Himachal Pradesh High Court
Oriental Insurance Co. Ltd vs Rita Devi And Others on 1 July, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No.: 207 of 2011.
Decided on : 01.07.2016
Oriental Insurance Co. Ltd. .....Appellant
Versus
.
Rita Devi and others ... Respondents
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice
Whether approved for reporting? Yes.
of
For the appellant: Mr.Deepak Bhasin, Advocate.
For the respondents:
rt Mr.Rajiv Rai, Advocate, for
respondents No.1 to 4.
Mr.Tara Singh Chauhan, Advocate,
for respondent No.5.
___________________________________________________________
Mansoor Ahmad Mir, Chief Justice (Oral)
This appeal is directed against the award, dated 19th February, 2011, passed by the Motor Accident Claims Tribunal, Bilaspur, District Bilaspur, H.P. (for short, "the Tribunal") in Claim Petition No.57 of 2008, titled Rita Devi and others vs. Kishori Lal and another, whereby compensation to the tune of Rs.4,30,000/-, alongwith interest at the rate of 7.5% per annum from the date of filing of the claim petition till the amount is deposited, came to be awarded in favour of the claimants and ::: Downloaded on - 15/04/2017 20:44:34 :::HCHP 2 the insurer was saddled with the liability, (for short the "impugned award").
2. The claimants and the insured/driver have not questioned the impugned award on any ground, thus, the same .
has attained finality so far as it relates to them.
3. Feeling aggrieved, the insurer has challenged the impugned award by the medium of instant appeal on the ground that the Tribunal has wrongly fastened it with the liability.
of Brief facts:
4. The claimants filed the Claim Petition before the rt Tribunal averring that on 24th August, 2008, at about 5.00 p.m., Sanjeev Kumar was coming on his Motor Cycle No.HP-24A-6111 from Bhager side towards Beri and truck bearing No.HP-51-1612 being driven by driver-cum-owner namely Kishori Lal rashly and negligently came from opposite side and hit the motor cycle of the deceased, resulting into multiple injuries to the deceased and ultimately, he succumbed to the same. Thus, the claimants, being the dependants, filed the claim petition claiming compensation to the tune of Rs.20.00 lacs, as per the break-ups given in the claim petition.
5. Respondents resisted the claim petition and filed replies.
::: Downloaded on - 15/04/2017 20:44:34 :::HCHP 36. Following issues came to be framed by the Tribunal:
"1.Whether the accident and consequent death of deceased Shri Sanjiv Kumar caused on 24.8.2008 at about 5.00 P.M. at village Kandraur, District Bilaspur, H.P. was due to rash and .
negligent driving of Truck No.HP-51-1612 being driven by respondent No.1, as alleged, if so, its effect? ....OPP
2. If issue No.1 supra is proved in affirmative, whether the petitioners are entitled to compensation, if so, to what extent and from whom? OPP
3. Whether the petition is not maintainable, as alleged? OPRs.
4. Whether the present claim petition is bad for non-joinder and of mis-joinder of necessary parties as alleged? OPRs.
5. Whether the offending vehicle was being driven by its driver without valid and effective driving licence, as alleged? OPR-3 rt
6. Whether the offending vehicle was being driven without valid documents i.e. registration certificate, fitness certificate and valid route permit, as alleged? OPR-3
7. Whether the accident took place due to contributory negligence on the part of driver of the truck and the deceased while driving his motor cycle No.HP-24A-6111, as alleged, if so, its effect? OPR-3.
8. Relief"
7. In order to prove their respective claims, the parties led their evidence. Heard the learned counsel of the parties and have gone through the record.
8. The claimants have proved that on the fateful day the offending truck was being driven by its driver rashly and negligently, who had hit the motor cycle on which the deceased ::: Downloaded on - 15/04/2017 20:44:34 :::HCHP 4 Sanjiv Kumar was traveling and had caused the accident, in which the deceased Sanjiv Kumar sustained injuries and succumbed to the same. The Tribunal has rightly made discussion in paragraph 10 to 13 of the impugned award and has rightly .
held that the accident had occurred only due to the rash and negligence driving of the driver of the offending truck.
Accordingly, issues No.1 and 7 came to be rightly decided by the Tribunal in favour of the claimants, which findings are liable to be of upheld and the same are upheld.
9. As far as issues No.3 and 4 are concerned, the rt Tribunal has recorded categorically that the insurer has not led any evidence to prove these issues. Accordingly, these issues rightly came to be decided against the insurer.
10. To prove issues No.5 and 6, the onus was on the insurer, has not led any evidence. 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 time of accident, in which it has failed. The insurer has also failed to prove that the offending vehicle was being driven without valid documents.
Factum of insurance is not in dispute. Accordingly, it is held that the Tribunal has rightly decided issues No.5 and 6 against the insurer.
::: Downloaded on - 15/04/2017 20:44:34 :::HCHP 511. The claimant has not questioned the impugned award on the ground of adequacy of compensation. Therefore, the findings returned by the Tribunal on issue No.2 are upheld.
12. Having said so, there is no merit in the appeal filed by .
the appellant and the same is dismissed. The Registry is directed to release the amount of compensation in favour of the claimant-
injured forthwith, strictly in terms of the impugned award.
of
July 01, 2016. ( Mansoor Ahmad Mir )
(Tilak) Chief Justice
rt
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