The insurer must prove the breach of policy conditions committed by the insured to avoid liability, as per Section 149(2)(a)(ii) of the Motor Vehicles Act.

Mansoor Ahmad Mir, C.J. (Oral)

Challenge in this appeal is to the award, dated 30th June, 2012, passed by Motor Accident Claims Tribunal, Chamba, H.P., (for short, the Tribunal), in Claim Petition No.43 of 2010, titled as Sumitra Devi and others versus Raj Kumar Sharma and others, whereby compensation to the tune of Rs.6,86,000/- stands awarded in favour of the claimants (respondents No.1 to 5 herein), and against the appellant, with interest at the rate of 7.5% per annum from the date of filing of the Claim Petition, (for short, the impugned award).

Brief facts:

2. On 9th June, 2010, one Mulkh Raj was traveling in a vehicle bearing registration No.JK-02-8349, which was being driven by its driver, namely, Surmi rashly and negligently. The said vehicle met with an accident at Kurali Nallah in District Chamba, H.P., as a result of which Mulkh Raj sustained injuries leading to his immediate death. It was averred that the deceased was traveling in the offending vehicle to fetch water for laying the lintel of the house of his uncle. Thus, the claimants filed the claim petition claiming compensation to the tune of Rs.10.00 lacs, as per the break-ups given in the Claim petition.

3. During the pendency of the Claim Petition, it appears that the claimants had laid a motion for leave to amend the claim petition in terms of Order 6 Rule 17 Code of Civil Procedure, which was granted and the amended petition was filed. But, inadvertently, the requisite amendment was not carried out in the amended petition and again permission was granted and the amended petition was filed.

4. The insurer, owner/insured and the driver filed replies to the amended petition.

5. On the pleadings of the parties, the following issues were settled by the Tribunal:

“1. Whether deceased Mulkh Raj died on 9.6.2010 at about 8.10 PM at Kurali Nali near Belly Dhundiyara Bangla, Tehsil Dalhousie District Chamba because of rash and negligent driving of vehicle no.JK02-8349 by respondent no.2 Surmi as alleged? OPP

2. If issue no.1 is proved in the affirmative, whether the petitioners are entitled to compensation, if so, how much and from whom? OPP

3. Whether the petition is not maintainable in the present form? OPR3

4. Whether the driver of the vehicle in question was not holding a valid and effective driving licence at the time of accident in question, if so, its effect? OPR3

5. Whether the vehicle in question was being driven at the relevant time against the terms and conditions of Insurance

6. Whether the deceased was traveling in the vehicle in question as gratuitous passenger, if so, it effect? OPR3

7. Whether the petitioners have filed the petition in collusion with respondent no.1 as alleged, if so, its effect? OPR3

8. Relief.”

6. In support of their claim, the claimants have examined PW-1 Dr.Maan Singh, PW-2 Sumitra Devi (one of the claimants), PW-3 Badri Ram, PW-4 Parmod Singh, and PW-5 HC Arup Kumar. Claimants have also placed on record documents PMR Ext.PW-1/A, Affidavits of Sumitra Devi and Badri Ram Exts.PW-2/A & PW-3/A, Salary certificate Ext.PW-4/A, Copy of FIR Ext.PW-5/A, Copy of Pariwar Register Ext.PA and death certificate Ext.PW-PB. Respondents have also placed on record copy of driving licence, copy of R.C., fitness certificate, goods carriage permit and insurance policy as Exts.R.1, R.2, R.3, R.4 and R.5, respectively. It is apt to record herein that the insurer/appellant has not led any evidence. Thus, the evidence led by the claimants has remained un-rebutted.

7. The claimants, the owner/insured and the driver have not questioned the impugned award, has attained finality so far as it relates to them.

8. The insurer has challenged the impugned award on the ground that the owner has committed breach and the Tribunal has fallen in error in saddling the liability with the appellant-insurer. The learned counsel for the appellant-insurer argued that the owner has the route permit to ply the offending vehicle in the State of Jammu and Kashmir a