IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 213 of 2008 Date of Decision : July 7, 2009 Bajaj Allianz General Insurance Company Ltd. Appellant. Versus Smt. Santosh Chauhan and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1Yes. For the appellant : Mr. Neeraj Gupta, Advocate, for the appellant. For the respondents : Mr. Ramesh Negi, Advocate, for respondents No. 1 to 3. Mr. B. S. Chauhan, Advocate, for respondents No. 4 and 5. Sanjay Karol, J. (Oral) The insurer-appellant herein has assailed the impugned award dated 15.1.2008 passed by the Motor Accident Claims Tribunal, Shimla in M.A.C.C. No. 27-S/2 of 2006, titled as Smt. Santosh Chauhan and others versus Bajaj Allianz General Insurance Company Ltd. and others. The necessary facts leading to the filing of the present appeal are as under: Present respondents No. 1 to 3, as claimants filed a petition under Section 166 of the Motor Vehicle Act, 1988 (hereinafter 1 Whether reports of Local Papers may be allowed to see the judgment? 2 referred to as the Act) alleging that their predecessor-in-interest Sh. Mathu Ram was travelling in vehicle (Alto car No. HP-09A-1295) on 27.11.2005 which was owned by Sh. Rajinder Singh, respondent No. 4 herein and driven by Sh. Pradeep alias Happy, respondent No. 5 herein. Unfortunately due to the negligence of the driver, on the said date the vehicle met with an accident as a result of which Sh. Mathu Ram died on the spot. He was brought to Civil Hospital, Nerwa, H.P. where he was declared dead by the Doctor. F.I.R. dated 27.11.2005 was registered with the Police Station, Chopal under Sections 279, 337 IPC. The deceased Sh. Mathu Ram was a young man of 46 years of age and the only bread earner in the family. He was having an annual income of Rs. 9 lacs and thus the claimants were entitled to a compensation of Rs. 25 lacs. The vehicle was insured with M/s Bajaj Allianz General Insurance Company Ltd. and the insurer contested the petition by filing the reply, inter alia pleading that at the time of the accident the deceased was travelling as a gratuitous passenger and the material terms and conditions of the policy having been breached, the insurer was not liable to have indemnified the insured. Importantly, in the reply it is not the case of the insurer that the claim petition was filed in collusion with the driver or the owner of the vehicle. 3 The owner and the driver filed a joint reply and contested the petition by disputing the negligence of the driver or the income of the deceased. The insurer also filed an application dated 6.6.2006 on 20.6.2006 under Section 170 of the Act, contents whereof are reproduced in entirety as under: “APPLICATION ON BEHALF OF RESPONDENT No.1 UNDER SECTION 170 OF THE MOTOR VEHICLE ACT. Respectfully Showeth:- 1. That the Claimants Non-applicants have filed the claim petition for compensation on account of death of one Sh. Mathu Ram, while travelling in the vehicle being driven by respondent No. 3. 2. That the claim petition has been filed by the petitioner/Non Applicant in collusion with respondent No. 2 & 3. In view of the facts the applicant/ respondent No. 1 apprehends that respondent No.2 and Respondent No.3 will not properly and effectively contest the petition. It will be therefore in the interest of justice, if the applicant is allowed to take all the defences as available to it under Motor Vehicle Act. It is therefore prayed that the application may kindly be allowed and the applicant/respondent No. 3 be allowed to take all defences as available under the Motor Vehicle Act.” Based on the pleadings of the parties the Tribunal passed the order dated 20.7.2006, framing the issues and dismissing the insurer’s application in the following terms:- 4 “ No rejoinder is sought to be filed. Documents filed by the petitioner. On the pleadings of the parties, the following issues were framed:- 1) Whether deceased died as a result of rash or negligent driving of respondent No. 3? OPP 2) In case issue No. 1 is proved, to what amount the petitioners are entitled and from which of the respondents? OPP 3) Whether respondent No.3 was not having a valid and effective driving licence as alleged? OPR-3 4) Whether the vehicle was being driven in violation of the terms of the insurance policy, as alleged? OPR-3. 