Dismissed

(O&M) New India Assurance Co. Ltd. and Another v. Pushap Raj and Others

Punjab & Haryana HC23 Aug 2010FAO/1368/1993

Case brief

AI extract

What is this about?

The High Court corrected procedural defects by transposing the insurer from appellant to respondent in a compensation appeal. It affirmed the Tribunal's finding that a tyre burst due to poor upkeep constitutes negligence, making the owner and insurer liable. The Tribunal's awards were confirmed and appeals dismissed.

What did the court decide?

The appeals were dismissed; the awards of the Tribunal were confirmed; the insurer was ordered to be transposed as respondent.

(O&M) New India Assurance Co. Ltd… — Contract and Commercial Disputes | Punjab & Haryana HC (2010)

¶1

FAO No.1368 of 1993

¶2

-1-

¶3

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

¶4

FAO No.1368 of 1993 Date of Decision. 23.08.2010

¶5

Haryana Roadways, Bhiwani Depot, Bhiwani through its General Manager

¶6

......Appellant

¶7

Versus

¶8

Pushp Raj son of Sh. Hari Kishan and others ......Respondents

¶9

FAO No.1266 of 1993

¶10

Haryana Roadways, Bhiwani Depot, Bhiwani through its General Manager

¶11

......Appellant

¶12

Versus

¶13

Neelam W/o Pushp Raj and others

¶14

......Respondents

¶15

Present: None for the appellant.

¶16

Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the New India Assurance Co. Ltd.

¶17

None for the claimants-respondents.

¶18

CORAM:HON'BLE MR. JUSTICE K. KANNAN

¶19

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

¶20

To be referred to the Reporters or not ?

¶21

Whether the judgment should be reported in the Digest?

¶22

¶23

K. KANNAN J.(ORAL)

¶24

The appeal is filed by the insurer along with the insured questioning the compensation and negligence of the driver. It has been held by the Hon’ble Supreme Court in Chinnama George and

¶25

others Vs. N.K. Raju and another 2000 (4) SCC 130 that such an

¶26

appeal is not maintainable. The Hon’ble Supreme Court directed that in such cases the insurer shall be transposed as a respondent

¶27

-2-

¶28

FAO No.1368 of 1993

¶29

and the appeal could be permitted to be continued by the insured only. Accordingly, it is ordered that the insurance company is transposed as respondent No.4 and the appeal shall be taken as having been filed only by the insured. The registry is directed to carry out the amendment to the memo of parties after transposition in the manner referred to above.

¶30

The two appeals arise out of an accident on bursting of tyre of a bus in which two passengers were hurt and they had claimed compensation for injuries sustained in the accident. The negligence was attributed to the owner of the vehicle for its poor upkeep and also the negligent driving of the driver of the vehicle.

¶31

Learned counsel appearing for the Insurance Company, which is the insurer of the bus would contend that the vehicle had proceeded from Chandigarh to Rohtak and during all its transit, the tyre had not burst. On the other hand, the vehicle had been parked at the bus stand when the tyre burst. The passengers though it to be a case of bomb blast and they were running helter-skelter when in the melee, the claimants had suffered some injuries. The learned counsel would, therefore, contend that there was no negligence on the part of the driver. For a vehicle, which had run to a quite distance without any mishap but admittedly had a tyre burst, there is no rule of thumb that the upkeep must have been proper. It is not only the negligence of the driver that can give a cause of action for the claimant. If there was a poor upkeep of the tyre by the owner, that would also be a cause for a complaint of the negligence of the owner. There is a presumption of negligence. It is literally a res

¶32

FAO No.1368 of 1993 -3-

¶33

ipsa loquitur situation where the owner ought to bear the responsibility for a mishap such as bursting of tyre and the burden shall be taken as on the owner to explain that best of attention had been given to the upkeep of the vehicle and the tyre had burst in spite of such proper and regular upkeep. (Please see L akshmi Pilla Amma Vs. Geetamma (1996)1 ACC 441; Amakka Vs. Santosh Benefit Pvt. Ltd. (1981) 22 Guj LR 292; Sajjan Singh Vs. MP (1992) 2 ACC 225; G.P.S.R.T.C. Vs. Kripa Shankar Tripathi 1990 ACJ 382 ). Such evidence must have become possible by the owner giving evidence about the details of the purchase and the relevant log book of the maintenance of the tyres. This evidence was not produced by the owner. The bursting of tyre as principal cause of the accident itself could not be denied and it was irrelevant that the passengers mistook it for a bomb blast and they were running away from the place and the claimants had suffered some injuries. The bursting of tyre was the most proximate cause for the injuries suffered and it should also be seen as having resulted by the use of a motor vehicle. The claim for damages for injuries under such circumstance is perfectly tenable and the insurer shall bear the consequence for the injuries suffered by compensating them.

¶34

The Tribunal had awarded Rs.70,000/- for injuries to Neelam, the claimant in the case, which is a subject matter in FAO No.1266 of 1993 and it awarded Rs.50,000/- to Pushp Raj in the claim petition, which is a subject matter in appeal in FAO No.1368 of 1993. If the issue of liability is answered against teh insurer, then the consideration of the case for quantum shall not arise in an

¶35

FAO No.1368 of 1993

¶36

-4-

¶37

appeal filed by the insurance company. The awards of the Tribunal

¶38

are confirmed and the appeals are dismissed.

¶39

(K. KANNAN) JUDGE

¶40

August 23, 2010 Pankaj*

(O&M) New India Assurance Co. Ltd. and Another v. Pushap Raj and Others

Case brief

What is this about?

What did the court decide?

(O&M) New India Assurance Co. Ltd. and Another v. Pushap Raj and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

(O&M) United Ind. Ins. Co. Ltd. Vs Sham Singh etc.

New India Assurance Co. Ltd. Vs Harminder Kaur & Ors.

Smt. Kiran Mehra and Others Vs Shri G.S.Grewal and Others

Satbir Singh Vs Oriental Insur. Co. Ltd.

(O&M) Oriental Insurance Company Ltd. Vs Inderjit Kaur & Ors.

(O&M) National Insurance Co.Lt. Vs Sultan Singh etc.