FAO No. 298 of 2010 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No. 298 of 2010 (O&M) Date of Decision : 25.1.2010 State of Haryana & another .......... Appellants Versus Nagenderpal @ Nagender & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. A.S. Ghangas, Addl. A.G., Haryana for the appellants. **** VINOD K. SHARMA, J. (ORAL) This appeal by the State of Haryana is directed against the award dated 1.10.2009, passed by the learned Motor Accident Claims Tribunal, Narnaul (hereinafter referred to as “the Tribunal”), allowing the claim petition filed by the claimant under Section 166 of the Motor Vehicle Act. The claimants had claimed the compensation, on the pleading, that on 14.12.2006, claimants were coming back on two wheeler scooter from village Khairoli to shop of Nagender situated at Jatwas, after repairing shutter of shop of Ajit Singh. The scooter was driven by Ajit Singh and Nagenderpal was sitting behind as pillion rider. The scooter was said to be driven at moderate speed, on the correct side of the road. It was the case of the claimants, that it was at about 11.30 a.m., when they reached just ahead of village Nangal Sirohi, then suddenly a marshal jeep No. HR-35A/7777 being driven by Surender Kumar- FAO No. 298 of 2010 2 respondent No.1 came at a fast speed, rash and negligent manner. In order to avoid the accident Ajit Singh took the scooter to kacha side of the road, but even then the said marshal jeep directly hit against the said scooter, due to which they sustained grievous injuries. The accident was said to have occurred due to rash and negligent driving of Suresh Kumar. The jeep after accident was stopped by the villagers. An FIR regarding this accident was also registered. The claim petition was contested by denying all the averments. The case set up by the respondents was, that the FIR registered was false, with an object to get compensation. It was also pleaded, that accident had occurred due to sole negligence of the scooterist, as he struck against the jeep by coming on the wrong side of the road, while overtaking another vehicle. Respondent No.1 also raised a plea, that he being employee of the State, was not liable to pay any compensation, as he was discharging his official duties under the control and supervision of respondents No.2 & 3. The liability to payment of compensation was denied. Similar plea was also taken by respondents No.2 & 3, that accident had occurred due to rash and negligent driving of the scooterist while overtaking some other vehicle. It was claimed by respondents No.2 & 3, that they were not liable to pay any compensation, as the Govt. vehicle was duly insured with respondent No.4 i.e. the Oriental Insurance Company. On the pleadings of the parties, learned Tribunal framed the following issues :- “1. Whether petitioners Nagenderpal and Ajit Singh suffered injuries in a road accident which took place on 14.12.2006 in the area of Nangal Sirohi (Police Station FAO No. 298 of 2010 3 Mohindergarh) due to rash and negligent driving on the part of respondent No.1?OPP 2. Whether the petitioners are entitled to award of compensation and if so, how much and from whom?OPP 3. Relief. The learned Tribunal on appreciation of evidence recorded a finding, that Nagenderpal and Ajit Singh claimants suffered injuries in a road accident which took place on 14.12.2006 in the area of Nangal Sirohi (Police Station Mohindergarh) due to rash and negligent driving of respondent No.1. The claimants were held entitled to compensation. Though no issue was claimed with regard to the liability of the Insurance Company, however, this point was raised by the appellant and argued before the learned Tribunal. The plea raised by the State was rejected by the learned Tribunal by recording as under :- “39. Now, coming to the liability of the respondent. Issue No.1 pertaining to sustaining injuries to petitioners by rash and negligent driving of Surender Kumar respondent no.1 is already proved as discussed above. Respondent no.1 also examined RW1 Sh. Rajnish Goel District Nazir from the office of DC. He deposed that he has brought the official record pertaining to vehicle no. HR-35A/7777. As per record the vehicle in question was inspected by the surveyor of insurance company on 14.12.2006 for insurance of vehicle in question and they have deposited Rs. 150/- as inspection fee vide receipt Ex.RW1/A. He further deposed that on the basis of inspection the vehicle was got insured by insurance company vide cover note Ex.RW1/B. FAO No. 298 of 2010 4 He also admitted that Surender Kumar son of Shanker Ram (herein respondent no.1) was working as driver in DC office Narnaul, vide posting letter RW1/C. Surender Kumar made an application on 12.12.2006 for issurance of the vehicle in question, which Ex. RW1/D. The valied DL of Surender Kumar is Ex. RW1/E and registration certificate of vehicle no. HR35A/7777 is Ex. RW1/F. 40. Respondent no.1 in his affidavit Ex. RW2/A has averred that he was driving the said vehicle for the official use under the supervision and instructions of the senior officers and he was having the valid driving lience and on this count also he is not liable to pay any compensation to the petitioners. 41. On the other hand, Sh. SK Chawla Branch Manager from Oriental Insurance Company, Narnaul who was examined on behalf of respondent no.4 deposed that Ex. PW3/A is the proposal form received by their office on 15.12.2006 vide their premium collection no. 5635 dated 15.12.2006 Ex. RW3/B is the inspection report dated 15.12.2006 and Ex. RW3/C is the receipt of premium dated 15.12.2006 Ex. RW3/D in the insurance policy which is valid from the period 18.12.2006 to 17.12.2007. Thus, as per deposition of RW3 the said insurance policy was not effective for the accident which took place on 14.12.2006. 