Himachal Pradesh High Court
Rajiv Kumar @ Raju vs Smt. Raksha Devi And Others on 23 September, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 396 of 2010.
Date of decision: 23rd September, 2016.
Rajiv Kumar @ Raju .....Appellant.
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Versus Smt. Raksha Devi and others ........Respondents Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
of Whether approved for reporting ?1 Yes.
For the appellant: Mr. Sunny Modgil, Advocate. For the respondents: rt Mr.Divya Raj Singh, proxy counsel for respondents No. 1 to 7.
Mr. J.S. Bagga, Advocate, for respondent No.9.
Nemo for respondent No.8.
Mansoor Ahmad Mir, Chief Justice, (Oral) This appeal is directed against the judgment and award dated 30.7.2010, made by the Motor Accident Claims Tribunal-II Una, H.P., in MACP No.09/2008, titled Smt. Raksha Devi and others versus Sh. Rakesh Kumar and others, for short "the Tribunal", whereby compensation to the tune of Rs.3,43,500/- alongwith interest @9% with fee of learned counsel to the tune of Rs.1,000/- came to be awarded in favour of the claimants and insurer was 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.::: Downloaded on - 15/04/2017 21:17:49 :::HCHP -2-
saddled with the liability with right of recovery from the owner/insured, hereinafter referred to as "the impugned award", for short.
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2. The only question to be determined in this appeal is-whether the Tribunal has rightly granted the right of recovery to the insurer. The answer is in negative for the following reasons.
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3. Following issues were framed by the Tribunal. rt "(i) Whether deceased Kashmir Singh had died on 3.1.08 at about 6.35 P.M. Near Amb-Una main road in between village Bhera and Dussara because of the rash and negligent driving of respondent No.2 ?OPP
(ii) If issue No. 1 is proved in affirmative as to what amount of compensation the petitioners are entitled to and from whom? OPP.
(iii) Whether the respondent No. 2 was not holding a valid and an effective driving licence as alleged. If so, its effect thereto? OPR.
(iv) Whether the vehicle in question was being used in violation of the expressed terms and conditions of the insurance policy as alleged. If so, its effect thereto? OPR.
(v) Relief."
4. The offending vehicle was a tractor-trolley and the driver was having licence to drive Light Motor Vehicle. The Tribunal has held that the driver was not ::: Downloaded on - 15/04/2017 21:17:49 :::HCHP -3- having a valid driving licence. It is apt to reproduce para 25 of the impugned award herein.
"25.Section 2 (26) of the Act defines the word .
'motor car'. The tractor does not fall within the definition of a 'motor car'. This clearly indicates that the respondent No. 2 was not having a valid driving licence to drive the tractor trolley. Otherwise too, the same was not being used for agricultural purposes or any purpose subservient of to agriculture at the material time. Therefore, it can be safely said that neither the respondent No. 2 was holding a valid and effective licence to drive rt the tractor trolley nor the same was being used in consonance with the terms and conditions of the insurance policy. In view of these reasons, the insurance company (respondent No.3) is not liable to indemnify the owner/insured(respondent No.1) (The Oriental Insurance Company Limited- Appellant versus Vidya Devi and others- Respondents, 2009 (1) Shim.LC 99. relied upon)."
5. The learned Tribunal has lost sight of Section 2 (21) of the Motor Vehicles Act, for short "the Act", which reads as under:
"2 (21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road- roller the unladen weight of any of which, does not exceed 2 [7500] kilograms;"
6. Thus, it does include tractor.
::: Downloaded on - 15/04/2017 21:17:49 :::HCHP -4-7. This Court in FAO No. 187 of 2010, titled as Baldev Singh versus Jagdish Chand & another, decided on 8th April, 2016, has held that tractor falls within the .
definition of 'light motor vehicle'.
8. The same principle has been laid down by this Court in the cases titled as Oriental Insurance Company versus Gulam Mohammad (since deceased) & others, of reported in Latest HLJ 2014 (HP) 244; Joginder Singh @ Pamma versus Vikram @ Vickey and others, reported in rt Latest HLJ 2014 (HP) Suppl. 292; and Oriental Insurance Company versus Sudesh Kumari and others, reported in 2014 (2) Shim. LC 918.
9. The Punjab and Haryana High Court in FAO No. 5114 of 2009 titled, The New India Assurance Company Limited vs. Mahender Singh decided 26.10.2009 held that the driver, who was driving a tractor, was holding a licence to drive car, jeep and motor cycle only, is also competent to drive tractor and the Insurance company was held liable to pay the compensation.
10. The claimants examined three witnesses, including claimant No. 1. The insured and the insurer have not examined any witness. Only driver has ::: Downloaded on - 15/04/2017 21:17:49 :::HCHP -5- stepped into the witness-box as RW-1. Thus, the insurer has failed to discharge the onus viz-a-viz issues No. 3 and 5. Having said so, the insurer has failed to .
prove that the owner has committed willful breach and is entitled to seek exoneration. Even otherwise, as held hereinabove, the driver was having a valid and effective driving licence to drive the offending vehicle.
of Accordingly, the findings returned by the Tribunal, in para 25 of the impugned award are set aside and the rt insurer is saddled with the liability.
11. The Tribunal has awarded interest @9% per annum. However, interest was to be awarded at rate of 7.5% per annum, for the following reasons.
12. It is a beaten law of the land that the rate of interest should be awarded as per the prevailing rates, in view of the judgments rendered by the Apex Court in cases titled as United India Insurance Co. Ltd. and others versus Patricia Jean Mahajan and others, reported in (2002) 6 SCC 281; Satosh Devi versus National Insurance Company Ltd. and others, reported in 2012 AIR SCW 2892; Amrit Bhanu Shali and others versus National Insurance Company Limited and others reported in (2012) 11 SCC 738; Smt. Savita versus Binder Singh & others, reported in ::: Downloaded on - 15/04/2017 21:17:49 :::HCHP -6- 2014, AIR SCW 2053; Kalpanaraj & others versus Tamil Nadu State Transport Corpn., reported in 2014 AIR SCW 2982; Amresh Kumari versus Niranjan Lal Jagdish Pd. Jain .
and others, reported in (2015) 4 SCC 433, and Mohinder Kaur and others versus Hira Nand Sindhi (Ghoriwala) and another, reported in (2015) 4 SCC 434, and discussed by this Court in a batch of FAOs, FAO No. 256 of 2010, titled of as Oriental Insurance Company versus Smt. Indiro and others, being the lead case, decided on 19.06.2015.
13. rt Accordingly, interest @7.5% per annum is awarded from the date of claim petition till realization of the amount.
14. Viewed thus, the appeal is allowed and impugned award is modified, as indicated hereinabove.
15. The insurer is directed to deposit the amount, within six weeks from today before this Registry. On deposit, the entire amount be released to the claimants, strictly, in terms of the conditions contained in the impugned award, through payees' cheque account or by depositing the same in their bank accounts. The statutory amount deposited by the appellant be released in favour of the claimants as costs of this appeal.
::: Downloaded on - 15/04/2017 21:17:49 :::HCHP -7-16. Send down the record forthwith, after placing a copy of this judgment.
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September 23, 2016. (Mansoor Ahmad Mir) (cm Thakur) Chief Justice.
of rt ::: Downloaded on - 15/04/2017 21:17:49 :::HCHP