AO/434/2006 of THE NEW INDIA ASSURANCE CO. LTD. Vs SMT. SEEMA RANI and ORS on 30 December 2008

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL.

A.O. No. 434 /2006

New India Assurance Company Ltd. …. Appellant.

Versus

Smt. Seema Rani and others

.. Respondents.

Sri T.A. Khan, learned counsel for the appellant.

Sri Lok Pal Singh, learned counsel for claimants/respondents.

Dated: 30-12-2008

’UHonble B.C. Kandpal, J.

This appeal, under Section 173 of the Motor Vehicle Act, has been filed against the judgment and award dated 17-5-2006, passed by Motor Accident Claim Tribunal/Addl. Sessions Judge/Ist F.T.C., Roorkee, District Haridwar, in MACT Case No. 97/2004, Smt. Seema Ran and others Vs. Amrik Singh and others.

2- Brief facts of the case are that deceased Anil on 23-6-2004 at about 4 P.M. was going to Dehradun from Iqbalpur riding in Scooter No. PB-08-7770. The truck bearing registration No. HR 58/7671 coming from Roorkee side dashed the Scooter in a rash and negligent manner due to which Anil Kumar fell down from the scooter and died at the spot. The F.I.R. of the accident was lodged at P.S. Bhagwanpur on the date of accident itself by the father of the deceased. Therefore the claimants filed the petition for compensation against the opposite parties.

3- The opposite party Nos. 1 and 2, owner and driver of offending Truck filed joint written statement and denied the rash and negligence of the driver of the truck. However, they have pleaded that the driver of the truck was having valid driving license and the truck was insured with New India Assurance Company at the time of accident, therefore, the liability to pay the compensation is upon the shoulder of the insurer.

4- The opposite party no.3, New India Assurance Company also filed its written statement and denied the averments made in the petition. According to it as per the information of the truck driver the accident has occurred due to own negligence of the Scooterist therefore the petition was bad for non-joinder of owner and insurer of the Scooter as party to the petition. The insurance company also took the plea that the driver of the truck was not having valid and effective driving license at the time of the accident and there was breach of condition of policy, hence, the insurance company cannot be held liable to pay any compensation.

5- The tribunal, on the pleadings of parties, framed relevant issues in the claim petition. Thereafter claimants adduced oral as well as documentary evidence. The opposite parties did not adduce any witness in support of their case.

6- The learned Tribunal after having heard learned counsel for the parties and considering the evidence on record, decreed the claim petition for a sum of Rs. 8,26,000/- along with interest @ 6% per annum from the date of filing the petition till the date of actual payment. The tribunal directed the New India Assurance Company to pay the amount of compensation to the claimants and the the insurance company shall be at liberty to recover the same from the owner of the offending truck.

8- Heard learned counsel for the appellant as well as the counsel for the claimants/respondents and perused the record.

9- Learned counsel for the appellant has submitted before me that once the learned Tribunal has recorded a finding that the driver of the offending vehicle was not possessing valid and effective driving license at the time of accident, then the tribunal should have exonerate the insurance company from the liability to pay the compensation first and then to recover the same from the owner of the offending vehicle.

10- I do not find any substance in the submission advanced by learned counsel for the insurance company. From perusal of record it reveals that the owner and the driver of the offending truck filed their joint written statement before the tribunal but they did not adduce any evidence in support of their version mention in the written statement. The claimants have filed the copy of insurance policy, fitness certificate, registration, road permit pertaining to offending truck. The claimants also filed copy of driving license of the deceased and perusal of the said license it appears that the deceased was possessing valid driving license at the time of accident. A photo copy of another driving license has been filed on record which is paper No. 36-Kha/3 but it is not decipherable that in whose name it is issued and whether it was valid or not at the time of accident. The photo affixed on the said document is also not identifiable as there is no endorsement pertaining to the person in whose favour the license has been issued. The learned Tribunal has recorded a finding that although the owner and the driver of the offending truck have filed their written statement but they did not adduce any evidence to prove that the driver was having valid and effective driving license and accordingly held that the driver of the offending truck was not having valid and effective driving license. It is pertinent to mention here that the insurance company has taken specific plea in its written statement that the driver of the offending truck was not possessing valid and effective driving license, therefore, the burden was upon the owner of the offending truck to prove this factum that the driver was having valid driving license but he has failed to discharge this burden. Therefore the finding of the tribunal holding that the driver was not possessing valid driving license, needs no intereference.

11- So far as the rash and negligence on the part of the truck driver is concerned, P.w.3, Karanjeet Singh has been examined to prove of the accident. He is an eyewitness of the accident. He has deposed that the accident has occurred at Puhana Chauraha at about 4 P.M. Anil was going to Dehradun from Iqbalpur and the truck dashed him on wrong side in a rash and negligent manner due to which he succumbed to the injuries at the spot. This witness has specifically stated that Truck number was HR 58-7671 and he knows the driver. He has further deposed that the front left wheel of the truck was climbed over the deceased. Against the eyewitness account given from the side of the claimants with regard to the rash and negligence of truck driver, no evidence in rebuttal has been adduced by the opposite parties and there is no reason to disbelieve the on oath testimony of P.W.3. The learned Tribunal has rightly recorded the finding that the accident was caused by the sole negligence of the driver of the offending truck in question.

Conclusion

negligence of the driver of the offending truck in question.

11- The claimants have also filed the photo copy of insurance cover note paper No. 11-C pertaining to truck No. HR 58/7671, which shows that the truck was insured with New India Assurance Company and the policy was valid at the time of accident. In the aforesaid facts and circumstances of the case, the tribunal was well within its jurisdiction to direct the insurance company to pay the amount of compensation to the claimants and the insurance company shall be at liberty to recover the same from the owner of the offending truck. I do not find any illegality and infirmity in the impugned judgment and award passed by the tribunal and the same is liable to be maintained.

12- For the reasons recorded above, the appeal lacks merit and is liable to be dismissed.

13- Accordingly, the appeal is dismissed. The impugned judgment and award dated 17.5.2006 is hereby confirmed.

14- Let the statutory amount of compensation, deposited by the appellant with this court, be remitted to the tribunal concerned.

ISB

(B.C. Kandpal, J.)