Himachal Pradesh High Court
Prem Singh vs Bimla Devi And Others on 3 June, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAOs No. 547 & 603 of 2008
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Decided on: 03.06.2016
FAO No. 547 of 2008
Prem Singh ...Appellant.
of
Versus
Bimla Devi and others ...Respondents.
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FAO No. 603 of 2008
Ram Pal and another ...Appellants.
Versus
Bimla Devi and others ...Respondents.
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting? Yes.
FAO No. 547 of 2008:
For the appellant: Mr. Manoj Bagga, Advocate.
For the respondents: Mr. Jagdish Thakur, Advocate, for
respondent No. 1.
Mr. Tara Singh Chauhan, Advocate,
for respondents No. 2 and 4.
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Mr. B.M. Chauhan, Advocate, for
respondent No. 3.
........................................................................................................
.
FAO No. 603 of 2008:
For the appellants: Mr. Tara Singh Chauhan, Advocate.
For the respondents: Mr. Jagdish Thakur, Advocate, for
respondent No. 1.
Mr. Manoj Bagga, Advocate, for
of
respondent No. 2.
Mr. B.M. Chauhan, Advocate, for
respondent No. 3.
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Mansoor Ahmad Mir, Chief Justice. (Oral)
Both these appeals are outcome of judgment and award, dated 13th February, 2004, made by the Motor Accident Claims Tribunal, Una, Himachal Pradesh (for short "the Tribunal") in MAC Petition No. 29 of 1999, titled as Smt. Bimla Devi versus Surinder Kumar and others, whereby compensation to the tune of ₹ 2,45,400/ with interest @ 9% per annum from the date of filing of the claim petition till its realization came to be awarded in favour of the claimant and the insurer was directed to satisfy the award with a right of recovery (for short "the impugned award").
::: Downloaded on - 15/04/2017 20:33:52 :::HCHP 32. The insurer and the claimant have not questioned the impugned award on any count, thus, has attained finality .
so far it relates to them.
3. The appellants in both the appeals, i.e. the driver and the ownersinsured of the offending vehicle, have of questioned the impugned award on the ground that the Tribunal has fallen in an error in granting right of recovery to the insurer.
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4. Thus, the only question to be determined in both these appeals is - whether the Tribunal has rightly recorded the findings vizaviz issues No. 3 to 5? The answer is in the negative for the following reasons:
5. The claimant invoked the jurisdiction of the Tribunal for grant of compensation, as per the breakups given in the claim petition on the ground that she became the victim of the motor vehicular accident, which was caused by the driver, namely Surinder Kumar, while driving tractor trolley, bearing registration No. PB160466, rashly and negligently, on 10th September, 1998, at about 2.30 P.M. at Village Raisari, ::: Downloaded on - 15/04/2017 20:33:52 :::HCHP 4 Tehsil and District Una, in which Tilak Raj sustained injuries and succumbed to the injuries.
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6. The respondents in the claim petition resisted the claim petition on the grounds taken in the respective memo of the objections.
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7. Following issues came to be framed by the Tribunal on 17th March, 2003:
rt "1. Whether the death of Tilak Raj took place due to rash and negligent driving of tractor No. PB16466 by respondent Surinder Kumar? OPP
2. In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and against whom? OPP
3. Whether this Court has no jurisdiction to try the petition, as alleged? OPR
4. Whether the driver of the tractor was not holding a valid and effective driving licence at the relevant time, if so, its effect? OPR3
5. Whether the respondent Insurance Company is not liable to indemnify the owner/insurer as alleged? OPR3
6. Relief."
8. Parties have led evidence.
::: Downloaded on - 15/04/2017 20:33:52 :::HCHP 5Issues No. 1 and 2:
9. The Tribunal after scanning the evidence, oral as .
well as documentary, has rightly held that the accident has taken place due to the rash and negligent driving of offending vehicle by its driver. Even otherwise, the findings returned by the Tribunal on issues No. 1 and 2 have not been questioned, of thus, the same are accordingly upheld.
Issue No. 3:
10. rt Admittedly, the accident has taken place due to the use of the motor vehicle at Village Raisari, Tehsil and District Una and the claimant is also the resident of the said area. Thus, the Tribunal has the jurisdiction to try the claim petition. Accordingly, the findings returned by the Tribunal on issue No. 3 are upheld.
Issues No. 4 and 5:
11. Both these issues are to be determined together being interlinked and interdependent.
12. It was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence at the relevant point of time. The ::: Downloaded on - 15/04/2017 20:33:52 :::HCHP 6 insurer has not led any evidence to prove that the driver of the offending vehicle was not having a valid and effective driving .
licence to drive the offending vehicle at the time of the accident. The insurer has not even made an effort to ask the legal representatives of the deceaseddriver to place on record of the driving licence or to examine any official from the office of the Registering and Licensing Authority, thus, has failed to prove the same.
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13. The factum of insurance is not in dispute. Even otherwise, the insurance policy, Ext. RX, is on the file, which does disclose that the offending vehicle was insured at the relevant point of time.
14. In the given circumstances, it cannot be said that the ownerinsured has committed willful breach of the terms and conditions of the insurance policy.
15. Viewed thus, the Tribunal has fallen in an error in discharging the insurer. Accordingly, the findings returned by the Tribunal on issues No. 4 and 5 are set aside and the insurer is saddled with liability.
::: Downloaded on - 15/04/2017 20:33:52 :::HCHP 716. At this stage, learned counsel for the insurer stated at the Bar that the awarded amount has already been .
deposited before the Tribunal. Mr. Jagdish Thakur, learned counsel for the claimant, also stated at the Bar that his client has already received the awarded amount. Their statements of are taken on record.
17. Having said so, the impugned award is modified, rt as indicated hereinabove and the appeals are allowed.
18. Send down the record after placing copy of the judgment on Tribunal's file.
(Mansoor Ahmad Mir) Chief Justice 3rd June, 2016 ( rajni ) ::: Downloaded on - 15/04/2017 20:33:52 :::HCHP