Jaswinder Kaur and Another vs Soma Chauhan and Another

Mansoor Ahmad Mir, Actg. C.J.

Challenge in this appeal is to the award, dated 14.5.2008, passed by Motor Accident Claims Tribunal, Shimla, H.P., (for short, ''the Tribunal''), in Claim Petition No. 34-S/2 of 2006, titled as Soma Chauhan versus Ghaneder Singh and others, whereby compensation to the tune of Rs. 6,02,600/- stands awarded in favour of the claimant (respondent No. 1 herein), and against the owner and the driver (appellants herein), with interest at the rate of 7.5%, from the date of the filing of the Claim Petition till its realization, (for short, the ''impugned award'').

Brief facts:

Smt. Soma Chauhan became victim of a vehicular accident, which was allegedly caused by Ghaneder Singh, driver, while driving Maruti Car bearing No. HP-52-0340, rashly and negligently, on 8th September, 2005, at about 11.00 a.m., at Bades Nallah near Ever Sunny, Shimla-Bharari Road, in which the claimant sustained injuries. The claimant filed the Claim Petition seeking compensation to the tune of Rs. 5.00 lacs, as per the breakups given in the Claim Petition.

The Claim Petition was resisted by the respondents i.e. insurer, driver and owner by filing replies.

From the pleadings of the parties, the following issues were framed by the Tribunal:

i) Whether the petitioner suffered injuries as a result of rash and negligent driving of the respondent No. 1? OPP

ii) In case issue No. 1 is proved to what amount the petitioner is entitled and from which of the respondents? OPP

iii) Whether the respondent No. 1 was not having valid and effective driving licence as alleged? OPR-2.

iv) Relief.

After scanning the evidence, oral as well as documentary, the Tribunal awarded compensation to the tune of Rs. 6,02,600/-, with 7.5% interest from the date of filing of the Claim Petition till its realization, in favour of the claimant and against the owner and the driver, and the Insurance Company (respondent No. 2 herein) was discharged from the liability.

Claimant and the insurer have not questioned the impugned award, thus it has attained finality so far as it relates to them. The owner and the driver have questioned the impugned award, by way of the present appeal, only to the extent of saddling with the liability.

I have heard learned counsel for the parties and have gone through the insurance policy. From the bare perusal of the insurance policy, it is not forthcoming whether the occupant of the offending car was covered under the policy. Though the seating capacity of the vehicle is shown as four persons in one of the columns, but, while going through the note PA, it appears that cover for the owner and the driver is for Rs. 2,00,000.00. It is also mentioned in the policy document that Rs. 661/- have been paid under the head ''liability'' (Rs. 500/- for basil liability + Rs. 100/- under the head PA and Rs. 61/- as service tax). Thus, it is not clear from the policy document whether the occupant traveling in the vehicle was covered or not, which fact has to be proved by the insured/owner or by the insurer, by leading evidence. The Tribunal has not dealt with this aspect and has also not made distinction between the "comprehensive policy" and the "package policy".

It is worthwhile to mention here that the Tribunal has treated the occupant of the vehicle as gratuitous passenger, which plea was never taken by the insurer. I wonder from where the Tribunal has concluded that the occupant was traveling in the offending vehicle as gratuitous passenger.

In the given circumstances, I deem it proper to remand the case to the Tribunal below with a direction to the insurer and the owner to lead evidence before the Tribunal to the effect whether the occupant of the car was covered by the said insurance policy and further the Tribunal is directed to return the findings on the said issue.

Parties, through their counsel, are directed to cause appearance before the Tribunal on 1st July, 2014 and the Tribunal is directed to return the finding viz-a-viz issue No. 2 so far as it relates to the saddling of the liability i.e. "from which of the respondents", within eight weeks from 1st July, 2014.

Registry to send the record of the case alongwith a copy of this judgment forthwith so as to reach the Tribunal below well before the date fixed.

The impugned award, so far as it relates to saddling of the liability on the appellants, is set aside and the appeal is disposed of accordingly.