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2010 DIGILAW 626 (JK)

State v. Kaushalya Devi

2010-12-16

Hasnain Massodi

body2010
1. Shri Babu Ram son of Dhoni Chand resident of Ucha Pind tehsil Billawar on 16 October 1999 fell victim to a vehicular accident at Ponda Billawar. The victim, an employee of Power Development Department, was at the time of accident travelling in a departmental vehicle bearing no. JKQ 8919 driven by Shri Raj Kumar Bhatti, an employee of the department. Shri Babu Ram immediately after the accident, was shifted to Mahanpur Hospital, wherefrom he was referred to Government Medical College Hospital Jammu and finally shifted to Christian Medical College (CMC) Ludhiana. The victim after he was discharged from Ludhiana hospital on 26 October 1999 breathed his last while on way to his native village. 2. The respondents 1 to 4 after the tragic demise of Shri Babu Ram filed a petition under Section 161 Motor Vehicles Act for compensation before Motor Accident Claims Tribunal Kathua. The respondents' case was that the accident took place due to rash and negligent driving of the departmental vehicle by its driver, appellant no. 2, and that the offending vehicle having insurance cover from Oriental Insurance Company-- respondent no. 5 herein, the company was under legal obligation to pay compensation to respondents 1 to 4. Respondents 1 to 4 on the strength of averments made in the claim petition claimed an amount of Rs. 15,65,565 as compensation on account of death of Shri Babu Ram, husband of respondent no. 1 and father of respondents 2 to 4. 3. The claim petition was resisted by the appellant herein on the grounds that the accident had taken place not because of rash and negligent driving of appellant no. 2 but due to rash and negligent driving of driver of a Sumo vehicle coming from the opposite direction. Appellant no. 2, it was pleaded, in order to save pedestrians was forced to apply brakes and turn the vehicle to another side; that the vehicle rolled down resulting in serious injuries to the deceased and his death. The appellant also contended that the deceased was travelling in the offending vehicle without authorization and that as respondents 1 to 4 had received all the compensation payable under rules to a government employee, the respondents 1 to 4 had no right to ask for compensation under Motor Vehicle's Act. 4. The insurance company opposed the claim petition on the ground that the appellant no. 4. The insurance company opposed the claim petition on the ground that the appellant no. 2 at the time of the fatal accident was not holding a valid and effective driving license. It was pleaded that the deceased was travelling as gratuitous passenger in the offending vehicle at the time of accident and that the offending vehicle was not meant for carrying passengers. The company insisted that the offending vehicle at the time of accident was being plied in violation of permit and the registration certificate and thus the company was not liable to pay any compensation to respondents 1 to 4. 5. The Tribunal on perusal of the pleadings settled following issues: 1. Whether because of rash and negligent driving of truck no. JKQ 8919 by respondent no. 2 on 16.10.1999 an accident took place at place Ponda near Kotla on Basoli-Kathua road causing injuries to Babu Ram son of Dhuni Chand resident of village Ucha Pind, tehsil Billawar, district Kathua in consequence whereof said Bau Ram died on 26.10.1999 and the vehicle was owned by respondent no. 1 and was insured with respondent no. 3 OPP. 2. On proof of issue no. 1 to what amount of compensation the petitioners are entitled to said from whom? OPP 3. Whether respondent no. 3 Insurance Company is not liable to indemnify the insured for the reason that respondent no. 2 driver of vehicle was not holding a valid and effective D.L. (b) That the deceased was travelling as a gratuitous passenger in the truck. (c) That the deceased was neither a third party nor his risk was covered under the policy of insurance; (d) That vehicle was being plied in contravention of the terms and conditions of the insurance policy OPP-3 4. Relief? 