Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(HP) 215

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, A.C.J.
FAOs (MVA) No. 183, 184 of 2007 and FAO (MVA) No. 546 of 2008. Date of decision 21. 03. 2014
Raksha Devi Versus National Insurance Company ltd. and others

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 respon dents 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 requirement for the insurer to prove willful breach of the insurance policy by the insured to avoid liability under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988.

Headnote:
Motor Accidents - Liability of Insurer - Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 - Summary of Acts and Sections: The court discussed the liability of the insurer under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 and emphasized the need for the insurer to prove willful breach of the insurance policy by the insured. The court referred to the judgments in National Insurance Co. Ltd. v. Swaran Singh & others and Pepsu Road Transport Corporation v. National Insurance Company to highlight the legal principles governing the liability of the insurer.
Fact of the Case:

The appeals arose from a vehicular accident caused by a tractor, resulting in fatalities and injuries. The claimants sought compensation, and the main issue was the liability of the insurer.
Finding of the Court:

The court found that the insurer failed to prove that the claimants were traveling in the offending vehicle, and the evidence supported the claimants' version of the accident. The court held that the insurer was liable based on the un-rebutted evidence and the factum of the insurance policy.
Issues: The main issue was whether the insurer had been rightly saddled with the liability, and the court also addressed the discrepancy in the tribunal's findings in different cases arising from the same accident.
Ratio Decidendi: The court emphasized the need for the insurer to prove willful breach of the insurance policy by the insured to avoid liability, citing legal principles from the judgments in National Insurance Co. Ltd. v. Swaran Singh & others and Pepsu Road Transport Corporation v. National Insurance Company.
Final Decision: The court dismissed FAOs No. 183 and 184 of 2007 and allowed FAO No. 546 of 2008, modifying the impugned award and directing the insurer 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 `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 `1 3,27,255/- 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 `7, 75,000/- with interest @ 8% from the date of institution till its realization, with costs of `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 travelling in the offending t

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Judicial Analysis

2014 Supreme(HP) 215

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Coram: The Hon'ble Mr. Justice Mansoor Ahmad Mir, A.C.J. FAOs (MVA) No. 183, 184 of 2007 and FAO (MVA) No. 546 of 2008. Date of decision 21. 03. 2014 Raksha Devi Versus National Insurance Company ltd. and others

The central legal point established in the judgment is the requirement for the insurer to prove willful breach of the insurance policy by the insured to avoid liability under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988.

Judicial Analysis

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, A.C.J.
FAOs (MVA) No. 183, 184 of 2007 and FAO (MVA) No. 546 of 2008. Date of decision 21. 03. 2014
Raksha Devi Versus National Insurance Company ltd. and others