The Himachal Pradesh High Court dismissed an appeal, filed by the appellant-National Insurance Company against the award dated 15.05.2015, passed by the learned Motor Accident Claims Tribunal, whereby the claim petition, filed by respondents No.1 to 6-claimants under Section 166 of the Motor Vehicles Act, was allowed. The Court observed that this Court while exercising power under Order 41 Rule 33 CPC can proceed to award compensation even in those cases, where no cross-appeals/cross-objections have been filed to do complete justice between the parties.
Brief Facts:
The claimants, being the dependents of deceased Kalu, filed a claim petition under Section 166 of the MV Act before the learned Tribunal below, seeking compensation from the respondents, i.e. owner and the insurer of the accidental vehicle. As per the claimants, the deceased hired a pickup van, which belonged to respondent No.7-Satpal, for the transportation of his vegetables and fruits. When the aforesaid vehicle arrived at Shalaghat, the driver lost control of the vehicle due to high speed and it rolled down the hill, as a result of the accident, Kalu sustained multiple injuries and ultimately, he succumbed to the injuries.
As per the claimants, at the time of the accident, the deceased was 40 years of age and he was earning Rs.50,000/- per month by selling fruits and vegetables and he also used to earn Rs.7,000/- per month by working as a mason, but due to his untimely death, they lost their sole breadwinner. The learned Tribunal allowed the claim petition. Feeling aggrieved and dissatisfied, the appellant-Insurance Company has preferred the instant appeal.
Contentions of the Appellant:
The Learned Counsel for the Appellant submitted that at the time of the accident, the deceased was traveling in the empty vehicle as a gratuitous passenger as there were no goods found in the vehicle, as such, the insurance company is not liable to pay any amount of compensation to the claimants as the vehicle was being plied in violation of the terms and conditions of the insurance policy.
Contentions of the Respondents:
The Learned Counsel for the Respondents submitted that since the learned Tribunal below has failed to award a certain amount under the conventional heads i.e. consortium and loss of estate, this Court while exercising power under Order 41 Rule 33 CPC may proceed to award the same in favor of the claimants.
The Court noted that from the evidence led by the claimants, it has been proved on record that the deceased had hired the vehicle in question for transporting his vegetables and fruits at Sabzi Mandi, Shimla, as such, it has become clear that the deceased was traveling along with his goods in the vehicle in question at the time of the accident.
The Court observed that the onus was upon the appellant-insurance company to prove that the deceased was traveling as an authorized/ gratuitous passenger in the vehicle in question at the time of the accident. However, no evidence has been provided by the insurance company to prove the same.
The Court said that this Court while exercising power under Order 41 Rule 33 CPC can proceed to award compensation even in those cases, where no cross-appeals/cross-objections have been filed to do complete justice between the parties.
The decision of the Court:
The Himachal Pradesh High Court, dismissing the appeal, held that the impugned award dated 15.05.2015 passed by the learned Tribunal below is modified.
Case Title: National Insurance Company Ltd v Mehboob & Ors.
Coram: Hon’ble Justice Sushil Kukreja
Case no.: FAO No. 378 of 2015
Advocate for the Appellant: Mr. Ashwani K. Sharma
Advocate for the Respondents: Mr. Anirudh Sharma
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