6. The parties were afforded an opportunity to lead evidence in support of their respective stands. The Tribunal after going through the evidence brought on the file decided all the issues in favour respondents 1 to 4. The Tribunal held that the vehicular accident that claimed life of Babu Ram was a result of rash and negligent driving by appellant no. 2; that appellants and not the insurance company were under obligation to pay compensation to respondents 1 to 4. The Tribunal worked out the compensation to respondents 1 to 4 at Rs. 4,74,000. The Tribunal accordingly accepted the claim petition and made an award for Rs. 2; that appellants and not the insurance company were under obligation to pay compensation to respondents 1 to 4. The Tribunal worked out the compensation to respondents 1 to 4 at Rs. 4,74,000. The Tribunal accordingly accepted the claim petition and made an award for Rs. 4,74,000 in favour of respondents 1 to 4. The Tribunal also directed payment of interest on the award amount at the rate of 7 per cent per annum from the date the claim petition was filed till the award amount was paid to respondents 1 to 4. The amount of interim compensation viz. Rs 50,000 paid by the insurance company was directed to be deducted from the award amount and paid to the company. 7. The award dated 4.11.2008 passed by MACT Kathua in favour of respondents 1 to 4 and against the appellants is assailed in this Civil Ist. Miscellaneous Appeal inter alia on the grounds that the award is against law as well as facts and liable to be set aside; that the Tribunal has mis-appreciated the evidence and failed to notice that respondents 1 to 4 had failed to prove that the accident had occurred due to rash and negligent driving of appellant no. 2; that the Tribunal ought not to have placed reliance on charge sheet (challan) moreso when it had remained to be proved by the investigating officer; that the Tribunal failed to pay any attention to the categorical statement of appellant no. 2 that the accident had taken place due to a mechanical defect and not rash and negligent driving of appellant no. 2. 8. It is further pleaded that the salary certificate of the deceased not having been proved by respondents 1 to 4, it was not open to the Tribunal to place reliance on the salary certificate. The Tribunal is also said to have failed to appreciate that after the accident, one of the dependents of the deceased was appointed on compassionate grounds; that respondent no. 1 was under relevant rules getting salary drawn by her deceased husband at the time of the fatal accident and that respondent no. 1 would continue to get the salary for seven years after demise of her husband. 1 was under relevant rules getting salary drawn by her deceased husband at the time of the fatal accident and that respondent no. 1 would continue to get the salary for seven years after demise of her husband. The Tribunal, it is insisted, ought to have taken note of the benefits extended to respondents 1 to 4 after death of Shri Babu Ram while assessing the amount of compensation payable to respondents 1 to 4. It is pleaded that the deceased had of his own travelled in a vehicle meant to be used as a goods vehicle and not a passenger vehicle and that the Tribunal ought to have taken notice of this fact while making the award. 9. I have gone through the memorandum of appeal as also the impugned awarded. I have perused the Tribunal record and heard learned counsel for the parties at length. 10. A closer look on the objections filed by the appellants to the claim petition reveals that the factum of accident is admitted by the appellants. The appellants in their objections have taken stand that truck no. JKQ 8919 allotted to R&B Basoli Division, driven by appellant no. 2 while returning from Basoli after unloading the material at R&B Stores Basoli met with an accident on 16.10.1999 near Kotla and that the deceased as also two other employees of the department were travelling in the vehicle at the time of accident. The appellants have attributed the accident to a rashly and negligently driven Sumo vehicle coming from the opposite side, that according to the appellants compelled the appellant no. 2 to apply brakes and turn the steering and that the truck turned turtle and rolled down in a nearby nallah. The ground taken in the appeal that respondents 1 to 4 failed to prove accident thus pales into insignificance. This apart, all the witnesses examined by the respondents which included two residents of the village where the accident had occurred proved the accident and their testimony was not rebutted by the appellants. Appellant no. 2 on the other hand in his statement admitted that the vehicular accident claimed life of Shri Babu Ram. The fact that the offending vehicle skidded off the road and fell into a nallah when appellant no. 2 applied brakes is itself indicative of rash and negligent driving by appellant no. 2. Appellant no. 2 on the other hand in his statement admitted that the vehicular accident claimed life of Shri Babu Ram. The fact that the offending vehicle skidded off the road and fell into a nallah when appellant no. 2 applied brakes is itself indicative of rash and negligent driving by appellant no. 2. Had the offending vehicle been driven