Himachal Pradesh High Court
The New India Assurance Co. Ltd vs Sh. Neelmani (Deceased) Through His Lrs on 29 April, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. : 4046 of 2013 Reserved on : 22.04.2024 .
Decided on : 29.04.2024
The New India Assurance Co. Ltd.
....Appellant.
Versus
Sh. Neelmani (deceased) through his LRs.
Coram
r to
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
.....Respondents.
Whether approved for reporting? 1 Yes For the appellant : Mr. B.M. Chauhan, Sr. Advocate, with Ms. Kamakshi Tarlokta, Advocate.
For the respondents : Mr. Sat Prakash, Advocate, for respondent No.1.
: Mr. Vijay Chaudhary, Advocate, for respondent No. 2.
Satyen Vaidya, Judge By way of instant appeal, appellant has assailed award dated 19.11.2012, passed by learned Motor Accident 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/04/2024 20:34:05 :::CIS 2Claims Tribunal, Chamba, District Chamba, H.P. in Claim Petition MACT No. 60 of 2011.
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2. Sh. Neelmani (now deceased), was the original petitioner in MAC Petition No. 60 of 2011 before learned Motor Accident Claims Tribunal, Chamba, District Chamba, H.P. (for short "the Tribunal"), seeking compensation under Section 163-A of the Motor Vehicles his son Sh. Arvind Kumar.
r to Act, 1988 ( for short "the Act") on account of the death of
3. As per case set-up in the claim petition, it was averred that Arvind Kumar was driving vehicle No. HP-73-5005 on 21.05.2011, which met with an accident resulting in the death of Arvind Kumar. The occupation of deceased was stated to be agriculturist and driver. His income was claimed at Rs. 3,300/- per month. The vehicle belonged to respondent No. 2 herein (for short "the owner"). It was also alleged that deceased Sh. Arvind Kumar was 19 years old at the time of his death. The death was stated to be instantaneous on spot.
4. The owner filed reply and admitted the averments made in the petition to the extent that the ::: Downloaded on - 29/04/2024 20:34:05 :::CIS 3 deceased was employed as driver by respondent No. 2. The cause of accident was also admitted to be the emergence .
of mechanical defect. It was also admitted that deceased was earning Rs. 3,300/- per month. As per the owner, he had employed the deceased as driver after verifying the fact that the deceased held and possessed a driving license.
5. The insurer contested the claim petition on the ground that the deceased was not having a valid driving license at the time of accident and thus, the vehicle was being driven in violation of the terms and conditions of the contract of insurance. Rest of the averments made in the claim petition were denying.
6. Learned Tribunal framed the following issues-
1) Whether deceased Arvind Kumar died on account of the use of vehicle bearing No. HP-73-5005 on 21.05.2011 at about 7:00 AM near Ghoga More?
OPP.
2 If issue No. 1 is decided in affirmative as to what amount of compensation, the petitioner is entitled to and from whom? OPP.
3. Whether the driver of the vehicle ( i.e. deceased) was not holding a valid and an effective driving license as alleged if so, to what effect? OPR.
4) Relief.
::: Downloaded on - 29/04/2024 20:34:05 :::CIS 4Issue Nos. 1 and 2 were decided in affirmative, whereas issue No. 3 was decided in negative. The petition was .
accordingly allowed and compensation of Rs. 2,97,000/-
was awarded in favour of the claimant alongwith interest @ 7.5% per annum from the date of the filing of the petition.
7. I have heard learned counsel for the parties and have also gone through the record of the case carefully.
8. Learned Senior Counsel representing the insurer/appellant has laid challenge to the findings recorded by learned Tribunal on issue No. 3 in the first instance. He contended that the findings on issue No. 3 are perverse being against the facts proved on record. It was submitted that the document, Ext. PE, was the extract of family register on which the claimant himself had placed reliance. He asserted that according to this document, the date of birth of deceased Arvind Kumar was 26.11.1993, therefore, the deceased Arvind Kumar had not attained the age of 18 years on the date of his death i.e. 21.05.2011. Reference was made to Section 4 of the ::: Downloaded on - 29/04/2024 20:34:05 :::CIS 5 Act, which prohibits the driving of a vehicle by a person under the age of 18 years. Sub-section 3 of Section 4 .
further prohibits the issuance of learner or driving license unless he is eligible to drive the vehicle. On the basis of such submission, it has further been contended that when the deceased Arvind Kumar was not eligible to drive the vehicle or to get a license to drive, there could have been no possibility of valid driving license being held by him and any license allegedly held by him could not be said to be valid.
9. Learned Senior Counsel for the insurer further submitted that the assumption drawn by learned Tribunal regarding employment of deceased as a driver with the owner was without any legal evidence and rather was result of a surmises and conjunctures.
10. The perusal of impugned award reveals that while deciding issue No. 3, learned Tribunal has taken cognizance of a copy of driving license of deceased produced by the owner as Ext. R-1. A notice has also been taken of the fact that the date of birth of deceased as reflected in driving license, Ext. R-1, was 26.11.1989.
::: Downloaded on - 29/04/2024 20:34:05 :::CIS 6Learned Tribunal, however, held it against the insurer that the insurer could not take benefit of the discrepancy .
with respect to the date of birth of deceased in document Ext. PE (Parivar Register) and document Ext. R-1 (Driving License) as it had failed to prove that the license, Ext. R-1, was fake and forged. The discrepancy in two documents, as noticed above, with respect to the age of deceased was brushed aside, on the ground that the same by itself was not sufficient to declare the driving license to be fake and forged. Thereafter, learned Tribunal proceeded to hold that the onus to prove that the driving license of deceased was not genuine was on the insurer and since the insurer had failed to discharge the burden, it was not within its right to get absolved from the liability.
