Oriental Insurance Company Ltd v. Sri Ankur Kumar & Anr.

in the petitioner are that on 06.06.2004 Sri Ankur Kumar was driving the Maruti Zen No. HR26G/4900 Dehradun to Kotdwar. At about 05:00 p.m. when he reached near Chiddarwala, suddenly, the tyre of the said car got bursted due to which he lost control over the car and the said car fell into the Khud. In this accident he sustained serious injuries. He was admitted in the Himalyan Institute, Jolygrant, Dehradun where his right leg was operated and he is still unable to walk properly. According to the claimant, he spent Rs. 4.00 on his treatment and in future also he need some financial assistance. Therefore, the 2 claimant/injured filed claim petition to the tune of Rs. 13,00,000/- as compensation.

The owner as well as the Oriental Insurance Company contested the claim petition by filing their separate written statements. The owner of the vehicle pleaded that the said vehicle was insured with the Oriental Insurance Company Ltd. and the driver of the vehicle was having the valid and effective driving licence. The driver of the vehicle entitled to get compensation, if any, by the Insurance Company but not by the owner of the vehicle. On the other hand, the Insurance Company has submitted that the driver of the vehicle was not having the valid and effective driving licence. It has further alleged that the accident took place due to negligence of the driver himself, therefore, the Insurance Company was not liable to pay any compensation.

On the basis of the pleadings of the parties, the Tribunal framed relevant issues, which were discussed in great detail. Both the parties led evidence in support of their cases. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition against the Insurance Company to the tune of Rs. 1,33,000/- vide judgment and award dated 09.01.2005.

Feeling aggrieved by the aforesaid judgment and award, the Insurance Company preferred this appeal before this Court. 3

Heard Sri I.P. Kohli, learned counsel for the appellant, Sri Promod Belwal, learned counsel for the respondents and perused the record.

Perusal of the impugned judgment and award as well as entire record available before me, I find that the Tribunal has rightly come to the conclusion that the accident took place due to tyre burst and there is no fault of the driver. The vehicle in question was insured with the Oriental Insurance Company Ltd., therefore, the Tribunal fixed the liability upon the Insurance Company. As far as the insurance of the vehicle is concerned, paper No. 10C/2 reveals that the vehicle in question was insured from

03.07.2003 to 02.07.2004 and further paper No. 10C/4 reveals that the licence of the driver of the vehicle was valid and effective from 19.09.2003 to 18.09.2023, therefore, the Tribunal has rightly imposed penalty of compensation upon the Insurance Company.

Learned counsel for the appellant/Insurance Company has submitted before the Court that the Tribunal has committed illegality while deciding the issue Nos. 1 to 4. The Tribunal has not held negligence of anyone including the petitioner and since the petitioner himself was driving the vehicle and it was not a third party accident and hence, he was not entitled to get any compensation from the Insurance Company.

Learned counsel for the respondents made rival contention raised by learned counsel for the appellant. He has submitted before the Court that the Tribunal has rightly 4 held responsible to pay compensation as the said vehicle was insured with for owner as well as driver/employer.

After hearing learned counsel for the parties, in order to solve this controversy, I have gone through the paper No. 10c/2 which is the cover note of the Insurance Policy. Perusal of the said document, it is clear that the vehicle was insured for owner as well as employer/driver for Rs. 2,00,000/-. Therefore, the submission raised by learned counsel for the appellant has no force.

The Tribunal in order to calculate the amount of compensation considered the operation bill for Rs. 40,000/- and Rs. 43,000/- towards medical bills. The Tribunal further awarded a sum of Rs. 50,000/- towards physical and mental agony. In total, the Tribunal awarded a sum of Rs. 1,33,000/- for compensation against the Oriental Insurance Company Ltd. which shall be payable within two months failing which the same amount be paid to the claimant along with interest @ 9% per annum. From my point of view, the Tribunal has rightly awarded the amount of compensation which cannot be interfered at this stage.

Accordingly, the appeal filed by the Insurance Company is dismissed. No order as to costs.

As I have already discussed that the amount of compensation is justified. Consequently, the cross objection filed by the injured/respondent is dismissed. 5

The statutory amount deposited before this Court by the appellant at the time of filing the appeal be remitted to the Tribunal concerned.

05.06.2008 ASWAL (B.C. Kandpal, J.)