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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Virender Singh, J.
HDFC Ergo General Insurance Company Limited - Appellant
Vs.
Smt. Kalpna, W/o Late Sh. Sohan Lal - Respondent
First Appeal From Order No. 295 of 2021
Decided On : 30-09-2022
Motor Vehicles Act, 1988 – Section 166, 173 - Appeal – Claim compensation - Rash and negligent Driving - Claim petition filed by respondents No. 1 to 3 and awarded a sum along with interest @ 7.5% per annum, from date of filing of claim petition, till realization of amount - Award has also been assailed on ground that it was incumbent upon the claimants to prove negligence of driver, which, according to the appellant, claimants have miserably been failed to do so. (Para 19).
Findings of Court: A futile attempt has also been made by learned counsel appearing for the Insurance Company, in this case, when he has relied upon the final report in Case FIR. By virtue of this document, police has requested Court to drop the proceedings, in this case, but, there is nothing on the record to show whether this report has been accepted by the Court or not. There is nothing on the file to show that police had ever associated the pillion rider of motor cycle in investigation of case.
Result: Appeal dismissed.
JUDGMENT :
Appellant-Insurance Company has filed the present appeal, under Section 173 of the Motor Vehicles Act (hereinafter referred to as the ‘MV Act’) against award, dated 9th March, 2018, passed by the learned Motor Accident Claims Tribunal-IV, Shimla, Camp at Rohru, H.P. (hereinafter referred to as ‘learned MACT’).
2. By virtue of the award, which has been assailed before this Court, the learned MACT has allowed the claim petition filed by respondents No. 1 to 3 and awarded a sum of Rs. 10,37,680/-, alongwith interest @ 7.5% per annum, from the date of filing of the claim petition, till realization of the amount.
3. For the sake of convenience, the parties to the lis are hereinafter referred to, as referred to by the learned MACT.
4. The Insurance Company (respondent No. 4) has preferred the appeal before this Court, as the ultimate liability to pay the amount of compensation, alongwith interest, has been fastened upon it.
5. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:
The claimants, being widow and minor sons of Shri Sohan Lal, have filed the claim petition before the learned MACT, seeking compensation, on account of death of Shri Sohan Lal, in a road side accident, on 26th November, 2015, involving vehicle No. HP-72-1307, being driven by respondent No. 1-Mohan Singh, owned by respondent No. 2-C&C Company and insured with respondent No. 4.
6. The claim petition has been filed on the ground that on 26th November, 2015, deceased-Sohan Lal was driving motor cycle, bearing registration No. HP-10A-7225 and when he had reached a place, near Mehandali, Tehsil Rohru, District Shimla, H.P., at about 2.30 p.m., the offending vehicle, i.e. Tipper, bearing registration No. HP-72-1307, came there, being driven by respondent No. 1, in a rash and negligent manner, and crushed the motor cyclist (deceased-Sohan Lal). The matter was reported to the police of Police Station Rohru, whereupon FIR No. 119, dated 26th November, 2015, was registered.
7. The claimants have also pleaded about their bright past and bleak future.
8. On the basis of the factual position, qua the monthly earning of deceased, as Rs. 30,000/- per month, the claimants have sought the compensation to the tune of Rs. 30 Lacs, alongwith statutory interest, from the date of filing of the claim petition, till the realization of the actual amount from the respondents.
9. When put on notice, the claim petition has been contested by the respondents.
10. Respondents No. 1 to 3 have filed their reply, by taking the preliminary objections that the petition is not maintainable, whereas the factual position, which has been pleaded in the claim petition, has evasively been denied. However, in reply to para 24 of the claim petition, it has been pleaded that the deceased was driving the vehicle in question in a rash and negligent manner and could not control the vehicle. Consequently, the motor cycle hit the tipper. According to respondents No. 1 to 3, there was no negligence on the part of respondent No. 1.
11. The Insurance Company-respondent No. 4 has taken the preliminary objections regarding the fact that the vehicle in question was being plied in violation of the terms and conditions of the Insurance Policy and that the deceased was also driving the vehicle in violation of the terms and conditions of the Insurance Policy.
12. On merit, the factual position has mainly been denied for want of knowledge.
13. Thus, the respondents have prayed to dismiss the claim petition.
14. From the pleadings of the parties, the learned MACT has framed the following issues, vide order, dated 4th July, 2017:
2. Whether the petitioner is entitled for grant of compensation, if so, then what should b
Strict rules of Evidence Act are not applicable in the proceedings under MV Act.
Claimants in motor vehicle accident cases must meet the burden of proof on a preponderance of probabilities, and strict evidence rules do not apply, allowing the invocation of the res ipsa loquitur p....
The insurer is liable for compensation when the identified tort-feasor is negligent, and claimants cannot choose to pursue unidentified tort-feasors.
Sections 166 and 168 of Motor Vehicles Act, empowers to Tribunals and Courts with jurisdiction to award just compensation.
The main legal point established is the requirement to prove rashness and negligence in claims under Section 165 of the Motor Vehicles Act, and the applicability of res ipsa loquitur in determining n....
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