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2005 DIGILAW 1189 (PNJ)

Chander Kala v. Lachhman Singh

2005-11-16

ASHUTOSH MOHUNTA

body2005
Judgment Ashutosh Mohunta, J. 1. Smt. Chander Kala, mother of the deceased Bal Kishan and Pahlad Singh, father of the deceased, have filed the present appeal against the judgment of the Motor Accident Claims Tribunal, Hisar, dated 27.5.1998 by which their claim petition was dismissed and no compensation was awarded on account of death of Bal Kishan. 2. Briefly the facts of the case are that on 5.6.1995 at about 9.00 A.M. Bal Kishan along with his friend Sanjay Kumar was coming to this shop on Barwala road on his scooter No. HRT-5436 and when he reached near the petrol pump of Mirzapur bye-pass, his scooter developed some mechanical defect and as a result of which he stopped the scooter. The deceased started pulling his scooter alongside the road. Sanjay Kumar was walking on the side. When they reached near the gate of Engineering College at Hisar-Barwala road, a Tata 407 bearing registration No. HR-14-2929 came from the back side at a very high speed and struck against Bal Kishan from behind. Bal Kishan sustained serious injuries. He was removed to the Civil Hospital, Hisar, but he succumbed to his injuries. 3. The claimants who are the aged parents of the deceased Bal Kishan filed a claim petition wherein it was averred that the deceased was earning Rs. 4,000/- per month and that they were fully dependent on the deceased. It was further averred that the deceased was doing the work of a Scooter Mechanic and was in very good health. They claimed a total compensation of Rs. 20 lacs on account of death of Bal Kishan. 4. Lachhman Singh, respondent No. 1, filed his written statement denying that the accident ever took place. The entire story as put forward by the claimants was denied. The same stand was also taken by respondent No. 2 who is owner of the offending vehicle. The Insurance Company although admitted that the vehicle was insured with them, however, it was submitted on behalf of the Insurance Company that the driver of the offending vehicle did not possess a valid driving licence and, hence, the Insurance Company is not liable. 5. The Insurance Company although admitted that the vehicle was insured with them, however, it was submitted on behalf of the Insurance Company that the driver of the offending vehicle did not possess a valid driving licence and, hence, the Insurance Company is not liable. 5. The Tribunal decided issue No. l and held that the claimants have failed to prove that Bal Kishan died due to the rash and negligent driving of the offending truck as Sanjay Kumar, who was an eye-witness to the accident and was walking along with Bal Kishan on the Kacha road, did not give the number of the offending vehicle in the F.I.R. lodged by him. The Tribunal also found that the driver of the offending vehicle did not possess a valid licence. On these grounds, the entire claim petition filed by the claimants was dismissed. 6. Mr. Jaswant Jain, counsel for the claimants, has very vehemently contended that Sanjay Kumar, while appearing as PW-2 has clearly stated that "when we reached near the gate of Engineering College, a Tata 407 bearing registration No. HR-14-2929 came from the back side in very high speed and struck against the scooter which was being driven by Bal Kishan. The vehicle also struck against Bal Kishan. Bal Kishan received injuries in this accident and I brought him to Civil Hospital, Hisar. He succumbed to the injuries in Civil Hospital, Hisar. Police recorded my statement Bal Kishan was scooter mechanic. He was running his own shop in Auto Market, Hisar. At the time of accident the vehicle was being driven by Lachhman Singh. 7. On the basis of the above, learned Counsel submits that once the eye-witness has deposed in Court about the registration number of the truck then the Courts ought to have believed his statement specially when there was no evidence to the contrary. Learned Counsel submits that this witness had although lodged the FIR but being a young boy was prelexed due to the fact that his friend has died in a very gruesome manner and, therefore, may not have given the number of the offending vehicle at the time of lodging the FIR. Apart from the above, learned Counsel has further submitted that normally the drivers do not disclose their names and correct addresses when they meet with an accident. 8. Apart from the above, learned Counsel has further submitted that normally the drivers do not disclose their names and correct addresses when they meet with an accident. 8. A perusal of the statement of PW-2 Sanjay Kumar clearly shows that he has stated that a Tata 407 vehicle bearing registration No. HR-14-2929 had struck against the deceased Bal Kishan. This statement has gone unrebutted and, hence, there was nothing on record to show that the presence of this witness is unnatural or that he has given a false statement. 9. In view of the above, I set aside the findings of the Tribunal on issue No. 1 and hold that the deceased Bal Kishan was hit by a Tata 407 truck bearing registration No. HR-14-2929 and that Bal Kishan had died as a result of the injuries suffered by him from the aforementioned vehicle. As the deceased was hit from behind, therefore, it is also held that the driver of the offending vehicle was driving the truck in a rash and negligent manner and hence, issue No. 1 is decided in favour of the claimants and against the respondents. 10. Mr. Jain has next contended that Lachhman Singh who was driving the offending vehicle was issued a driving licence by the Licensing Authority, Gauhati and to verify whether the licence had been issued or not, a Local Commissioner was appointed who stated that the Licensing Authority at Gauhati did issue the licence which bears No. L/14705 dated 26.11.1989. This licence was also renewed by the Licensing Authority, Karnal. It is, thus, submitted that the owner of the offending vehicle had taken adequate precautions before employing the driver and, hence, the Insurance Company cannot be absolved of its liability to indemnify the insured. 11. A perusal of the above clearly shows that the driving licence was issued to Lachhman Singh, driver of the offending vehicle, by the Regional Transport Authority, Gauhati and the same was also renewed by the Licensing Authority at Karnal. Thus, the driver of the offending vehicle had taken adequate precautions before employing the driver. 12. In National Insurance Co. Ltd. v. Swaran Singh and Ors. Thus, the driver of the offending vehicle had taken adequate precautions before employing the driver. 12. In National Insurance Co. Ltd. v. Swaran Singh and Ors. , it has been held as under: (iii) The breach of policy condition e.g. Disqualification of the driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualifications of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. 13. In view of the above, the findings of the Tribunal on issue No. 2-A are also reversed and it is held that the Insurance Company is liable to indemnify the insured. 14. Now the only question left is - What compensation should be awarded to the claimants? 15. The Tribunal has not given any findings on issue No. 2 as to what should be the compensation that the claimants are entitled to receive. In this view of the matter, it would be appropriate if the case is remitted back to the Motor Accident Claims Tribunal, Hisar, to give a finding with regard to issue No. 2. 16. In view of the above, I reverse the findings of the Tribunal on issue Nos. 1 and 2-A and hold that the death of Bal Kishan took place due to the rash and negligent driving of the offending vehicle i.e. Tata 407 bearing registration No. HR-14-2929 which was being driven by Lachhman Singh, driver of the offending vehicle, I further hold that the Insurance Company would be liable to indemnify the insured. However, the case is remitted back to the Motor Accident Claims Tribunal, Hisar, to decide the question of quantum of compensation to be awarded to the claimants/appellants. The parties shall appear before the Motor Accident Claim Tribunal, Hisar, on 16.12.2005. However, the case is remitted back to the Motor Accident Claims Tribunal, Hisar, to decide the question of quantum of compensation to be awarded to the claimants/appellants. The parties shall appear before the Motor Accident Claim Tribunal, Hisar, on 16.12.2005. As more than 10 years have elapsed since the time the accident took place, therefore, the Tribunal is directed to decide the claim petition within three months from the date of receipt of a certified copy of this order. The appeal is allowed in the aforementioned terms.