The liability of the insurer under the Motor Vehicles Act, 1988, is contingent upon the owner-insured committing a willful breach, and the court upheld the findings of the Tribunal on various issues.

Mansoor Ahmad Mir, J.

Subject matter of this appeal is judgment and award, dated 24th February, 2010, made by the Motor Accident Claims Tribunal-II, Fast Track Court, Hamirpur (H.P.) (for short "the Tribunal") in MAC Petition No. 6 of 2008, titled as Parveen Kumar versus Baldev Singh and others, whereby compensation to the tune of 4,10,185/- with interest @ 9% per annum from the date of the petition came to be awarded in favour of the claimant-injured and against the insurer (for short “the impugned award”).

2. The claimant-injured, the owner-insured and the driver of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.

3. Appellant-insurer has questioned the impugned award on the grounds taken in the memo of the appeal.

4. In order to determine this appeal, it is necessary to give a flashback of the case, the womb of which has given birth to the instant appeal.

5. Claimant-injured Parveen Kumar who was 18 years' of age at the time of the accident, became the victim of the motor vehicular accident, which was caused by driver, namely, Kishan Chand, while driving Tractor, bearing registration No. HP-67-1054, rashly and negligently, on 17th March, 2006, at about 12.30 P.M. at place Kunana, District Hamipur, in which the claimant-injured sustained multiple injuries, was shifted to Regional Hosptal, Hamirpur, wherefrom he was referred to Government Hospital, Dharamshala and remained admitted there for three months, has become permanently disabled due to the said injuries and has claimed compensation to the tune of five lacs, as per the breakups given in the claim petition.

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

7. Following issues came to be framed by the Tribunal on 16th April, 2009:

“1. Whether the respondent No. 2 Kishan Chand had driven tractor bearing No. HP-67-1054 on the public high way rashly and negligently, as a result of which it hit the scooter and petitioner Parveen Kumar suffered permanent disablement, as alleged? OPP

2. Whether the petitioner is entitled to the compensation amount of permanent disability, if so, to what amount and from whom? OPP

3. Whether the petition is not maintainable, as alleged? OPR3

4. Whether the petition is bad for non-joinder of necessary parties, as alleged? OPR3

5. Whether the petition is not maintainable as neither the petitioner nor the owner, i.e. Respondent No. 1 have supplied the particulars of vehicle? OPR3

6. Relief.”

8. The claimant-injured has examined Dr. Ramesh Chauhan as PW1, Shri Ashwani Kumar as PW3, Dr. Yogesh Diwan as PW4 and himself appeared in the witness box as PW2.

The insurer has examined Shri Rattan Lal, Administrative Officer, United India Insurance Company as RW1 and Shri Mahinder Singh, Senior Assistant, RTO Office, Hamipur as RW3. The owner-insured himself has appeared in the witness box as RW2.

Issue No. 1:

9. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimant-injured has proved that the driver of the offending vehicle had driven the same rashly and negligently at the relevant point of time and caused the accident, in which the claimant-injured sustained injuries. Even otherwise, the findings returned by the Tribunal on issue No. 1 are not in dispute. Accordingly, the findings returned by the Tribunal on issue No. 1 are upheld.

10. Before dealing with issue No. 2, I deem it proper to determine issues No. 3 to 6.

Issue No. 3:

11. It was for the appellant-insurer to plead and prove that the claim petition was not maintainable, has not led any evidence to that effect, thus, has failed to discharge the onus. Even otherwise, it is not understandable as to how the claim petition was not maintainable. The Motor Vehicles Act, 1988, has gone through a sea change and even the report of the police can be treated as a claim petition. It is admitted that the claimant-injured became the vi