11. As regards, the fact that the deceased was employed driver of owner, learned Tribunal has placed reliance on the contents of reply filed by the owner wherein he admitted that the deceased was employed by him as a driver after verification of driving license held by deceased. The evidence in the shape of statement of Assistant Sub Inspector, Ravi Kumar (Investigating ::: Downloaded on - 29/04/2024 20:34:05 :::CIS 7 Officer) of the case and report Ext. RW1/A, proved by him has not been given precedence over the alleged .
admission made by owner. Further, the contention of the insurer has been negated on the ground that the insurer had not taken a specific defence with respect to the deceased not being the employee of the owner.
12. The averments made in the claim petition nowhere suggest that the claimant had specifically alleged the deceased to be an employed driver of the owner. The claimant appeared in the witness box as PW-1 after submitting his examination-in-chief by way of an affidavit Ext. PW1/A. In examination-in-chief of PW-1 also, it has not been specifically stated that the deceased was an employed driver of the owner and at the time of accident deceased was driving the vehicle in such capacity. Thus, there was no material on record from which learned Tribunal could infer that the claim had been submitted by the claimant on account of the death of his son by claiming the deceased to be the employed driver of the owner. It being so, the other evidence on record gains significance.
ASI, Ravi Kumar was examined as a witness by the ::: Downloaded on - 29/04/2024 20:34:05 :::CIS 8 insurer. He proved on record his investigation report Ext.
RW1/A, according to which, it was found that one Kamal .
Kumar was the employed driver of the owner. Before accident, said Kamal Kumar had parked the vehicle near the shop of the father of deceased as one of the rear tyre of vehicle had deflated on account of puncture. He had left the keys of the vehicle in the shop on the pretext that he would get the tyre repaired on the next day and thereafter take the vehicle from the spot. In the early morning of 21.05.2011, the deceased unauthorizedly drove the vehicle by affixing tyre of some other vehicle and resultantly caused the accident and his own death. No cross-examination was conducted on RW-1 by the owner which means that the version as given by RW-1, ASI Ravi Kumar was admitted.
13. The owner did not choose to step into the witness box. He did not lead any other evidence except tendering a copy of alleged driving license of the deceased Ext. R-1. Thus, the averments made by owner in reply with respect to the employment of deceased by him after verification of driving license remained without proof. Mere ::: Downloaded on - 29/04/2024 20:34:05 :::CIS 9 pleading, a fact does not amount to its proof. In view of what has been discussed above, the finding returned by .
learned Tribunal to the effect that deceased was an employed driver of owner, cannot be sustained being without any legal evidence.
14. The claimant had placed reliance on documents Ext. PE i.e. abstract of Parivar Register. The claimant while appearing explanation r to as a witness did not render any or version that the entry in the Parivar Register with respect to the date of birth of deceased was incorrect. Claimant while appearing as PW-1 simply stated that deceased was aged 19 years. Needless to say that the vague oral version of PW-1 cannot supersede the documentary evidence. In this view of the matter, learned Tribunal was not right in ignoring such a material piece of evidence.
15. As regards, reliance on driving license, Ext. R-1, by learned Tribunal, again there is no hesitation to say that some is against tenets of law. In the first instance, existence of documents or its contents were not proved.
It was not that the original driving license was placed on ::: Downloaded on - 29/04/2024 20:34:05 :::CIS 10 record. The owner had filed only a photocopy of license which was exhibited as Ext. R-1. Mere exhibition of .
documents does not dispensed with the proof of its content. No evidence was laid by the owner to prove the contents of the document, Ext. R-1. Hence, the reliance on such document by learned Tribunal was uncalled for.
Secondly, the date of birth mentioned in the driving lience could not be held to be the proof of the age of the deceased. There was no material to suggest that on what basis such an entry was made. Therefore, precedence given by learned Tribunal to the entry as to date of birth in document Ext. R-1 over the entry made as to the date of birth of deceased in Ext. PE cannot be countenanced. It is clearly evident from the material on record that on the date of accident, the deceased Arvind Kumar was a minor and keeping in view the prohibition laid by Section 4 of the Act, he was neither competent to hold a driving license nor could have held any such authorization.
16. The insurer is liable to indemnify the insured only in case the insured has not violated terms and conditions of the contract of insurance. In the instant ::: Downloaded on - 29/04/2024 20:34:05 :::CIS 11 case, the proof of the fact that the vehicle at the time of .
accident was being driven by a person not having a valid driving license is sufficient to absolve the insurer from its liability to indemnify the insured.
17. In result, the appeal is allowed to the extent that the insurer is held not liable to discharge the liability of payment of compensation to the claimant and consequently, the lability is on the insured.
18. Learned Tribunal has further erred in awarding the compensation without adhering to the formulae prescribed by 2nd Schedule of the Act. Since, the petition was under Section 163-A of the Act, the compensation was liable to be calculated on the basis of criteria provided in 2nd Schedule to the Act. For such reason, award is set-aside and the matter is remanded back to learned Motor Accident Claims Tribunal, Chamba, District Chamba, H.P., to access the compensation afresh in light of the observations made hereinabove.
::: Downloaded on - 29/04/2024 20:34:05 :::CIS 1219. The appeal, is accordingly, disposed of, so also the pending miscellaneous application(s), if any.
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(Satyen Vaidya)
29th April, 2024 Judge
(sushma)
r to
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