Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(HP) 218

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Mansoor Ahmad Mir, A.C.J.
National Insurance Company Ltd. - Appellant
Versus
Smt.Meena Kumari and others - Respondents
FAO (MVA) No.184 of 2007
National Insurance Company Ltd. – Appellant
Versus
Smt.Meena Kumari and others - Respondents
FAO (MVA) No.546 of 2008
Raksha Devi …..Appellant
Versus
National Insurance Company ltd. and others - Respondents
FAOs (MVA) No. 183, 184 of 2007 and FAO (MVA) No. 546 of 2008.
Decided On : 21 .03.2014

Advocate Appeared:
For the appellant(s):Mr.Ashwani K. Sharma, Advocate, for the appellant in FAO Nos. 183 & 184 of 2007 and Mr. V.S. Rathore, Advocate, for appellant in FAO No. 546 of 2008.
For the respondent(s):Mr. Atul Jhingan, Advocate, with Ms. Shilpa Sood, Mr. Ajay Dhiman and Mr. Rohit Chauhan, Advocates, for the respective respondents in respective appeals. Mr. Suneet Goel, Advocate, for claimant Raksha Devi in respective appeals. Respondent No. 3 ex parte.

The central legal point established in the judgment is the insurer's burden to prove 'fundamental breach' on the part of the insured to avoid liability, as per Section 149 of the Motor Vehicles Act and relevant case laws.

Headnote:
Motor Accidents - Liability of Insurer - Sections 279, 337 and 304-A IPC, Section 149 of the Motor Vehicles Act - The court discussed the liability of the insurer in cases arising from a vehicular accident, the burden of proof on the insurer to establish breach of policy conditions, and the concept of 'fundamental breach' as per relevant case laws.
Fact of the Case:

The appeals arose from a vehicular accident caused by a tractor, resulting in fatalities and injuries. The Tribunal held the insurer liable in two cases and discharged the insurer in another case. The main issue was whether the insurer was rightly saddled with the liability.
Finding of the Court:

The court found that the evidence proved the driver's rash and negligent driving, and the claimants were not traveling in the offending vehicle. The court criticized the Tribunal's decision to discharge the insurer in one case, stating it was against the concept of granting compensation.
Issues: The main issue was the liability of the insurer in the accidents and whether the insurer had proved breach of policy conditions to avoid liability.
Ratio Decidendi: The court held that the insurer must prove 'fundamental breach' on the part of the insured to avoid liability. It emphasized the burden of proof on the insurer and cited relevant case laws to support its decision.
Final Decision: The court dismissed two appeals and allowed one, modifying the impugned award to hold the insurer liable. The insurer was directed to deposit the award amount within two months.

JUDGMENT

Mansoor Ahmad Mir, A.C.J.

FAO No. 183 of 2006 is directed against the judgment and award dated 3.3.2007, made by the Motor Accidents Claims Tribunal (I) Kangra at Dharamshala in Claim Petition No.2-P/II/2004, titled Meena Kumari versus Raksha Devi and others, whereby a sum of Rs.1,50,000/- came to be awarded as compensation in favour of the claimant, for short the “impugned award”.

2. In FAO No. 184 of 2006, the appeal is directed against the same award dated 3.7.2007, made by the same Tribunal in Claim Petition No. 1-P/II/2004, titled Meena Kumari and others versus Raksha Devi and others, whereby a sum of Rs.13,27,255/- came to be awarded as compensation in favour of the claimants and insurer came to be saddled with the liability, for short the “impugned award”.

3. In FAO No. 546 of 2008, appellant/owner/insured has questioned the award dated 1st August, 2008, made by the Motor Accidents Claims Tribunal (I), Kangra at Dharamshala in Claim Petition No. 86-P/II-2004 titled Sonu Kumar versus Raksha Kumari and others whereby a sum of Rs.7, 75,000/- with interest @ 8% from the date of institution till its realization, with costs of Rs.2000/-, came to be awarded in favour of the claimant and against the respondents, for short the “impugned award”.

4. All the three appeals are outcome of a vehicular accident, allegedly caused by Sunil Kumar driver of the offending tractor bearing registration No. HP37A-0248, rashly and negligently on 2.8.2003 at about 11.15 a.m. at “Bon” and hit pedestrians, namely Neha @ Raksha, Kuldip Chand and Sonu Kumar, who died (Sonu Kumar) during the pendency of the appeal and his legal representatives have been brought on record vide order dated 10.10.2012 and are respondents No. 2(a) to 2 (d) in FAO No. 546 of 2008. The other injured, namely, Nehar @ Raksha and Kuldip Chand succumbed to the injuries on the spot and their representatives and dependants, filed claim petitions for grant of compensation, as per breakups given in the claim petitions.

5. The Tribunal in both the awards, which is subject matter of FAOs No. 183 and 184 of 2007, held that the insurer is liable and saddled the insurance with the liability. The insurer has questioned the same by the medium of these two appeals. The driver of the offending vehicle and owner/insured have not questioned the awards, thus the awards attained finality qua them. The only question to be determined in these two appeals is whether the appellant/insurer has been rightly saddled with the liability?.

6. In FAO No. 546 of 2008, the claimant, driver and insurer have not questioned the findings recorded by the tribunal below. Only the owner-insured has questioned the findings, so far as it relate to saddling the owner-insured with the liability and discharging the insurer-insurance company from its liability.

7. I deem it proper to dispose of these three appeals by this common judgment.

8. In Claim Petition titled Meena Kumari and others versus Smt. Raksha Devi and others, the claimants have specifically averred that deceased was along with her father Kuldip Chand standing at a place known as “Bon” on the road side. The offending tractor, which was attached with a trailer, came from Garh side towards Bon, being driven by Sunil Kumar @ Sammi in a high speed, rashly and negligently. The driver lost his control over the vehicle, as a result of which, said tractor turned turtle and hit Neha and Kuldip Chand, who were crushed under the tractor and died on the spot.

9. Claimants have led evidence, oral as well as documentary, and proved the factum of accident which is not questioned by the driver or the owner. Thus, evidence led by the claimants has remained un-rebutted.

10. Insurer examined two witnesses, namely, Sudarshan Kumar, Senior Assistant, Legal Department and Ajay Awasthi, Advocate. Both of them have proved the factum of insurance policy and have not stated anything about the defence taken by the insurer that the injured and deceased were travelli

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Judicial Analysis