5) Relief. Issues read over and explained. No other issue arise or claimed. For petitioners evidence, to come up on 30th October, 2006. Process fee etc. within fifteen days be filed. The application under Section 170 of the Motor Vehicles Act is dismissed as no case is made out for allowing the application at this stage.” Opportunity to lead evidence was afforded to the parties. Based on the material on record the Tribunal held that Sh. Mathu Ram had died in an accident. Sh. Pradeep, driver of the vehicle was found to have driven the vehicle in a rash and negligent manner. The claimants being dependents were held entitled to compensation of a sum of Rs. 3,48,000/- which was determined, (i) towards loss of income Rs. 2,88,000/-, (ii) loss of consortium Rs. 15,000/-, (iii) loss of love and affection Rs. 20,000/- and (iv) 5 conventional charges Rs. 25,000/-. Interest @ 7.5 % per annum was also awarded from the date of filing of the petition till payment. The driver was held to have possessed with a valid and effective driving licence and the vehicle being insured in terms of insurance policy Ext. R1 and there being no material breach of terms and conditions of the policy, the insurer was held liable to indemnify the insured and consequently was directed to pay the amount of compensation as awarded. Mr. Neeraj Gupta, learned counsel for the insurer has assailed the award for the reasons that (i) Order dated 20.7.2006, rejecting the application filed under Section 170 of the Act is a non-speaking order hence, keeping in view the ratio of law laid down by the Apex Court in Shankarayya and another versus United India Insurance Co. Ltd. and another, (1998) 3 SCC 140 the insurer be permitted to raise all defences as though permission under Section 170 of the Act was accorded. (ii) In any event the material terms and conditions of the policy stood breached as from the record it was evident that at the time of the accident five passengers were travelling in the vehicle which is in violation of the provisions of law. Hence, the insurer cannot be held liable. Per contra Mr. B. S. Chauhan, learned counsel for the owner and the driver has supported the impugned award for the reasons set out therein and has invited my attention to the material on record. 6 Mr. Ramesh Negi, learned counsel for the claimants, has in fact pressed for enhancement of the amount of compensation awarded as according to him while determining the amount of compensation payable to the claimants the Court below erred in correctly appreciating the material on record. Heard learned counsel for the parties and also perused the record. The reply to the main petition and the application under Section 170 of the Act, though dated 6.6.2009, were filed together on 20.6.2006. This was prior to the filing of the reply by the owner and the driver, which in fact was filed on 4.7.2007. In the reply it is not the case of the insurer that the claimants and the other respondents were acting in collusion with each other and have filed the petition only to avail the monetary compensation from the insurer. No issue was either framed or pressed by the insurer nor any evidence led to the said effect. The Court below, in my considered view, after framing the issues rightly rejected the application by holding that no case was made out for allowing the same. Noticeably the contents of the application are absolutely vague, unspecific and accept for bald assertion of apprehension that respondents No. 2 and 3 will not properly and effectively contest the petition there was nothing on record to verify the truthfulness or correctness of the same. There is also nothing to substantiate the same. The insurer chose not to 7 contest the said order and accepted the same. Importantly, liberty was granted to the insurer to move the Court later. The order specifically recorded that the application was dismissed “at this stage”. Even subsequently the insurer neither pleaded nor proved either before the Tribunal reiterating what had been cursorily mentioned in the application that the driver and the owner were not properly and effectively contesting the petition. The plea has also not been taken in the grounds of appeal. It is true that while dismissing the application the Tribunal could have assigned further reasons but however keeping in view the facts and circumstances of the present case it cannot be said that the order passed by the Tribunal is illegal. Hence I am of the considered view that the insurer would not be entitled to assail the impugned award on grounds other than entitled to in law. Ext. RW1/A is the form of certificate of registration (Form No. 23) which prescribes the seating capacity of the vehicle to be four including the driver. Undisputedly the vehicle was insured with the insurer in terms of insurance policy Ext. R-1 and importantly, in terms thereof, the seating capacity prescribed is five. The Tribunal has noticed the fact that the premium covering third party risk stood paid and a separate premium towards legal liability to driver and occupants as shown in the policy was charged by the insurer and duly paid by the insured. How the insurer could have charged extra premium in violation of the terms of the certificate of registration is 8 not evident from the record. Importantly the insurer has not led any oral evidence in support of his case. Noticeably, in the pleadings it is not the case of any of the parties that the vehicle