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2015 DAILYLAW 1314 (HP)

United India Insurance Company v. Palvi

2015-09-18

MANSOOR AHMAD MIR

body2015
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 4th April, 2008, passed by the Motor Accident Claims Tribunal-II, Kangra at Dharamshala (for short, “the Tribunal”) in M.A.C.P. No.70-K/2005, titled Miss Palvi vs. Arun Kumar & another, whereby a sum of Rs.1,50,000/- alongwith interest at the rate of 7½% per annum, came to be awarded as compensation in favour of the claimant and the insurer was saddled with the liability, (for short the “impugned award”). 2. The claimant and the owner/insured have not questioned the impugned award on any count. Thus, the same has attained finality so far it relates to them. 3. Only the insurer has questioned the impugned award on the grounds taken in the memo of appeal. 4. The learned counsel for the appellant argued that the impugned award suffers from illegality on two counts - (i) the claimant has not been able to prove that the driver of the offending vehicle had driven the vehicle rashly and negligently; and (ii) the amount awarded by the Tribunal is excessive. 5. The Tribunal, after examining the pleadings, framed the following issues: “1. Whether the respondent No.1 was driving his motorcycle in a rash and negligent manner on 9.9.02 on the public road and it struck against the petitioner causing grievous injuries to her? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation, the petitioner is entitled and from whom? OPP 3. Whether the respondent No.1 was not holding valid and effective driving licence to drive the vehicle at the time of accident as alleged? If so, its effect? OPR-2 4. Whether the petition is collusive between the petitioner and respondent No.1 as alleged? If so its effect OPR-2 5. Whether the petition is not maintainable in the present form as alleged? OPR-2. 6. Relief.” 6. The claimant, in order to prove her case, has examined as many as four witnesses, while the respondents have not led any evidence. Thus, the evidence led by the claimant remained un-rebutted. 7. The claimant has specifically pleaded in the claim petition and also led evidence to the effect that the driver of the offending motorcycle was driving the same in a rash and negligent manner on 9.9.2002, at about 9.30 A.M., at a place known as Balana, Police Station, Chowari, District Chamba, hit the claimant, who sustained injuries and suffered disability. 7. The claimant has specifically pleaded in the claim petition and also led evidence to the effect that the driver of the offending motorcycle was driving the same in a rash and negligent manner on 9.9.2002, at about 9.30 A.M., at a place known as Balana, Police Station, Chowari, District Chamba, hit the claimant, who sustained injuries and suffered disability. FIR was also lodged against the driver of the offending motorcycle. Thus, the findings on issues No.1 & 2 were correctly recorded by the Tribunal and accordingly, the same are upheld. 8. Before I deal with issue No. 2, I deem it proper to determine issues No.3 and 4. 9. It was for the insurer to plead and prove that the owner had committed willful breach. However, as has been observed above, the insurer has not led any evidence to that effect. The insurer has failed to prove that the driver of the offending vehicle was not having a valid and effective driving licence at the relevant point of time or there was collusion between the claimant and the owner. Thus, issues No.3 and 4 were rightly decided by the Tribunal against the insurer and in favour of the owner. Even, the findings recorded on these issues have not been questioned by the learned counsel for the appellant during the course of hearing. Accordingly, findings returned by the Tribunal on the said issues are upheld. 10. Coming to issue No.2, the claimant was a minor girl, who sustained fracture and disability, which has shattered her physical frame and which would affect her life throughout and also marital prospects. The amount of compensation awarded by the Tribunal, by no stretch of imagination, can be said to be on the higher side. On the contrary, the compensation awarded is too meager. Unfortunately, the claimant has not questioned the adequacy of compensation, therefore, the impugned award is reluctantly upheld. 11. Having said so, no interference is required in the impugned award. Hence, the appeal is dismissed. The Registry is directed to release the award amount in favour of the claimant, strictly as per the terms and conditions contained in the impugned award, after proper identification. 12. Send down the record after placing copy of the judgment on the Tribunal’s file.