal below that at the time of alleged incident, vehicle was being driven rashly and negligently by the driver of the ill-fated vehicle, who unfortunately, also expired in the accident.
10. Claimant No.1, Smt. Kamla, stepped into witness box as PW-1 and furnished her evidence by way of affidavit Ext. PW-
1/A and also examined PW-2 Sher Mohammad, and successfully proved the factum with regard to accident and death of Om Prakash, on account of rash and negligent driving by driver of the offending vehicle. On the other hand, owner of the vehicle, respondent No.2, successfully proved on record that the vehicle in question was insured at the time of accident by tendering in evidence copy of insurance policy, Ext. R2/B, copy of RC Ext. R2/D, copy of Driving licence Ex.RW/A and copy of contract carriage permit Ex.RW/C. Similarly, owner of vehicle successfully proved on record that driver of offending vehicle was having valid and effective driving licence at the time of alleged accident.
Interestingly, appellant-Insurance Company did not lead any oral evidence in support of its claim that at the time of alleged ::: Downloaded on - 31/12/2020 20:15:04 :::HCHP 7 accident, vehicle was overloaded and same was being driven in violation of the terms and conditions insurance policy, rather, .
appellant-Insurance Company only tendered in evidence Ext. R1/A i.e. insurance policy and copy of RC Ex.R1/B. Perusal of Ext. R1/A i.e. insurance policy certainly reveals that the ill fated vehicle had seating capacity of 10 persons. Perusal of Ext. R1/A and R1/B reveals that appellant-Insurance Company had covered risk of 9 occupants plus one driver, meaning thereby in the event of accident or other eventuality, as envisaged in the insurance policy, appellant-Insurance Company was liable to indemnify insured on account of injuries and /or death of 10 persons, traveling in the vehicle in question. As has been taken note herein above, oral evidence never came to be led on record by appellant-Insurance Company suggestive of the fact that at the time of accident, more than 10 persons were traveling in the vehicle in question. FIR, Ext. PW-2/A, which stands duly proved on record also does not suggest that at the time of alleged accident, more than 10 persons were traveling in the ill fated vehicle rather, it reveals that in the alleged accident only 4-5 people lost their lives. None from appellant-Insurance Company stepped into witness box to state that at the time of accident, vehicle was being driven in violation of terms and conditions policy and more than 10 people were traveling therein.
::: Downloaded on - 31/12/2020 20:15:04 :::HCHP 811. Suggestion came to be put to PW-1, Smt. Kamla, in her cross-examination that at the time of alleged accident, vehicle .
was overloaded and Om Prakash did not pay any fare to travel in the vehicle but, aforesaid suggestion came to be denied by the aforesaid witness for want of knowledge, as such, no benefit, if any, can be claimed by appellant-Insurance Company from the aforesaid evidence, rather, appellant-Insurance Company, with a view to prove overloading, if any, at the time of alleged accident, ought to have led positive evidence in this regard.
12. Though, in the case at hand, respondent No.1 raised an objection that the vehicle in question was not being driven in accordance with Motor Vehicles Act and terms and conditions of the insurance policy, but it has not led any evidence in support of their objection. Hon'ble Apex Court in Dulcina Fernandes and others vs. Joaquim Xavier Cruzand another, r eported in (2013) 10 Supreme Court Cases 646, has reiterated that tribunals are to decide the cases keeping in view preponderance of probabilities and strict proof is not required. Otherwise also, it is well settled that strict proof in terms of Indian Evidence Act and Code of Civil Procedure is not required in the case under Motor Vehicles Act because it is not an adversarial litigation, rather, in such like litigation, courts are obliged to keep in mind purpose, aim and object of grant of compensation. A Coordinate Bench of ::: Downloaded on - 31/12/2020 20:15:04 :::HCHP 9 this Court in FAO's Nos. 339 and 340 of 2008, titled National Insurance Company Ltd. Versus Smt. Parwati & others, .
decided on 3.1.2014, FAO No. 172 of 2006, titled Oriental Insurance Company Vs. Smt. Shakuntla Devi & Others has held that purpose of granting compensation is to be achieved without any delay and procedural wrangles and tangles, have no role to play. Since in the case at hand, appellant-Insurance Company has not led any evidence in support of their pleadings, no fault, if any, can be found with the reasoning assigned by learned Tribunal below, while deciding issues against appellant-Insurance Company.
13. True, it is that in Anjana Shyam (supra), Hon'ble Apex Court has held that insurance company can be made liable only in respect of number of passengers from whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of other passengers involved in the accident in case of overloading but since, in the case at hand, appellant-Insurance Company has not been able to prove overloading, if any, at the time of accident in question, no benefit, if any, can be drawn from aforesaid judgment relied by appellant-
Insurance Company and same cannot be applied in the present facts and circumstances of the case.
::: Downloaded on - 31/12/2020 20:15:04 :::HCHP 1014. In view of detailed discussion made herein above, appeal is dismissed alongwith all pending applications, if any.
.
Interim directions, if any, are vacated.
(Sandeep Sharma)
Judge
December 28, 2020
(shankar)
r to
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