FAO/242/2017 of SABITA PARASHAR Vs NEW INDIA ASSURANCE COMPANY on 31 December 2018

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLAFAO No. 242 of 2017.

Reserved on :27th December, 2018.

Decided on : 31st 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.

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 awardpronounced by the learned Motor Accident ClaimsTribunal-III, Una, H.P., upon, MAC No. 9/2011,whereunder, compensation amount comprised, in, a sumof Rs.14,48,200/- along with interest accrued thereon, atthe rate of 9% per annum, commencing from, the date ofpetition till realization thereof, stood, assessed, vis-a-vis,the claimants, and, the apposite indemnificatory liabilitythereof, was, fastened upon the owner of the offendingvehicle/appellant herein.

2. The learned counsel appearing for theowner/appellant herein, has, contended with much vigourbefore this Court, that, the rendition, of, affirmativefindings, upon, issue appertaining to the relevant mishaphence being a sequel of rash and negligent manner ofdriving, of the offending vehicle by one Raj Kumar(respondent No.2 herein), hence, warranting interference,

(I) dehors, the ocular witnesses to the occurrence,rendering an apt credible narration, whereunder, theyascribed negligence to respondent No.2 herein, in hisdriving the offending vehicle, (ii) given the insurerestablishing, the, pleaded factum qua the offendingvehicle, at the relevant time, being encumbered with alatent defect, and, for rectification whereof, it being pliedto the apposite workshop, (iii) hence, fortifyingly, hecontends that the effect, if any, of the negligence ofrespondent No.2 herein in driving the offending vehicle,rather being subsumed hence by the afore pleaded fact.However, the afore submission addressed before thisCourt, by the learned counsel, appearing for theappellant/owner of the offending vehicle, is, enfeebled,given its remaining in realm, of, pleadings, (c) and, ratherthe report of the mechanical expert, borne in Mark-A,making voicings, unsupportive, vis-a-vis, the espousal of the learned counsel appearing, for, the owner/appellantherein. In sequel, the findings returned, upon, the issueappertaining to the relevant mishap, being a sequel ofrash, and, negligent manner of driving, of the offendingvehicle by respondent No.2, herein, obviously do notmerit any interference.

3. Furthermore, the learned counsel appearing for the insurer, has, proceeded to contend with much vigourbefore this Court, (i) that the findings returned by thelearned tribunal, upon, the issue appertaining to theoffending vehicle at the stage contemporaneous, to therelevant mishap, hence, not holding the requisite routepermit, for its being plied, on the route concerned, alsobeing 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 ofissuance of the apposite route permit, making a clear

display, qua its issuance occurring, on, 9.11.2011, and,its surviving upto 8.11.2016, whereas, with the relevantmishap, rather occurring hence much prior to itsissuance, inasmuch, on 21.3.2011, and, with the owner ofthe offending vehicle, not placing, on record any routepermit, with, a display therein, that, in contemporaneity,vis-a-vis, the ill-fated occurrence, the offending vehiclealso possessing a valid route permit, (iii) thereupon, theapt sequel thereof, is, qua with lack of apt possession, orlack of issuance, in, contemporaneity to the ill-fatedmishap, rather a valid route permit, vis-a-vis, theoffending vehicle, hence, want thereof constituting afundamental breach of terms, and, conditions of theinsurance policy, (iv) whereupon, the insurer held a validexculpatory ground hence for avoiding the fastening, of,the indemnificatory liability, upon, it, rather the fasteningof the apt indemnificatory liability, vis-a-vis, the 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, theprinciple of pay, and, recover, is also both proper andtenable.

4. For the foregoing reasons, there is no merit inthe instant appeal, and, it is dismissed accordingly. Insequel, the impugned award is maintained and affirmed.All pending applications also stand disposed of. No costs.

(Sureshwar Thakur)

31[st] December, 2018. (jai)

Judge.