Himachal Pradesh High Court
(Owner Of Indica Car No. ... vs New India on 28 October, 2022
Bench: Jyotsna Rewal Dua
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 28th DAY OF OCTOBER, 2022
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
FIRST APPEAL FROM ORDER NO.116 OF 2014
Between:-
VISHAL KUMAR
S/O SH. RAMESH CHAND,
R/O VPO BALDAYAN,
DISTRICT SHIMLA, H.P.
(OWNER OF INDICA CAR NO. HP-01A-0332)
.....APPELLANT
(BY MR. NEEL KAMAL SHARMA,
ADVOCATE)
AND
1. BHUSHAN KUMAR SHARMA
ALIAS SUNDER SHARMA,
S/O LATE SH. KRISHAN,
R/O VILLAGE SURAPUR,
TEHSIL INDORE, DISTRICT KANGRA,
H.P. PRESENTLY RESIDING AT
MANALI, NEAR NEHARU KUND,
TEHSIL MANALI, DISTRICT KULLU, H.P.
2. NATIONAL INSURANCE COMPANY LTD.
SHIMLA THROUGH ITS
BRANCH MANAGER SHIMLA,
H.P. HIMLAND HOTEL,
GROUND FLOOR, CIRCULAR ROAD,
SHIMLA.
3. SMT. SOMA DEVI WD/O
LATE SH. SURENDER NATH;
4. DINESH S/O LATE SH. SURENDER NATH;
5. RAMAN S/O LATE SH. SURENDER NATH;
6. RAJESH S/O LATE SH. SURENDER NATH
::: Downloaded on - 01/11/2022 20:32:23 :::CIS
2
(RESPONDENTS NO.3 TO 6,
ALL R/O VILLAGE BHORALIAN
KALAN, P.O. BEHDALA, TEHSIL
AND DISTRICT UNA, H.P.
(OWNER OF TRUCK NO. HP-20-7785)
.
7. SATPAL SINGH
S/O SH. RAM CHANDER,
R/O VPO BANGARH, TEHSIL
AND DISTRICT UNA, H.P.
(DRIVER OF TRUCK NO. HP-20-7785)
8. ORIENTAL INSURANCE
COMPANY LTD. RAILWAY ROAD,
NANGAL DISTRICT ROPAR,
PUNJAB, THROUGH ITS BRANCH
MANAGER, BRANCH OFFICE
RAILWAY ROAD, NANGAL, AT
PRESENT BRANCH OFFICE AT
COLLEGE GATE DHALPUR,
KULLU, TEHSIL AND
DISTRICT KULLU, H.P.
9. SHYAM LAL
S/O SH. PARAS RAM,
R/O VILLAGE KUTHEHRA,
P.O. MALANGAN, TEHSIL JHANDUTA,
DISTRICT BILASPUR, H.P.
(DRIVER OF INDICA CAR NO. HP-01A-0332).
.....RESPONDENTS
(MR. NAVEEN K. BHARDWAJ,
ADVOCATE, FOR R-1.
MS. DEVYANI SHARMA,
ADVOCATE, FOR R-2
MR. RAJIV RAI, ADVOCATE,
FOR R-3 TO R-7
MR. VIKRAM SINGH, ADVOCATE,
VICE MR. J.S. BAGGA,
ADVOCATE FOR R-8
MR. A.K. SHARMA,
ADVOCATE, FOR R-9)
::: Downloaded on - 01/11/2022 20:32:23 :::CIS
3
____________________________________________________________
This appeal coming on for hearing this day, the
Court delivered the following:
.
JUDGMENT
The appellant is owner of Indica car No.HP-01A-
0332. This car met with an accident on 21.02.2008 that also
involved a truck bearing No. HP-20-7785. The accident
resulted in causing injuries to one Bhushan Kumar Sharma.
He filed a claim petition under Section 166 of the Motor
Vehicles Act. The learned Motor Accident Claims Tribunal (in
short the Tribunal) vide its award dated 20.12.2013 allowed
compensation of Rs.3,85,472/- alongwith interest @ 7.5% per
annum from the date of filing of the petition till realization of
the amount in favour of the claimant. The liability to satisfy
the awarded amount was fastened upon the owner and driver
of the car. Feeling aggrieved, owner of the car has preferred
instant appeal.
