IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO Nos.112 of 2007, 69 of 2008 and 115 of 2008. Date of decision: 10.05.2010. 1. FAO No.112 of 2007. National Insurance Company …Appellant Versus Smt.Sanpati & Others …Respondents 2. FAO No.115 of 2008. National Insurance Company …Appellant Versus Smt.Veena Devi & Others …Respondents 3. FAO No.69 of 2008. Shri Surjeet Kumar …Appellant Versus D.M.National Insurance Company & Ors. …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. FAO No.112 of 2007. For the Appellant: Ms.Devyani Sharma, Advocate. For Respondents 1 to 3: Mr.Rajesh Verma, Advocate vice Mr.Rajinder Dogra, Advocate. For Respondent No.4: Mr.B.C. Verma, Advocate. FAO No.115 of 2008. For the Appellant: Ms.Devyani Sharma, Advocate. For Respondents-1 to 5: Ms.Kamlesh Shandil, Advocate. For Respondent-6: Ms.Rita Goswami, Advocate. FAO No.69 of 2007. For the Appellant: Ms.Rita Goswami, Advocate. For Respondent-1: Ms.Devyani Sharma, Advocate. For Respondents 2 to 6: Ms.Kamlesh Shandil, Advocate. Dev Darshan Sud,J. All these three appeals are being disposed of by a common judgment as they arise out of the same 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes 2 accident in which Shri Ram Lal and Paras Ram amongst others sustained fatal injuries. MAC petition No.21- S/2 of 2004, titled: Smt.Sanpat & Others vs. Surjit Kumar and another was instituted before the learned Motor Accident Claims Tribunal at Solan by the parents and brother of the deceased claiming compensation which was quantified by the learned Tribunal at Rs.7,40,000/- alongwith interest at the rate of 7.5% per annum from the date of award till its deposit and was awarded only in favour of the parents and MAC Petition No.27 of 2004, titled: Smt.Veena Kumari & Others vs. Shri Surjeet Kumar & Another, was instituted before the learned Motor Accident Claims Tribunal, Kinnaur Division at Rampur Bushahr by the wife and children of deceased Paras Ram who were also traveling in the same vehicle. The Tribunal awarded a sum of Rs.8,13,564/- along with interest at the rate of 9% per annum from the date of petition till the whole amount is realized. The Tribunal at Kinnaur made the amount recoverable from Surjit Kumar, owner of the accidented vehicle No.HP-27-0594. The Tribunal at Solan apportioned the liability on the respondents holding the Insurance Company liable to satisfy the award amount. The petition at Solan was instituted on 10.3.2004 and at Kinnaur on 23.4.2004. 2. Adverting to the facts as pleaded before the learned Tribunal at Solan, the claimants urged that the deceased was the sole bread earner of the family and 3 all the claimants were dependant upon him. He was a teacher who had a bright carrier/future and was likely to be promoted as a Principal of the Institution in which he was teaching. The cause of accident was claimed to be the rash and negligent driving of the vehicle on the part of the driver, which resulted in his loosing control over the vehicle which plummeted into the Satluj causing grievous injuries to the deceased Ram Lal who died on the spot. 3. The petition was resisted on a number of grounds and six issues were settled by the learned Tribunal. The first issue dealing with the question as to whether the accident took place due to the rash and negligent driving of the vehicle which was a Mahindra Utility Van bearing Registration No.HP-27-0594 in which the occupants as also the driver died on the spot. The second issue relates to the entitlement of compensation and the liability of the parties. The other issues related to the apportionment of liability are as to whether the deceased was an unauthorized passenger and that the vehicle was being driven without the required documents. 4. As there was no direct evidence with respect to the accident, the Court invoked principle of res ipsa loquitor holding that the facts speak for themselves and that the accident had occurred because of the rash and negligent act of the driver. Dealing with issue No.2, a sum of Rs.7,40,000/- along with 4 interest at the rate of 7.5% per annum from the date of the award till its payment was passed. It was urged before the learned Tribunal that the vehicle was a Utility Van which was essentially a transport vehicle and was not authorized to carry any passenger. The deceased was not the owner of the goods and was, therefore, an unauthorized passenger who could not claim any compensation. 5. RW-1/A is Registration Certificate issued by the Registering Authority at District Kinnaur certifying that the vehicle is a LMV (Utility). The Insurance Policy Ex.RW-1/C (Ex.RW-3/A before the learned Tribunal at Kinnaur) shows that the vehicle was insured as a private car. The relevant portion is reproduced hereunder:- “CERTIFICATE OF INSURANCE of Private Car Form 51 of the Central Motor Vehicles Rules 1989 … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … Limitation as to use: The Policy covers use of the Vehicle for any purpose other than a) Hire or Reward b) Carriage of Goods (other than samples or personal luggage) c) Organized racing d) pace making e) Speed Testing and Reliability Trials 5 f) Use in connection with Motor Trade.” 6. The policy coupled with the evidence on record does not prove or indicate that the accidented vehicle was a goods carriage vehicle. So far as `Limitations as to use of vehicle’ are concerned, clause-(b) of the conditions prohibits the vehicle to be used for carriage of goods. Learned counsel for the appellant-Insurance Company urges that the learned Tribunal was wrong in not considering the statements of RW-1, the owner and RW-2, the representative of the Insurance Company, which squarely brought the case of the appellant Insurance Company within the exception to meet the liability of the accident as the vehicle in question was a goods carriage vehicle. This submission cannot be accepted. The Insurance Company itself registers the vehicle as a private car and prohibits its use for carriage of goods. It is then urged that there is nothing on the record to establish that the accident attracts the principle of res-ipsa loquitor. This submission also requires to be rejected. The manner in which the accident took place, squarely attracted principle of res ipsa loquitor. 