Dismissed

Shriram General Insurance Company Limited v. Kuldeep Singh

Himachal Pradesh HC14 Aug 2023FAO/95/2016

Case brief

AI extract

What is this about?

In an appeal against an award in a motor accident claim, the High Court upheld the Motor Accident Claims Tribunal's finding that the claimant was travelling as owner of goods. The court held that the insurer failed to discharge the burden of proving that the claimant was a gratuitous passenger or that there was a breach of policy terms.

What did the court decide?

The appeal filed by the insurer is dismissed, upholding the award of Rs. 53,000/- to the claimant.

Shriram General Insurance Company Limited Vs Kuldeep Singh — Insurance | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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FAO No. : 95 of 2016 Reserved on : 07.08.2023 Decided on : 14.08.2023

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Shriram General Insurance Company Ltd. .……Appellant. Versus Kuldeep Singh and Others. ……Respondents.

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Coram

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The Hon’ble Mr. Justice Satyen Vaidya, Judge.

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Whether approved for reporting?¹ Yes

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For the appellant : Mr. Jagdish Thakur, Advocate. For the respondent : Mr. Gaurav Sharma, Advocate, for respondent No. 1.

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Satyen Vaidya, Judge

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By way of instant appeal, appellant has

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assailed award dated 20.06.2015, passed by learned Motor Accident Claims Tribunal (II), Una, District Una, H.P., in M.A.C. Petition No. 15 of 2013.

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Respondent No.1 herein (claimant) has been awarded a sum of Rs. 53,000/- as against the claimed a sum of Rs.10,00,000/-. The claimant had alleged in

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the petition that on 28.10.2012, he alongwith his

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1 Whether reporters of the local papers may be allowed to see the judgment?

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relatives was on the way to the temple of ‘Mata Chintpurni’ in vehicle No. PB-10-6170. At about 6:30 PM, the vehicle met with an accident, on account of rash and negligent driving of the driver of the vehicle, who was impleaded as respondent No. 1 in the petition and who subsequently died during the pendency of the petition. The vehicle was owned by respondent No. 3 (hereinafter referred to as the ‘Insured’) and insured had purchased the policy of insurance from the appellant ( hereinafter referred to as the ‘Insurer’).

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The claimant had stated his age to be 27 years. It was averred that the claimant was a skilled labourer. As per claimant, he received injuries as result of the accident and was treated at CHC, Gagret, District Una, H.P. in the first instance and thereafter at Sandhu Bone and Joint Hospital, Moga, Punjab, where he remained admitted from 29.10.2012 to 21.11.2012.

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Respondents No. 1 and 2 filed their reply jointly. The allegation of rash and negligence against the driver of the vehicle was specifically denied. It was stated that at the time of accident, the claimant had

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been under influence of some supernatural power and he had jumped from the running vehicle and had thus sustained injuries. It was also submitted that the claimant was a devotee of ‘Mata Chintpurni’ and he had hired the vehicle for carriage of articles/goods for the purposes of Bhandara , which the claimant intended to host in the temple.

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Insurer separately contested the claim of the claimant, on the ground that the claimant was travelling in the vehicle as a gratuitous passenger and therefore, the insurer was not liable to indemnify the insured. The vehicle involved in the accident was alleged to be a goods carriage vehicle in which the passengers could not have been carried. Breach of the terms of policy was also alleged. As per insurer, the vehicle was being driven by the driver without a valid driving license.

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The claimant filed separate rejoinders to the replies of the respondents. While filing the rejoinder to the reply of respondents No. 1 and 2, it was admitted that the claimant had hired the vehicle for

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transportation of goods/articles for Bhandara at ‘Mata Chintpurni Temple’ and claimant was travelling in the vehicle as owner of the goods.

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On the basis of pleadings of the parties,

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learned Tribunal framed the following issues:-

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1. Whether on 28.10.2012 around 6:30 PM at place near Asha Puri Temple on Gagret-Hoshiarpur road in Tehsil Amb, petitioner sustained injuries due to rash and negligent driving of ACE Tempo No.PB-10-6170 by respondent No. 1 Raj Singh? OPP.

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2. If issue No. 1 is proved in affirmative to what amount of compensation the petitioner is entitled to and from whom? OPP.

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3. Whether the petitioner has no cause of action? OPR-1& 2.

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4. Whether the petition is not maintainable ? OPR-1&2.

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5. Whether the petitioner was travelling in the vehicle as gratuitous passenger in violation of terms and conditions of insurance policy? OPR-3

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6. Whether driver/respondent No. 1 was not holding valid and effective driving license to drive the vehicle in the accident? OPR-3.

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7. Whether the vehicle in question was being plied at the time of accident in violation of terms and conditions of insurance policy? OPR-3.

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8. Relief.

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8. Issues No. 1 and 2 were decided in

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affirmative, whereas all other issues were decided in negative. The petition was, accordingly, allowed. The claimant was held entitled to compensation of Rs. 53,000/-alongwith interest @ 9% per annum from the date of filing of the petition. The liability to pay compensation was fastened upon the insurer by holding that Ext. RW1/A was the insurance policy. The claimant was held to be travelling in the vehicle as owner of the goods.

