Allahabad High Court
The Oriental Insurance Company ... vs Somendra Pratap Singh & Another on 26 July, 2012
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
COURT NO. 33
F.A.F.O. No. 2700 of 2006
The Oriental Insurance Co. Ltd.
Versus
Somendra Pratap Singh and another
Counsel for the appellant : Saral Srivastava
CORAM:
HON. RAKESH TIWARI, J
HON. ANIL KUMAR SHARMA, J
The appellant has challenged the award dated 20.7.2006 passed by MACT/Special Judge (S.C/S.T. Act), Mainpuri whereby the claim petition of the respondent u/s 163-A Motor Vehicles Act had been partly allowed and a sum of Rs. 2,70,000/- have been awarded to him.
It appears that in the night of 5/6.3.2003 the claimant-respondent as driver of Maruti Van UP 80J/2909 was returning from barat along with others and at about 1 a.m. when they reached near culvert of Karri on Kishni-Etawah road, some 7-8 miscreants had blocked the road by keeping logs of trees and when the claimant stopped the vehicle, the miscreants tried to open the window and when claimant resisted they fired two shots on the persons sitting in the car injuring the claimant and Manoj. Udai Pratap Singh and Manoj also fired shots from their licensed rifles in self defence, then the culprits made their escape good in an Armada vehicle. The report of the incident was lodged by Udai Pratap in P.S. Kishni. In the incident, the claimant suffered fire arm injury near his right eye. The bullet had pierced in his body. He was immediately admitted in District Hospital, Mainpuri but was referred to S.N. Medical College, Agra and then he was admitted in Ram Raghu Hospital, Agra where he underwent surgery and bullet was taken out from his left temporal. On 13.3.2003 he was referred to RPI Centre of AIIMS, New Delhi. The claimant has claimed that he lost sight in his eye and filed claim petition for an award of Rs. 6.70 lacs against the owner and insurer of Maruti Van aforesaid. The Insurance Co. has contested the claim petition and denied the allegations of the claimant contending that he is owner of the vehicle and in collusion the petition has been filed. They further contended that the claimant had no valid and effective driving license on the date of accident. The claimant had examined himself as PW 1 and also produced Sanjiv Kumar PW 2 and filed several papers. The appellant had examined Badan Singh DW 1 and Kapil Dev Tripathi DW 2 (both officials of ARTO, Etah) to prove that no driving license was issued to the claimant and he has filed fake driving license. The learned Tribunal after hearing parties' counsel has concluded that the claimant suffered grievous injuries while using the motor vehicle and the incident in question amounts to 'motor accident' and partly allowed the claim petition as stated above. However, he recorded finding that the appellant could not prove that the claimant had no valid and effective license to drive the vehicle. Aggrieved the insurer has come up in appeal.
We have heard the learned counsel for the appellant and perused the record. The counsel for the respondents did not appear in the Court.
Learned counsel for the appellant has argued that the incident in which allegedly the claimant was injured, does not come within the purview of motor accident; that the claimant has no driving license and Tribunal has illegally disbelieved the evidence adduced on behalf of the appellant; that the vehicle was being used as taxi, so there was breach of insurance contract and appellant cannot be fastened with the liability to indemnify the award which is highly excessive and arbitrary.
The instant claim petition has been filed by the claimant u/s 163-A Motor Vehicles Act, in which he has simply to prove that he has suffered injuries while using the motor vehicle. This fact could not be controverted by the appellant that the incident took place while the road was blocked by the miscreants and in order to rob the people travelling in vehicles, the miscreants fired shots and claimant sustained injuries. The learned Tribunal in the facts and circumstances of the case has rightly relied upon the case reported in 2000(2) T.A.C. 213 (SC)
As regards breach of terms of insurance contract, the appellant has adduced evidence only pertaining to the driving license of the claimant. We have perused the findings of the Tribunal on this point and found that both the officials of ARTO, Etah examined on behalf of the appellant could not prove with certainty that no driving license was issued to the appellant. The record of ARTO was produced by Badan Singh PW 1, but the pages pertaining to the license of the claimant were missing, so he was not in a position to state whether any driving license was issued to the appellant or not? Kapil Dev Tipathi DW 2 did not bring any documents from the ARTO, Etah, so his evidence is of no help to the appellant. It is now well settled that the burden to prove the breach of contract of insurance squarely lies on the insurance company. In the instant case they have failed to prove that the driving license relied upon by the claimant was not issued by ARTO, Etah. Now as regards use of Maruti Van as taxi, no material has been brought by the appellant by way of their own evidence or from the cross-examination of claimants' witnesses to prove this allegation.
On the basis of nature of injuries, treatment taken by the claimant as also from the receipts/bills produced in the case, the learned Tribunal has awarded a sum of Rs.1.0 lacs for medical treatment, Rs. 1.20 lacs for 40% disability in eye sight of the claimant and for transport charges, expanses incurred on entertaining visitors, attendant etc. the Tribunal has awarded a sum of Rs.80,000/- in lump sum to the claimant. Learned counsel for the appellant has vehemently argued that award of Rs.80,000/- for misc. expanses is arbitrary and ought not to have been allowed by the Tribunal. The evidence adduced by the claimant show that he had undergone surgery, bullet was taken out from his left temporal and he had suffered 40% disability in eye sight for which he had taken treatment in different hospitals situated at Mainpuri, Agra and New Delhi for sufficiently long time, therefore, this amount appears to be just and reasonable.
No other point was argued before us.
In view of the above discussion, we find that there is no merit in the appeal, which is accordingly dismissed.
Dated: July 26, 2012
CPP/-
