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2016 Supreme(HP) 2022
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Mansoor Ahmad Mir, J.
Hari Chand and another - Appellants
Versus
Chaya Kumari and others - Respondents
FAO No.415 of 2012 a/w CO No.172 of 2013
Decided On : 16-12-2016
For the Appellants : Mr. G.R. Palsara.
For the Respondents: Mr. Adarsh Sharma, Mr. Bhender Kumar Chaudhary, Mr. P.S. Chandel.
The insurer must prove the breach of policy condition and the fundamental contribution to the cause of the accident to avoid liability.
Headnote:
Motor Accident - Compensation - National Insurance Co. Ltd. versus Swaran Singh & others, AIR 2004 SC 1531, Pepsu Road Transport Corporation versus National Insurance Company, (2013) 10 SCC 217 - The court upheld the findings that the driver was driving rashly and negligently, and that the insurer failed to prove that the vehicle was being driven in violation of the insurance policy. The court set aside the findings on the driver's license and the breach of policy condition, and awarded compensation with interest at the rate of 7.5% per annum.
Fact of the Case:
The deceased sustained injuries in a motor vehicle accident and later succumbed to them. The claimants sought compensation for the loss.
Finding of the Court:
The court found that the driver was driving rashly and negligently, and the insurer failed to prove the violation of the insurance policy. The court also adjusted the quantum of compensation and the rate of interest awarded by the tribunal.
Issues: The issues included the cause of the accident, the amount of compensation, the liability of the insurer, and the validity of the driver's license.
Ratio Decidendi: The court upheld the findings on the cause of the accident and the liability of the insurer, set aside the findings on the driver's license and the breach of policy condition, and adjusted the quantum of compensation and the rate of interest.
Final Decision: The appeal and cross objections were allowed, the impugned award was modified, and the compensation with interest at the rate of 7.5% per annum was awarded.
Mansoor Ahmad Mir, J.
This appeal is directed against the award, dated 25th July, 2012, passed by the Motor Accident Claims Tribunal, Kullu, District Kullu, H.P., (for short, “the Tribunal”) in Claim Petition No.22 of 2011, titled Chaya Kumari and others vs. Hari Chand and others, whereby the claim petition was allowed and compensation to the tune of Rs.3,76,400/-, with interest at the rate of 9% per annum, came to be awarded in favour of the claimants No.1 and 3, and the owner and the driver came to be saddled with the liability, (for short the “impugned award”).
2. Feeling aggrieved, the owner and the driver have challenged the impugned award by the medium of instant appeal, the claimants have filed Cross Objections No. 172 of 2013 for enhancement of compensation, while the insurer has not laid challenge to the impugned award on any ground.
3. Facts of the case, in brief, are that on 14th May, 2011, at about 8.00 p.m., at Jhiri, District Mandi, H.P., original respondent No.2, namely, Karam Chand had driven the scooter bearing No. HP-34-7757 rashly and negligent, hit the deceased Pawan Kumar, as a result of which he sustained multiple injuries, was shifted to Zonal Hospital, Kullu, referred to PGI Chandigarh, where he succumbed to the injures, on 21st May, 2011. FIR bearing No.41/2011, dated 15.5.2011, was lodged at Police Station, Aut, District Mandi, H.P. It was pleaded that the deceased was running a tea shop and was earning Rs.8,000/- per month. Hence, the claim petition for compensation to the tune of Rs.10.00 lacs, as per the break-ups given therein.
4. The claim petition was resisted by the respondents by filing replies. On the pleadings of the parties, the Tribunal framed the following issues:
“1. Whether Pawan Kumar died on 14.5.2011 in a motor vehicle accident on account of rash and negligent driving of respondent No.2? OPP
2. If issue No.1 is proved in affirmative, to what amount of compensation and at what rate of interest, the petitioners are entitled? OPP
3. Whether the respondent-3 is liable to make payment of compensation as indemnifier? OPP
4. Whether the vehicle in question was driven in breach of terms and conditions of the insurance policy? OPR-3
5. Whether respondent No.2 was not having valid and effective driving licence to drive the vehicle? OPR-3
6. Relief.”
5. In order to prove their claim, the claimants examined PW-1 Dr.Akshit Chandel and PW-3 HC Khem Chand, while one of the claimants, namely, Sumit Kumar stepped into the witness box as PW-2. On the other hand, the driver and the owner have examined Devi Ram as RW-1while the insurer has not led any evidence.
6. The Tribunal, after scanning the evidence, held that the claimants have proved that Karam Chand had driven the scooter rashly and negligently on the fateful day and had caused the accident, in which the deceased sustained injuries and succumbed to the same lateron. The said findings recorded by the Tribunal on issue No.1 are not in dispute. Accordingly, the findings returned by the Tribunal on issue No.1 are upheld.
7. Before I deal with issues No.2 and 3, I deem it proper to take up issues No.4 and 5 at the first place.
Issue No.4
8. It is beaten law of the land that the insurer has to plead and prove that the owner of the offending vehicle has committed willful breach of the terms and conditions contained in the policy and mere plea here and there cannot be a ground for seeking exoneration.
9. The Apex Court in case titled as National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 SC 1531, has taken the similar view. It is apt to reproduce relevant portion of para 105 of the judgment hereinbelow:
“105. .....................
(i) .........................
(ii) ........................
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in subsection (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by t