at normal speed, mere application of brakes won't have made a four-wheel vehicle to turn upside down and roll down into the nallah. Even if the version of the accident narrated/admitted by the appellants is taken to be correct, the mode and manner in which the accident took place leads to the irresistible conclusion that the offending vehicle was being driven rashly and negligently by the appellant no. 2 at the time of the accident. The Tribunal was thus right in holding the accident to have taken place due to rash and negligent driving of appellant no. 2 and decided issue no. 1 in favour of respondents 1 to 4 and against the appellant. The fact that the deceased on his own boarded a goods vehicle i.e. the offending vehicle, and thus was in a way responsible for his accidental death does not in any manner change the complexion of the case. Appellant no. 2, an employee of appellant no. 1, allowed the deceased to travel in the offending vehicle as it was not possible for the deceased to travel in the vehicle except with the permission of appellant no. 1. In the circumstances appellant no. 1 cannot wriggle out of his responsibility to pay compensation to respondents 1 to 4 for an accident that took place because of negligence of its employee-- appellant no. 2. Respondents 1 to 4 in para 21 of their application gave full details regarding the official status of the deceased, his age, monthly salary, promotional prospects as also loss suffered by respondents 1 to 4 due to accidental death of Shri Babu Ram, head of the family, on account of loss of income, loss of consortium, loss of love and affection, mental and physical torture, agony, etc. Respondents 1 to 4 in all claimed an amount of Rs. 15,55,565 as compensation from the appellants. The appellants in their objections did not controvert the aforementioned details i.e. pay, age, remaining service, etc. Respondents 1 to 4 in all claimed an amount of Rs. 15,55,565 as compensation from the appellants. The appellants in their objections did not controvert the aforementioned details i.e. pay, age, remaining service, etc. The appellants are thus taken to have admitted that the deceased at the time of his death was drawing a salary of Rs 5,508 per month, was 46 years of age and could have generated income for the family as detailed in para 21 of the petition. The appellants cannot now turn around and insist that as respondents 1 to 4 had failed to prove monthly income of the deceased, the Tribunal ought not to have worked out and fixed compensation at Rs. 4,74,000. All that the appellants in reply to para 21 of the claim petition state is that respondents 1 to 4 have been provided some benefits after accidental death of Shri Babu Ram. 11. The argument that the Tribunal ought not to have placed reliance on the outcome of investigation in case FIR no. 60/99 under Section 279, 304_A P/S Basoli does not inspire confidence. The Tribunal had certified copy of the charge sheet on the file and was thus within its powers to go through and rely on the charge sheet so as to return a finding on issue no. 1. 12. So viewed, the grounds taken up in the appeal as regards quantum of compensation are bereft of any merit. The Tribunal as a matter of fact while awarding compensation of Rs. 4,74,000 as against the claim amount of Rs. 15,55,565 has adopted a conservative approach in determining the compensation. The compensation on account of loss of income alone, having regard to the admitted position of the parties, ought to have been more than Rs. 4,74,000, leave alone the compensation payable on account of loss of consortium, mental agony and pain, etc. The Tribunal has not at any stage lost sight of the guidelines that must govern assessment of compensation on account of death in a vehicle accident under Section 166 Motor Vehicles Act. 13. For all that has been discussed above, there are no grounds made out by the appellants to overturn the findings returned by the Tribunal on the issues framed in the petition. 13. For all that has been discussed above, there are no grounds made out by the appellants to overturn the findings returned by the Tribunal on the issues framed in the petition. The amount awarded is in strict conformity with the law governing the subject and none of the grounds urged in the memo of appeal assailing the award has any substance. 14. Viewed thus, the appeal is dismissed. The award amount, unpaid and/or lying with the registry, if any, except the amount directed by the Tribunal to be kept under fixed deposit, which is to be paid in accordance with the direction of the Tribunal, be released in favour of respondents 1 to 4 in accordance with rules. 15. Decree sheet be drawn up and the record sent down.