42. Sh. Hemant Kumar surveyor was also examined by RW4 and he deposed that he is empanelled surveyor of number of insurance companies. On 15.12.2006 at about 12.15 p.m. he inspected the vehicle no. HR-35A/7777 and FAO No. 298 of 2010 5 submitted his pre-insurance inspection report to Oriental Insurance Company at Narnaul office on the same day. Receipt Ex. RW1/A is filled up in his hand writing and bears his initial at point-A. However, the date (14.12.2006) is not in his hand writing and the same is not written by him. He further volunteered that he physically inspected the vehicle on 15.12.2006, and thus, question of issuing the receipt on 14.12.2006 does not arise. RW4 further deposed that insurance premium receipt is also mentioned on the bottom of Ex.RW1/A and the same is a separate document and does not form part of receipt Ex.RW1/A. He further volunteered that this document seems to be prepared by photocopy of the receipt alongwith the insurance premium receipt. Insurance premium receipt is always issued by the insurance company and not by him. Charges regarding the inspection are directly obtained by him from the concerned party and the insurance company is not concerned with the same. He has not obtained any charges from the insurance company.43. Sh. PR Sharma on behalf of respondent no.2 and 3 submitted that as vehicle was physically inspected by surveyor on 14.12.2006, thus the insurance company is liable to pay compensation as the insurance policy will be deemed to be effective from the date of physical inspection of the vehicle. He further submitted that respondent no.2 and 3 are not liable to pay any compensation as the accident took place due to sole negligence of injured/ petitioner by driving their scooter in rash and negligent manner and causing the head-on collision by coming on the wrong side of the FAO No. 298 of 2010 6 road. 44. Learned counsel for respondent no.1 submitted that he is not liable to pay any compensation as accident took place due to sole negligence of scooterist by causing the accident by coming on the wrong side of the road while overtaking another vehicle. He further submitted that he is already acquitted by learned trial Magistrate and thus, he is not liable to pay any compensation to the petitioners. He further submitted that even if any compensation is granted, insurance company is liable to pay the same as the vehicle was physically inspected by surveyor on 14.12.2006. He further submitted that, even if insurance company is exonerated from the liability, even then he is not liable to pay any compensation as he was performing the official duties as per the instructions of his senior officers for driving of the said vehicle. 45. Sh. Bajrang Lal Gupta learned counsel for respondent no.4 submitted that insurance company is not liable to pay any compensation as the said jeep no. HR- 35A/7777 was not duly insured with their company on 14.12.2006. He further submitted that as per deposition of surveyor the said vehicle was inspected for the purpose of insurance on 15.12.2006 only i.e. after the accident, and thus respondent no.4 is not liable to pay any compensation. He further submitted that even physical inspection of the vehicle before the accident does not bind the insurance company in any manner as no insurance cover note was issued by the FAO No. 298 of 2010 7 insurance company and the liability of the insurance company starts only from the date of issue of cover note and in the present case, the insurance policy is valid from the period 18.12.2006 to 17.12.2006 as proved by RW3 Sh. SK Chawla. 46. After hearing all the parties, I have given my thoughtful consideration to the same. Bare perusal of the insurance policy Ex. PW3/D shows that the said insurance policy is valid only for the period 18.12.2006 to 17.12.2007, whereas as the accident admittedly took place on 14.12.2006. RW4 specifically stated that he physical inspected the said vehicle HR-35A/7777 on 15.12.2006 only at about 12.15 p.m. ( i.e. one day after the date of accident dated 14.12.2006). Further I am of the considered opinion that liability of the insurance policy cannot be fastened from the date of physical inspection for the vehicle and thus, even if it is presumed that the said vehicle was inspected on 14.12.2006 even then respondent no.4 is not liable to pay any compensation. 47. In view of the above facts and circumstances, respondent no.4 is exonerated from the liability to pay the compensation, whereas respondents no. 1 to 3 are jointly and severally liable to pay the compensation to the petitioners, though the primarily liability is of the respondent no.3 State of Haryana.” The learned Addl. A.G., Haryana, challenged the finding recorded above, on the ground that when it was proved that Surveyor had inspected the vehicle prior to the time of occurrence, the Insurance policy FAO No. 298 of 2010 8 was to be operative from the date of inspection and not when the policy became operative. This plea is totally misconceived. The policy comes into operation, when it is made operative and not from the date when the Surveyor inspects the vehicle, as contended. No ground to interfere with the well reasoned award of the learned Tribunal is made out. No merit. Dismissed. 25.1.2010 ( VINOD K. SHARMA ) 'sp' JUDGE