UNITED INDIA INSURANCE CO LTD Vs. SAVITA TYAGI

JUDGEMENT

(1.) BY way of the present appeal, the appellant has sought to challenge the award dated 5. 5. 2007 , whereby the appellant has been made liable to pay to the extent of 50% and satisfy the award along with the insurer of the other offending vehicle i. e. , Oriental Insurance Co. Ltd.

(2.) BRIEF facts to deal with the contentions raised by the parties are as under: on 19. 5. 2003 at 1. 15 A. M. , a tempo bearing registration no. HR 38-D-5688 was in motion, suddenly another Tempo bearing registration no. DL1l-E-3807 applied the brakes without any indication and as a result of which Tempo bearing registration no. HR38-D-5688 collided with the said Tempo due to which the deceased Deepak who was employed as a cleaner in Tempo bearing registration no. HR 38-D-5688 received fatal injuries and died on the spot. I have heard counsel for the parties and have perused the record.

(3.) MR. K. Venkatraman, counsel for the appellant contends that as per the evidence on record, it was sufficiently proved that the vehicle which was insured with the appellant insurance company was not being driven in rash and negligent manner and therefore, no liability can be fastened on the insurer of the vehicle bearing registration no. DL1l-E-3807 by the Tribunal. In support of his argument counsel for the appellant has invited my attention to the deposition of ASI Shri Jagga Nath Prasad who in his cross-examination categorically stated that the Tempo bearing registration no. DL-1le-3807 did not commit any mistake at the time of the accident as the said vehicle was hit from the back side by the other tempo bearing registration no. HR-38d-5688 which was insured with respondent no. 3. Counsel for the appellant has also invited my attention to the deposition of Shri Raju, driver of the vehicle insured with the appellant, where he categorically stated that there was no negligence on his part in causing the said accident. Counsel thus contends that the appellant cannot be made liable to pay any amount towards the compensation. In the alternative, counsel for the appellant also sought to urge that if the negligence on the part of the driver of the vehicle insured with the appellant is taken to have been proved, then at least the appellant is entitled to recovery rights against the owner insured. In support of his contention counsel for the appellant has placed reliance on the deposition of mr. Raju who in his testimony has clearly stated that he was competent to drive LMV (Commercial) w. e. f. 7. 10. 2003 and LMV (Taxi) w. e. f. 13. 10. 99. Counsel for the appellant has also placed reliance on the photocopy of the driving licence which is at page 45 of the paper book to contend that perusal of the said photocopy clearly shows that said Raju, driver of the Tempo bearing registration no. DL1l-E-3807 was competent to drive LMV (Commercial) w. e. f. 7. 10. 2003 and prior to that he was only competent and authorised to drive LMV (Taxi) w. e. f. 13. 10. 99. Counsel thus urges that in view of the said deposition and copy of the driving licence at least, the recovery rights can be given to the appellant insurance company to recover the amount from the owner of the insured vehicle who has violated the terms and conditions of the policy by taking the services of the driver who was not competent to drive LMV (Commercial) on the relevant date of the accident. In support of his arguments counsel for the appellant has placed reliance on the following judgments. 1]. New India Assurance Co. Ltd. Vs. Prabhu Lal-1 (2008 ACC 54 (SC)2]. New India Assurance Co. Shimla Vs. Kamla and Ors. , ETC.- I (2001) ACC 346 (SC)3]. Oriental Insurance Co. Ltd. Vs. Sumegha Sharma and Ors.- I (2008) ACC 271 (DB)4]. Karamjit Kaur and Ors. Vs. Kulbir Singh and Ors.-2007 (4) TAC 656 (Pandh)5]. New India Assurance Co. Ltd. Vs. Hardeep Singh-2007 (4) TAC 659 (Jandk ). 6]. Punjab and Haryana High Court Vs. Surjit Kaur and Ors.-I (2008) ACC 301 7]. Arat Das and Ors. Vs. Shailendra Kumar Nayak and Ors.-2007 (4) TAC 341 (Ori.)