2. Learned counsel for the appellant has advanced
submissions on the following main points: -
(i) The findings of the learned Tribunal that
accident in question occurred due to rash and
negligent driving of the car by appellant's
driver Shyam Lal (respondent No.9), is
contrary to the pleadings and evidence on
record. The accident was caused due to rash
and negligent driving of the truck by
respondent No.7.
(ii) Even if it is held that the accident was caused
.
because of negligent driving by respondent
No.9 then also the liability to pay the
awarded compensation amount should have
been fastened upon respondent No.2-
Insurance Company (the insurer of Indica
car).
3. I have heard learned counsel for the parties and
with their assistance
r have also seen the record. For
convenience, the above two main points, around which learned
counsel for the parties made their submissions, are being
discussed separately hereinafter.
4. Point No.1: Issue of negligence
The relevant facts may first be noticed.
4(i)(a) On 21.02.2008, the claimant was travelling in Tata
Indica car No.HP-01A-0332 and going from Mandi to Indore.
This vehicle was being driven by respondent No.9. The
appellant was the owner of this vehicle. Near 'Kawari Dhank',
District Mandi, this vehicle struck against a truck No. HP-20-
7785, being driven by Satpal Singh (respondent No.7). The
accident resulted in giving multiple injuries to claimant
Bhushan Kumar Sharma. He remained admitted in Zonal
Hospital Mandi, PGI Chandigarh and Fortis Hospital
Chandigarh. He also received treatment from Harihar Hospital
Mandi and Kullu Valley Hospital, District Kullu, H.P. On
.
12.04.2010, Bhushan Kumar instituted claim petition under
Section 166 of the Motor Vehicles Act, claiming
Rs.10,00,000/- as compensation alongwith interest. The
learned Tribunal vide its award dated 20.12.2013 held that the
accident in question was caused because of rash and negligent
driving by respondent No.9 i.e. driver of car, owned by the
appellant. The payable compensation to the claimant was
worked out at Rs.3,85,472/- alongwith interest @7.5% per
annum.
4(i)(b) Learned counsel for the appellant
contended that the findings returned by the learned Tribunal
regarding accident having been caused due to rash and
negligent driving of car by respondent No.9 was contrary to the
pleadings and evidence on record. It was argued that the
claimant had specifically averred in para-24 of the claim
petition about the accident having been caused due to rash
and negligent driving of the truck by respondent No.7. Once
the claimant had himself pleaded negligent driving of the truck
by respondent No.7 as cause of the accident learned Tribunal
could not have returned findings that the accident occurred
because of rash and negligent driving of car by respondent
No.9. It was also submitted that Satpal (respondent No.7)-the
.
truck driver did not step into the witness-box, hence adverse
inference had to be necessarily drawn against him about his
rash and negligent driving of the truck. Learned counsel for
the appellant relied upon certain judgments in support of his
contention.
4(i)(c) Observations
I am afraid the submissions advanced by learned
counsel for the appellant cannot be accepted in the facts of the
case. Firstly, there is no definitive or affirmative pleading of
the claimant about the accident having been caused due to
rash and negligent driving of the truck. The claimant in his
pleadings is unsure as to whose negligent driving had caused
the accident. All that he has pleaded in his claim petition is
that 'the accident took place due to rash and negligent driving
of the truck in question. However, in case the Tribunal comes
to the conclusion that the accident took place due to rash and
negligent driving of the Indica Car, even in that event, the
claimant is entitled to compensation from the owner, driver
and insurer of Tata Indica car'. Quite clearly the claimant
had not positively pleaded negligence only on part of the truck
driver. He had not ruled out the possibility of accident
happening on account of rash and negligent driving of car by
.
respondent No.9. It has also to be kept in mind that the
claimant was himself travelling in the car.
