Liability in motor accidents, maintainability of claim petitions under the Motor Vehicles Act, validity of insurance cover notes, and burden of proof for claimants.

Mansoor Ahmad Mir, J.

Challenge in this appeal is to the judgment and award, dated 26th August, 2009, made by the Motor Accident Claims Tribunal (II), Kangra at Dharamshala, H.P. (for short "the Tribunal") in MACP No. 16-K/05, titled as Sumna Devi and others versus Daljit Singh and another, whereby compensation to the tune of Rs. 4,23,000/- with interest @ 6% per annum from the date of the claim petition till its realization came to be awarded in favour of the claimants and the appellant-owner-insured came to be saddled with liability (for short “the impugned award”).

2. The claimants and the insurer have not questioned the impugned award on any count, thus, the same has attained finality so far it relates to them.

3. The appellant-owner-insured has questioned the impugned award on the ground that the Tribunal has fallen in an error in saddling him with liability on the grounds taken in the memo of the appeal.

4. The claimants invoked the jurisdiction of the Tribunal in terms of Section 166 of the Motor Vehicles Act, 1988 (for short “MV Act”) and prayed for grant of compensation to the tune of Rs. 15,50,000/-, as per the breakups given in the claim petition.

5. The claimants have specifically averred in para 24 of the claim petition that there was some mechanical defect in the offending vehicle, but the appellant-owner-insured had not disclosed the same to the driver, deceased-Nand Lal, who became the victim of the accident because of the act of the appellant-owner-insured.

6. The respondents in the claim petition have resisted the same on the grounds taken in the respective memo of objections.

7. Appellant-owner-insured has denied the said factum in para 5 of the preliminary objections and reply to para 24 of the claim petition. Virtually, he has taken a ground that the offending vehicle was taken away by an unidentified person without any permission and authority and the owner-insured has neither committed any negligence nor has authorized deceased-Nand Lal to drive the vehicle. It has specifically been averred in para 16 of the reply on merits that he had never engaged deceased-Nand Lal as a driver.

8. On the pleadings of the parties, following issues came to be framed by the Tribunal on 20th December, 2005:

“1. Whether the deceased Nand Lal died in a motor accident caused on 8/11/2003 at 10 P.M. on account of rash and negligent driving of Maruti car bearing No. PB-08 N-6858 by its driver, at Dharamshala? OPP

2. If issue No. 1 is proved in affirmative to what amount of compensation the petitioner are entitled and from whom? OPP

3. Whether the petition is not maintainable? OPR

4. Whether the driver of the offending vehicle was not possessed a valid and effective driving licence at the time of accident? OPR

5. Whether the Maruti car No. PB-08 N-6858 was not insured at the relevant time with the respondent No. 2? OPR-2

6. Relief.”

9. The claimants have examined Shri Ishwar Dass as PW2, Shri Pyare Lal as PW3 and one of the claimants, namely Smt. Sumna Devi, herself appeared in the witness box as PW1. The appellant-owner-insured has examined HHC Tungal Singh as RW1, Smt. Sarvjeet Kaur as RW4 and has himself appeared in the witness box as RW2. The insurer examined Shri Kesar Dass, Manager, New India Assurance Company as RW3.

Issue No. 1:

10. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimants have proved that deceased-Nand Lal was asked by the appellant-owner-insured to drive the vehicle without disclosing the factum of mechanical defect, rather, concealed the same.

11. The Tribunal has discussed the pleadings, evidence of the witnesses and held that the offending vehicle had some mechanical defect, deceased-Nand Lal, driver, was asked by the appellant-owner-insured for assistance, who provided assistance. Further held that he had not taken the vehicle forcibly and the plea taken by the appellant-owner-insured was not tenable.

12. I have gone through the evidence. The findings returned by the Tr