was being driven in violation of the certificate of registration nor was such an issue ever framed by the Tribunal or the parties led any evidence in this regard. The same was also not argued before the Tribunal and it is only in the grounds of appeal, for the first time, that the insurer has taken up this defence. Be that as it may be, the vehicle could not have been driven in violation of the provisions of law. The case as argued by Mr. Neeraj Gupta, learned counsel for the insurer, is that the contents of F.I.R. Ext. PW1/A evidences the fact that in the vehicle five persons were travelling at the time of the accident. According to him, there is contradiction in the statements of Smt. Santosh Chauhan (PW-3) and Sh. Sunil Kumar (PW-7) about the names of the actual occupants of the vehicle which only corroborates the truthfulness of the contents of the F.I.R. In order to prove its case the claimants examined Sh. Nish (PW-1) who proved the registration of F.I.R. No. 122/05 on 27.11.2005, with the Police Station Chopal, under Sections 279, 304- A of the Indian Penal Code (Ext. PW 1/A). F.I.R. Ext. PW 1/A only records that on preliminary investigation it was found that at the time of accident driver Sh. Pradeep, Sh. Ranjit Singh, Sh. Mohan Singh, Sh. Mathu Ram and Sh. Rajinder Singh were sitting in the 9 vehicle and all the occupants sustained injuries as a result of the accident. Apparently, except for the present claimants, none else has filed a claim petition. Undisputedly the insurer has also settled the owner’s claim towards damage of the vehicle (Marks A, B and C). While settling the said claim, the plea of violation of either the terms of the policy or the certificate of registration ever taken by the insurer. Hence in my considered view at this stage it would not be open for the insurer to raise the said plea. Be that as it may be, I am still proceeding to examine the contention even on merits. In support of her claim, claimant Smt. Santosh Chauhan examined herself as PW-3. She also proved income of her deceased husband through Sh. Narayan Singh (PW-4) and Sh. Partap Singh (PW-5). The negligence of the driver was proved through the statement of Sh. Sunil Kumar (PW-7). While being cross examined by the insurer, PW-3 has simply stated that at the time of the accident four persons namely Sh. Rajinder, Sh. Pardeep, Sh. Ranjit and her deceased husband were travelling in the vehicle. Importantly it has not been specifically suggested to her that at the time of the accident five persons were actually travelling in the vehicle. Also from the deposition of PW-7 it is evident that only four persons were travelling in the vehicle at the time of the accident as 10 according to him it was deceased Sh. Mathu Ram, Sh. Pradeep, Sh. Rajinder and Sh. Mohan who were travelling in the vehicle. No doubt there is variation in the names as disclosed by PW-3 and PW- 7, but however, this witness has not been cross examined by the insurer. Noticeably F.I.R. was only recorded on the basis of preliminary investigation. What was the final outcome of the investigation, who all were injured, how many passengers were finally found to have travelled has not come on record. That apart, even the issue of violation of the terms and conditions of the certificate of registration and that five passengers were travelling at the time of the accident was also not suggested by the insurer to the driver or the owner of the vehicle who examined themselves as Pradeep Kumar (RW-2) and Rajinder Singh (RW-1). Thus from the material on record it would not be right to contend that at the time of the accident five persons were actually travelling in the vehicle. The contention therefore needs to be rejected. It is a settled position of law that breach of the terms and conditions of the policy are to be specifically pleaded and proved, and the burden to prove is heavily on the insurer.[National Insurance Co. Ltd. versus Swaran Singh and others, (2004) 3 SCC 297] In the present case the same has not been discharged. 11 Thus I find no merit in the present appeal. The material on record has been considered by the Tribunal in its entirety and there is no illegality or irregularity in its appreciation. The contention of the learned counsel for the claimants that the amount be enhanced needs to be rejected for two reasons (i) the claimants have not filed any appeal/cross objections (ii) the evidence on the question of compensation has been correctly appreciated by the Tribunal. The Tribunal has taken the income of the deceased to be Rs. 2000/- per month for the purposes of determining the dependency and loss of income towards the same. The deceased was of the age of 46 years. The compensation thus has been correctly determined and awarded to the claimants. For the aforesaid reasons the present appeal is dismissed. (Sanjay Karol), Judge. July 7, 2009 (PK)