4(i)(d) Secondly, the FIR No.88/2008 regarding the
accident was registered on 22.02.2008 at Police Station Sadar,
District Mandi, H.P. The FIR records that the accident
occurred on account of rash and negligent driving by the
driver of car (respondent No.9). A criminal case was registered
against him under Sections 279, 337 and 338 of Indian Penal
Code. Learned counsel for the appellant argued that the
driver of the car has since been acquitted in the said criminal
case. But the fact remains that acquittal of car driver in the
criminal trial will not come to his aid in the Motor Accident
Claim case. It is settled principle that the degree of proof
required in criminal trial is at much higher pedestal than
required in motor accident claim case. In this regard it will be
appropriate to refer to following paras of (2021) 1 Supreme
Court Cases 171, Anita Sharma and others Vs. New India
Assurance Company Limited and another: -
"21. Equally, we are concerned over the failure of the
High Court to be cognizant of the fact that strict
principles of evidence and standards of proof like in a
criminal trial are inapplicable in MACT claim cases.
The standard of proof in such like matters is one of
preponderance of probabilities, rather than beyond
.
reasonable doubt. One needs to be mindful that the
approach and role of Courts while examining
evidence in accident claim cases ought not to be to
find fault with non-examination of some best eye-
witnesses, as may happen in a criminal trial; but,
instead should be only to analyze the material placed
on record by the parties to ascertain whether the
claimant's version is more likely than not true.
22. A somewhat similar situation arose in Dulcina
Fernandes v. Joaquim Xavier Cruz wherein this Court
reiterated that:
"7. It would hardly need a mention that the plea
of negligence on the part of the first
respondent who was driving the pickup van
as set up by the claimants was required to
be decided by the learned Tribunal on the
touchstone of preponderance of probabilities
and certainly not on the basis of proof beyond
reasonable doubt."
4(i)(e) The learned Tribunal has independently
examined the facts of the case to come to the conclusion that
the accident had occurred because of rash and negligent
driving of car by respondent No.9. Reference in this regard
can be aptly made to following findings recorded in paragraph
15 of the judgment: -
"15. Moreover, respondents have also filed on record the
copies of the statements of witnesses recorded by
Mandi police in the criminal case which are
Ex.RW4/D-1 to Ex.RW-4/D-6. The copy of site plan
prepared by the police in criminal case Ex.PW5/E
has also been filed on record. This site plan is
revealing that truck No. HP-20-7785 was on extreme
left side of the road and there is about one and half
feet vacant road on the left side of the truck, whereas
.
the collusion between the truck and car took place on
the middle of the road shown as mark-B and there is
about fourteen feet road on the left side of the car.
That means the car driver was not on the left side of
the road when collusion between both the vehicle
took place. This fact goes to establish that the car
driver had turned his vehicle towards middle of the
road i.e. right side of the road which caused accident
in question. This fact goes to suggest that certainly
driver of the car was not having full control over his
vehicle when he was driving it on public highway
and he failed to keep his vehicle towards the left
side of the road and this omission in nothing but rash
and negligent driving on the part of car driver
respondent No.2 in committing the accident in
question."
I have seen the site plan proved as Ex.PW-5/E on
record of the case. The site plan does go to show that the car
driver had turned his vehicle towards the middle of the road,
whereas the truck was being driven on the extreme left side of
the road. The collusion between the truck and car took place
in the middle of the road with around 14 feet road available on
the left side of the car. This establishes that the accident in
question had occurred because of rash and negligent driving of
car by respondent No.9.
4(i)(f) The mere fact that respondent No.7 (truck driver)
did not step into the witness-box is not sufficient in the facts
of the case to draw adverse inference against him regarding
.
his driving the truck negligently, as has been contended for
the appellant. Each case has to be examined on its own facts.
In the facts of the instant case, it is quite clear that the
accident in question was caused because of rash and negligent
driving of car by respondent No.9. I see no good reason to
interfere with the findings returned in this regard by the
learned Tribunal. Point No.1 is accordingly answered against
the appellant.
4(ii) Point No.II: Liability to pay the compensation:
It is the case of the petitioner that his Tata Indica
car was duly insured with respondent No.2-insurance
company, therefore liability to pay the compensation amount
should have been fastened upon respondent No.2.