7. Adverting to the second case at Kinnaur, the Insurance Company sought to avoid its liability on the ground that the vehicle was being driven in utter violation of the mandatory conditions of the policy. Two issues namely, issues No.3 and 4 that is that the 6 driver did not possess a valid driving licence and that the terms and conditions of the policy were violated were tried by the Tribunal. On issue No.3, Tribunal adjudicates that the licence having not been produced on the record by the driver, it was established that he was not possessed of a valid driving licence and on 4th issue the Court concludes that the driver of the vehicle was in such an inebriated condition that he could not control the vehicle as a result of which the accident was caused. I do find a bit of strange that the issue with respect to the driving licence has been dealt with in this manner. 8. At Solan, when this case was tried, there is a categoric admission by the Insurance Company in the evidence of RW-2, Shri Arun Ahluwalia, who was examined on 23.9.2005, where he admits that an inquiry has been made with respect to the driving licence of the deceased driver from the Licencing Authority at Pooh and it was found that the licence was valid and in order. So far as the question regarding the fact that there has been a violation of the mandatory conditions of the Insurance Policy inasmuch as the driver was drunk is concerned, learned counsel for the Insurance Company has relied upon the statements of RW-7 Dr.B.R. Rawat, Assistant Director, State Forensic Science Laboratory, Junga and RW-8 Dr.Yogesh Diwan, who conducted the postmortem on the deceased driver Medh Ram. In his evidence RW-8, Dr.Yogesh Diwan states that 7 he has conducted the postmortem of the deceased Nima Ram, driver on 6.11.2003. He states that in this case he had preserved in one bottle the viscera, stomach intestine with their contents and in the second bottle with kidney and liver and in a small vial blood sample of the deceased driver. All these three bottles were sealed properly and handed over to the police alongwith request letter for chemical examination. According to the chemical examiner’s report Ex.RW-7/A the percentage of alcohol in blood was so high that a person would be in a near “comatose” stage and in such a situation it would be practically impossible for a person to drive. He says that this sample was given to Constable No.53, Police Station, Pooh. RW-7, Dr.B.R. Rawat, states that the alcohol contents in the blood sample analyzed by him were 326.5 mg%. The sample received by him was properly sealed and has not been tampered with. 9. Adverting to the submissions of the learned counsel for the Insurance Company, I do not find from the postmortem report Ex.RY anything about the sample being handed over to Constable No.53 of Police Station, Pooh. The evidence of RW-6 HC Mohan Joshi does not establish as to whom the bottles containing samples of viscera, stomach, intestine, liver and blood were handed over. There is no evidence as to when and where these samples were kept, to whom these were handed over and why the seals were not produced in Court. In these circumstances, I cannot accept the submission made on 8 behalf of the Insurance Company that the evidence of the doctor conclusively establishes that the driver was drunk. In his evidence, RW-7 Dr.B.R. Rawat also states that these samples were received by him on 4.12.2003 i.e. more than a month after the registration of the First Information Report. 10. In New India Assurance Company Ltd. vs. Tahira Begum and Others, 2008 ACJ 463, while dealing with the Workmen’s Compensation case, a similar defence had been taken by the Insurance Company that the person driving the vehicle was drunk and, therefore, the Insurance Company was not liable. The Court held:- “6. Strangely, appellant made no effort or attempt to establish that blood sample which was drawn was that of the deceased and that it was kept in safe custody by the police which was delivered to the Forensic Science Laboratory and during the time of its custody it has not been tampered with. Evidence on these facts is totally absent from the record. The cross-examination of RW-3, Dr.B.R. Rawat would further suggest that this witness is unsure as to whose sample was being analyzed. In these circumstances, the report Ext.RW.1/B cannot be accepted as being conclusive proof of the fact that the blood samples were in safe custody during the period from the time they were 9 drawn till the time they were given for analysis and analyzed. The identity of the persons who drew the sample, the doctor who conducted the postmortem, the person to whom such samples were handed over, the safe custody of the samples are all vital links in evidence, which the appellant has failed to bring on the record. The contention of the appellant, therefore, to this aspect cannot be accepted.” 11. From the facts of the present case, I find that mere proof of the contents of the report does not establish the safe custody of the samples the manner and method in which they were kept and their mode of sealing, mode of dispatch etc. So much so even Ex.RY belies the statement of the doctor as it is not clear as to whom the sample etc. had been handed over, the vital links in the evidence have not been established. In these circumstances, the submission made by the Insurance Company is rejected. I hold that the Insurance Company is not absolved of its liability on the ground that the driver was drunk at the time of accident and he was unfit to handle or drive any motor vehicle. 12. Looking to the manner in which the case has been conducted before the learned Tribunal, a plea of valid driving licence was urged at Kinnaur, whereas it 10 was proved before the Tribunal at Solan that the driver was possessed of valid driving licence. The plea that the driver was drunk has never been raised before the Tribunal at Solan, but was left for the Tribunal at Kinnaur to determine. This only shows the casual and lackadaisical approach to litigation. No other point has been urged in these appeals except those contentions which have been noticed by me hereinbefore. 13. In these circumstances, FAO No.112 of 2007, titled: National Insurance Company vs. Smt.Sanpati and Others, FAO No.115 of 2008, titled: National Insurance Company vs. Smt.Veena Devi and Others are dismissed and FAO No.69 of 2008, titled Surjeet Kumar vs. D.M.National Insurance Company and Others is partly accepted. I hold that it is the Insurance Company which would be liable to meet the liability arising from the accident. There shall be no order as to costs. All miscellaneous applications are disposed of. All interim orders are vacated. May 10, 2010. (Dev Darshan Sud) (aks) Judge.