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2016 Supreme(HP) 283
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mansoor Ahmad Mir, J.
The New India Assurance Company Limited - Appellant
Versus
Kumari Sujata and others - Respondents
FAO No. 237 of 2010
Decided On : 08-04-2016
Advocate Appeared:
For the Appellant : Mr. Praneet Gupta
For the Respondents: Mr. Rupinder Singh, R1&2, Mr. I.N. Mehta, R3&4
The court emphasized the importance of proving rash and negligent driving, insurance coverage, and valid license in motor accident cases and highlighted the need to award interest rates based on prevailing legal precedents.
Headnote:
Motor Accident - Compensation - MV Act Section 147, Section 149 - The court upheld the findings that the driver drove the vehicle rashly and negligently, the vehicle was insured, and the driver had a valid license. The court also modified the interest rate awarded based on prevailing rates and legal precedents.
Fact of the Case:
The appeal was against a judgment awarding compensation for a motor accident. The claimants, driver, and owner-insured did not challenge the award. The insurer appealed on grounds of overloading and high interest rate. The court upheld findings of rash and negligent driving, insurance coverage, and valid license, and modified the interest rate based on legal precedents.
Finding of the Court:
The court upheld findings of rash and negligent driving, insurance coverage, and valid license, and modified the interest rate based on legal precedents.
Issues: The issues included the cause of death, entitlement to compensation, liability of the indemnifier, and validity of insurance and driving license.
Ratio Decidendi: The court upheld findings of rash and negligent driving, insurance coverage, and valid license, and modified the interest rate based on legal precedents.
Final Decision: The impugned award was modified, and the appeal was disposed of in favor of the claimants with directions to release the awarded amount.
Mansoor Ahmad Mir, J.
This appeal is directed against the judgment and award, dated 2nd March, 2010, made by the Motor Accident Claims Tribunal-II, Solan, District Solan, Himachal Pradesh (for short "the Tribunal") in M.A.C. Petition No. 42S/2 of 2009, titled as Kumari Sujata and another versus Vinay Bhagnal and others, whereby compensation to the tune of Rs.25,44,800/- with interest @ 12% per annum from the date of filing of the claim petition till its realization and costs assessed at Rs.10,000/- came to be awarded in favour of the claimants and the insurer came to be saddled with liability (for short “the impugned award”).
2. The claimants, the driver and the owner-insured of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.
3. The appellant-insurer has questioned the impugned award on the grounds taken in the memo of the appeal.
4. Learned counsel for the appellant-insurer argued that the accident has taken place due to the overloading of the offending bus, thus, the owner-insured has committed a willful breach. Further argued that the interest awarded is on the higher side.
5. By the medium of the claim petition, the claimants have claimed compensation to the tune of Rs.30,00,000/-, as per the breakups given in the claim petition.
6. The claim petition was resisted by the respondents on the grounds taken in the respective memo of objections.
7. On the pleadings of the parties, following issues came to be framed by the Tribunal:
“1. Whether death of Kaushalaya Sharma was caused on account of rash and negligent driving by respondent No. 2, as alleged? OPP
2. If issue No. 1 is decided in affirmative whether the petitioners are entitled for compensation, if so the amount thereof? OPP
3. In case compensation is awarded, it is to be paid by respondent No. 3 being indemnifier of respondent No. 1, as alleged? OPR1& 2
4. Whether the offending vehicle was being driven by respondent No. 2 without driving licence and in violation of the terms and conditions of the insurance policy, as alleged? OPR3
5. Relief.”
8. The claimants have examined Dr. Ashok Handa as PW1, Shri Ajay Sharma as PW3, Constable Pritam Singh as PW4, Shri Kewal Krishan as PW5 and one of the claimants, namely Sujata, herself appeared in the witness box as PW2. The owner-insured, namely Shri Vinay Bhagnal, and the driver, namely Shri Ramesh Kumar, themselves stepped into the witness box as RW1 and RW3, respectively, and examined Shri Surender Kumar as RW2, HC Ranjit Singh as RW4 and Shri Anokhi Ram as RW5.
9. It is apt to record herein that the insurer has not examined any witness, thus, the evidence led by the claimants, the driver and the owner-insured of the offending vehicle has remained unrebutted so far it relates to the insurer.
Issue No. 1:
10. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimants have proved that the driver of the offending vehicle, namely Shri Ramesh Kumar, had driven the offending vehicle, i.e. bus, bearing registration No. HP-648097, rashly and negligently on 4th May, 2009, near the place Nai Natti at about 4.05 P.M. and caused the accident, in which deceased-Kaushalaya Sharma sustained injuries and succumbed to the injuries. There is no challenge to the said findings. Accordingly, the findings returned by the Tribunal on issue No. 1 are upheld.
11. Before I deal with issue No. 2, I deem it proper to determine issues No. 3 and 4.
Issue No. 3:
12. It was for the owner-insured and the driver of the offending vehicle to plead and prove that the offending vehicle was insured, have placed on record the documents, which do disclose that the offending vehicle was duly insured at the time of the accident and its seating capacity was 42'. Their evidence has remained unrebutted. Accordingly, the findings returned by the Tribunal on issue No. 3 are upheld.
Issue No. 4:
13. It was for the insurer to plead and prove that the driver of the off