4(ii)(a) The appellant's above submission is de hors the
facts of the case and against settled legal position. The
accident in question took place on 21.02.2008. The Insurance
cover note was issued in favour of the appellant by
respondent No.2 (Insurance Company) on 23.04.2007,
covering the period up to 22.04.2008. The record shows that
the appellant had paid premium of Rs.9490/- towards the
insurance policy vide cheque dated 20.04.2007 (Ex.RW3/A).
This cheque was dishonoured by the ICICI Bank vide memo
.
dated on 28.04.2007 (Ex.RW3/B). Consequently, the insurer
(respondent No.2) cancelled the insurance policy and sent
specific intimation in this regard to the appellant on
03.05.2007 (Ex.RW4/A and Ex.RW4/E). The Regional
Transport Officer, Shimla was also intimated by the insurer
about cancellation of the insurance policy vide separate
communication dated 03.05.2007 (Ex.RW4/D). The insurer
has also placed on record the postal receipts (Ex.RW-4/B) of
the communications sent to the appellant. The relevant
extract of dispatch register was proved as Ex.RW-4/F.
4(ii)(b) In the given facts of the case, it will be
appropriate to notice here 2012 (5) SCC 234, titled as
United India Insurance Company Vs. Laxmamma and
others, wherein it was held that when cheque issued towards
payment of insurance premium gets dishonoured and Insurer
cancels the insurance policy subsequent to the accident, in
such circumstances the insurer has to stand by the award as
its statutory liability to indemnify third parties subsists on
the day of accident. Insurer could only recover the amount
from insured. Relevant para from the judgment is as under: -
"26. In our view, the legal position in this: where the policy of
.
insurance is issued by an authorized insurer on
receipt of cheque towards the payment of premium
and such a cheque is returned dishonoured, the
liability of the authorized insurer to indemnify the
third parties in respect of the liability which that
policy covered subsists and it has to satisfy the
award of compensation by reason of the provision of
Section 147(5) and 149(1) of the MV Act unless the
policy of insurance is cancelled by the authorized
insurer and intimation of such cancellation has
reached the insured before the accident. In other
rwords, where the policy of insurance is issued by an
authorized insurer to cover a vehicle on receipt of the
cheque paid towards premium and the cheque gets
dishonoured and before the accident of the vehicle
occurs, such insurance company cancels the policy of
insurance and sends intimation thereof to the owner,
the insurance company's liability to indemnify the
third parties which that policy covered ceases and the
insurance company is not liable to satisfy awards of
compensation in respect thereof."
In the instant case, the insurance policy was
issued on 23.04.2007. Within a view days of issuance, it was
cancelled on 03.05.2007 on account of dishonouring of
cheque issued by the appellant. The intimation of cancellation
of the insurance policy was duly sent by it to the insured-
appellant as well as the concerned RTO on 03.05.2007 itself.
The accident in question occurred on 22.02.2008. In view of
law laid down in Laxmamma's case supra, Insurance
Company having not only cancelled the Insurance policy, but
.
also having duly intimated the appellant (insured) and the
concerned RTO about cancellation of the policy months before
the accident, is not required to satisfy the award or to
indemnify the insured towards third party liability. Learned
counsel for the appellant tried to raise a plea that the Junior
Assistant of concerned RTO office, who stepped into the
witness box as RW-5, denied having received intimation about
the cancellation of the insurance policy. However, holistic
reading of the statement of RW-5 makes it evident that he as
a Junior Assistant had only denied that any record regarding
the receipt of the cancellation of insurance policy was kept in
their office. The insurer, therefore, had discharged its
obligations that was required from it in law. It had not only
cancelled the Insurance Policy on account of dishonor of
cheque issued by the insured, but had also timely intimated
this fact to all concerned including the appellant/insured,
and the concerned RTO. The accident was caused months
after cancellation of the insurance policy. The relevant
documents in this regard have been placed on record and
proved by the insurer.
The findings of learned Tribunal in fastening the
.
liability to satisfy the awarded amount upon the appellant
(owner of car) and his driver (respondent No.9) are thus in
order. Point is answered accordingly against the appellant.
5. For the foregoing reasons, I see no merit in the
instant appeal. The same is accordingly dismissed, so also
r to
pending miscellaneous application(s), if any.
Jyotsna Rewal Dua
Judge
October 28, 2022
R.Atal
