FAO/242/2017 on 31 December 2018

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 242 of 2017. Reserved on :27

th December, 2018. Decided on :

31 st December, 2018. Smt. Sabita Parashar

…..Appellant.

Versus The New India Assurance Company Ltd. and others ....Respondents.

Coram:

The Hon’ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting?1 For the Appellant: Mr. Neel Kamal Sood, Advocate. For Respondent No. 1: Mr. Raman Sethi, Advocate. For Respondent No.2: Mr. Amit Jamwal, Advocate vice Mr. Kishore Pundeer, Advocate. For Respondent No.3 to 10: Mr. Dheeraj K. Vashisht, Advocate.

Sureshwar Thakur, Judge. The owner of the offending vehicle, has, instituted the instant appeal before this Court, 1 Whether reporters of the local papers may be allowed to see the judgment?

wherethrough, it, casts a challenge, upon, the award pronounced by the learned Motor Accident Claims Tribunal-III, Una, H.P., upon, MAC No. 9/2011, whereunder, compensation amount comprised, in, a sum of Rs.14,48,200/- along with interest accrued thereon, at the rate of 9% per annum, commencing from, the date of petition till realization thereof, stood, assessed, vis-a-vis, the claimants, and, the apposite indemnificatory liability thereof, was, fastened upon the owner of the offending vehicle/appellant herein.

2. The learned counsel appearing for the owner/appellant herein, has, contended with much vigour before this Court, that, the rendition, of, affirmative findings, upon, issue appertaining to the relevant mishap hence being a sequel of rash and negligent manner of driving, of the offending vehicle by one Raj Kumar (respondent No.2 herein), hence, warranting interference, …2…

(I) dehors, the ocular witnesses to the occurrence, rendering an apt credible narration, whereunder, they ascribed negligence to respondent No.2 herein, in his driving the offending vehicle, (ii) given the insurer establishing, the, pleaded factum qua the offending vehicle, at the relevant time, being encumbered with a latent defect, and, for rectification whereof, it being plied to the apposite workshop, (iii) hence, fortifyingly, he contends that the effect, if any, of the negligence of respondent No.2 herein in driving the offending vehicle, rather being subsumed hence by the afore pleaded fact. However, the afore submission addressed before this Court, by the learned counsel, appearing for the appellant/owner of the offending vehicle, is, enfeebled, given its remaining in realm, of, pleadings, (c) and, rather the report of the mechanical expert, borne in Mark-A, making voicings, unsupportive, vis-a-vis, the espousal of …3…

the learned counsel appearing, for, the owner/appellant herein. In sequel, the findings returned, upon, the issue appertaining to the relevant mishap, being a sequel of rash, and, negligent manner of driving, of the offending vehicle by respondent No.2, herein, obviously do not merit any interference.

3. Furthermore, the learned counsel appearing for the insurer, has, proceeded to contend with much vigour before this Court, (i) that the findings returned by the learned tribunal, upon, the issue appertaining to the offending vehicle at the stage contemporaneous, to the relevant mishap, hence, not holding the requisite route permit, for its being plied, on the route concerned, also being beyond the domain of the recitals borne, in, Ex.RW1/E. However, the afore submission is ill-founded,

(ii) as the apposite column, appertaining to the date of issuance of the apposite route permit, making a clear …4…

display, qua its issuance occurring, on, 9.11.2011, and, its surviving upto 8.11.2016, whereas, with the relevant mishap, rather occurring hence much prior to its issuance, inasmuch, on 21.3.2011, and, with the owner of the offending vehicle, not placing, on record any route permit, with, a display therein, that, in contemporaneity, vis-a-vis, the ill-fated occurrence, the offending vehicle also possessing a valid route permit, (iii) thereupon, the apt sequel thereof, is, qua with lack of apt possession, or lack of issuance, in, contemporaneity to the ill-fated mishap, rather a valid route permit, vis-a-vis, the offending vehicle, hence, want thereof constituting a fundamental breach of terms, and, conditions of the insurance policy, (iv) whereupon, the insurer held a valid exculpatory ground hence for avoiding the fastening, of, the indemnificatory liability, upon, it, rather the fastening of the apt indemnificatory liability, vis-a-vis, the …5…

compensation amount, upon, the appellant herein/owner of the offending vehicle, is both fit and appropriate, (v) besides the adoption by the learned tribunal, of, the principle of pay, and, recover, is also both proper and tenable.

4. For the foregoing reasons, there is no merit in the instant appeal, and, it is dismissed accordingly. In sequel, the impugned award is maintained and affirmed. All pending applications also stand disposed of. No costs. (Sureshwar Thakur) 31st December, 2018.

Judge. (jai) …6…