IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 310 of 2005 Date of Decision: 1st October, 2008 Roshan Lal Appellant Versus Mehar Chand and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr. Suneet Goel, Advocate. For the respondents: Mr. Ramakant Sharma, Advocate, for respondent No.1. Mr.B.M.Chauhan, Advocate, for respondent No.2. Sanjay Karol, J. (Oral) In the present appeal, the owner has assailed the award dated 28.5.2005 passed by Motor Accident Claims Tribunal-II, Fast Track Court, Hamirpur, H.P. in MACT No. 4/2001, RBT No.34/2002 RBT No.3/2004, titled as Mehar Chand Azad vs. Sh. Roshan Lal and another. Two claim Petitions being MACT No. 4/2001, RBT No.34/2002 RBT No.3/2004 and MACT No. 6/2000 RBT No.35/2002, RBT No.4/2004 were decided in terms of impugned award. The appeal filed by the claimant of MACT No. 6/2000 RBT No.35/2002, RBT No.4/2004, was withdrawn by him, and, therefore, the present appeal is Whether the reporters of Local Papers are allowed to see the Judgment? 2 concerned with the facts of the case titled as Mehar Chand Azad vs. Sh. Roshan Lal. The present respondent Mehar Chand Azad, filed a Claim Petition No.166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), claiming compensation for a sum of Rs.10 lacs on account of injury and permanent disability suffered in an accident on 15.1.2000. Tractor No. HP-22-9756 being driven by Shri Naresh Kumar in a rash and negligent manner, owned by the present appellant Shri Roshan Lal and insured with the New India Assurance Company (hereinafter referred to as the Insurance Company) met with an accident in which not only the claimant sustained injuries but the driver also died. Based on the pleadings of the parties, the Tribunal, framed the following issues:- “1. Whether the petitioner suffered injuries on his person in the accident of tractor No. HP-22-9756 allegedly occurred due to rash and negligent driving on the part of the deceased Naresh Kumar, as alleged? OPP. 2. If issue No.1 is read affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP. 3. Whether it is the deceased Naresh Kumar, who was driving the tractor unauthorisedly without the consent and permission of the owner and driver of the tractor, if so, to what effect? OPR-1. 4. Whether the tractor involved in the accident was being driven by a person having no valid and effective licence, if so, to what effect? OPR-2. 5. Relief.” 3 Appreciating the material on record, the Tribunal held that the vehicle in question was being driven by Shri Naresh Kumar in a rash and negligent manner and the claimant sustained injuries in the accident. It found that Shri Suman Kumar, engaged as a driver by the owner had left the vehicle for repairs in the workshop at Pakka Bhro. Shri Naresh Kumar with the implied and tacit consent of the owner had driven the vehicle, as such, the Insurance Company was not liable to indemnify the owner for the reason that the deceased was not holding a valid and effective driving licence and the terms of the policy stood breached by the Insurer. On Issue No. 2, taking into account the evidence with regard to the expenditure incurred for medical treatment, permanent disability marring the future prospects and also the pain and suffering, the Tribunal awarded Rs.2,99,405/- as compensation to the claimant. The Insurance Company as also the claimants have not challenged the award as no appeal or cross-objections have been filed by them. I have heard the learned counsel for the parties and perused the record. From the statement of Shri Roshan Lal (RW-1), it is evident that he had engaged Shri Suman Kumar as driver, who on 15.1.2000 had left the vehicle in question for repairs in the workshop of Shri Pawan Kumar, Mechanic. At about 7 O’clock in the evening he learnt that the vehicle had met with an accident in which Shri Naresh Kumar had died. He categorically deposed that Shri Naresh Kumar was never employed by him either as a driver or as a labourer. Importantly, there is no cross- examination on this point. 4 His statement stands corroborated by Shri Suman Kumar (RW-2), according to whom he had left the vehicle as also the key in the workshop for repair and had duly informed RW-1 about the same. Importantly, there is no cross-examination on this point at all. Shri Pawan Kumar (RW-3), Mechanic has categorically deposed that on 15.1.2000, RW-2 had left the vehicle in question with him for repair. While he was repairing other vehicles in his workshop, he saw one boy drive away the Tractor in great speed. Soon thereafter, the vehicle met with an accident in which the boy died. Even this witness has not been cross-examined on this point. It is matter of record, as proved by the claimant’s witnesses that Shri Naresh Kumar was the person who had driven the vehicle from the workshop and after injuring the claimant collided with the tree and died in the accident. There is nothing on record to show that the owner had ever permitted/ authorized the deceased to drive the vehicle. In fact he could not have done so as the deceased was just about 16 years at that time. From the record, it is evident that at the time of accident, it was Shri Naresh Kumar, who was driving the vehicle and had no authority to drive the same. In this view of the matter, the findings returned by the Tribunal are not borne out from the record and required to be set aside. In Guru Govekar vs. Filomena F..Lobo and others, 1988 (3) SCC 1, the Apex Court has held that where the vehicle is handed over for repair and the work of repair is being carried out, if on account of negligence of either the repairer or his employee, who is engaged in connection with repair, a third party dies or suffers any injury either to his person or property, the insurer becomes liable to pay the compensation 5 under the provisions of the Act. The decision of the Apex Court in Guru Govekar (supra) has subsequently been followed with approval in National Insurance Co. Ltd. vs. Deepa Devi and others, (2008) 1 SCC 414. In the present case, the vehicle in question had been handed over to the repairer for repair. It has not been proved that the vehicle in question was removed by Shri Naresh Kumar with the implied, tacit or active consent of the owner. The finding of the Tribunal that Shri Naresh Kumar was in the employment of the owner is not borne out from the material on record in this case. For the aforesaid reasons, the present appeal is allowed and the findings on Issues No. 3 and 4 are reversed. The vehicle being insured, it would be the Insurer, who has to indemnify and pay the amount to the claimant as awarded by the Tribunal as there is nothing on record to prove that the terms of the policy stood breached by the Insured. Ordered accordingly. 1st October, 2008 (Sanjay Karol), (C) Judge.