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Except the insurer, none other has

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challenged the impugned award.

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I have heard learned counsel for the parties and have also gone through the record of the case carefully.

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Mr. Jagdish Thakur, learned Counsel for the insurer contended that the liability had been wrongly fastened upon the insurer. As per him, the claimant had admitted himself to be the gratuitous passenger. Reference was made to the contents of the claim petition filed by the claimant wherein it

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was averred that the claimant alongwith his fifteen relatives was travelling to temple of ‘Mata Chintpurni’. It was also contended that the claimant and insured had colluded with each other and the story regarding carriage of goods/articles in the vehicle for Bhandara at ‘Mata Chintpurni Temple’ was an afterthought. On the other hand, learned counsel for the claimant has supported the findings and conclusions recorded by learned Tribunal and has referred to the relevant portion of the pleadings and evidence to support such findings.

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While deciding the claim petition under the Motor Vehicles Act, 1988, the Tribunal or Courts are required to decide the issues on the preponderance of evidence. It is equally trite that keeping in view the socio-economic background of the litigant in India insistence on strict rules of pleadings also cannot be made.

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It is revealed from the evidence on record that the claimant was working as Halwai (Confectioner) in ceremonies like marriage etc. There

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is nothing to suggest that the claimant was literate.

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In this background, the instructions passed on by him to his counsel while getting the claim petition drafted have to be viewed in the perspective of his socio-economic background and subsequent conduct of parties as taken into consideration hereafter.

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Respondents Nos. 1 and 2, in their reply specifically mentioned that the claimant had hired the vehicle for carriage of goods/articles for the purposes of holding Bhandara in the temple of ‘Mata Chintpurni’ and claimant was occupying the vehicle as owner of the goods. This fact was clearly admitted by the claimant in his rejoinder filed to the reply of respondents No. 1 and 2.

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The claimant appeared as his own witness (PW-2). While answering the questions in cross-examination on behalf of the respondents owner and driver, he specifically admitted the factum of carriage of goods/articles to the temple of ‘Mata Chintpurni’ for Bhandara. He also admitted that he was a devotee of ‘Mata Chintpurni’ and had intended

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to host a Bhandara there. Not only this, it was suggested to the claimant on behalf of the insurer while cross-examining him that the claimant was travelling in the vehicle involved in the accident with his articles. The claimant had admitted such

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suggestion. That being so, the insurer cannot subsequently be allowed to turn around and dispute the status of the claimant in the vehicle as owner of the goods.

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Onus to discharge the burden of proving exceptions is always on the insurer. Reference can be made to the following extract from the judgment passed by Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and others reported in (2004) 3 SCC 297:-

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“ 66. A bare perusal of the provisions of Section 149 of the Act leads to only one conclusion that usual rule is that once the assured proved that the accident is covered by the compulsory insurance clause, it is for the insurer to prove that it comes within an exception

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67. In MacGillivray on Insurance Law it is stated:

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"25-82 Burden of Proof: Difficulties may arise in connection with the burden of proving that the facts

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of any particular case fall within this exception. The usual rule is that once the assured has proved that the case comes within the general risk, it is for the insurers to prove that it comes within an exception. It has therefore been suggested in some American decisions that, where the insurers prove only that the assured exposed himself to danger and there is no evidence to show why he did so, they cannot succeed, because they have not proved that his behaviour was voluntary or that the danger was unnecessary. Since an extremely heavy burden is imposed on the insurers if they have to prove the state of mind of the assured, it has been suggested in Canadian decisions that the court should presume that the assured acted voluntarily and that, where he does an apparently dangerous and foolish act, such danger was unnecessary, until the contrary is shown. In practical terms, therefore, the onus does in fact lie on the claimant to explain the conduct of the assured where there is not apparent reason for exposing himself to an obvious danger."

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68. In Rukmani and Others vs. New India Assurance Co. Ltd. and Others [1999 ACJ 171], this Court while upholding the defences available to the insurer to the effect that vehicle in question was not being driven by a person holding a licence, held that the burden of the insurer would not be discharged when the evidence which was brought on record was that the Inspector of Police in his examination in chief merely stated, "My enquiry revealed that the respondent No.1 did not produce the licence to drive the abovesaid scooter. The respondent No.1 even after

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my demand did not submit the licence since he was not having it."

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69. The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event, the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi (supra).”

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The insurer has led no evidence to discharge

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the burden. In view of what has been discussed above, the findings and conclusions drawn by learned Tribunal, cannot be faulted. There is no illegality or perversity in the impugned award. The claimant has only been awarded a sum of Rs. 53,000/- with interest as noticed above.

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In result, I do not find any merit in the appeal and the same is, accordingly, dismissed.

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Pending miscellaneous application(s), if any. shall stand disposed of.

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Shriram General Insurance Company Limited v. Kuldeep Singh

Case brief

What is this about?

What did the court decide?

Shriram General Insurance Company Limited v. Kuldeep Singh

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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