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2010 DIGILAW 993 (RAJ)

New India Assurance Company Limited v. Raj Rani

2010-05-07

K.C.PURI

body2010
Hon'ble PURI, J.— The appellant-New India Assurance Company has directed this appeal against the award dated 24.7.2008 passed by Shri Sanjiv Jindal, learned Motor Accident Claims Tribunal, Panchkula for setting aside award. 2. Factual matrix comprising the claim petition shorn of unnecessary details is that claimants, i.e. claimant No. 1 Raj Rani being the widow and claimants No. 2 and 3 being the son and daughter respectively of the deceased Raj Kumar have averred that in the intervening night of 24/25.1.2005, deceased Raj Kumar along with companion Harnam Singh, who was sitting on the pillion of the scooter bearing registration No. HR-34-A-0063. While driving the said scooter, he was going from Pinjore to his village followed by an another scooter being driven by one Amar chand and occupied on the pillion by one Gurcharan Singh. When both the scooters reached near the Bus Stand of village Sukho Majri, at about 1.30 A.M. the offending truck bearing registration No. HR 03-9511 fully loaded with stones being driven rashly and negligently in a very high speed by its driver i.e. respondent No.1 came from the opposite direction and hit the scooter of the deceased. Due to the collision, the victim's scooter was dragged up to a considerable distance alongwith its occupant. Raj Kumar succumbed to his injuries at the spot as he was run over under the front portion of the truck, while the pillion rider of the victim's scooter namely Harnam Giri suffered considerable injuries on his person including the grievous ones. With regard to the aforesaid accident, the FIR No. 12 dated 25.1.2005 under Sections 279/304 A IPC was registered at Police Station Pinjore. The driver of the offending truck i.e. respondent no.1 on seeing the situation, fled away from the spot leaving behind the occupants of the victim scooter under his truck. 3. In this regard, the claimants further pleaded that the deceased was very laborious and was keeping a good health. Due to sudden death of the deceased, the claimants No. 1 to 3 lost the love affection of the deceased being the husband of claimant No.1 and the father of claimants No. 2 and 3 at the very early stage. At the time of his death, the deceased aged 44 years, who was employed in HMT Pinjore, had been earning Rs.11,500/- per month and was an income tax assessee. At the time of his death, the deceased aged 44 years, who was employed in HMT Pinjore, had been earning Rs.11,500/- per month and was an income tax assessee. Besides the claimant No. 1 also had to spend Rs.20,000/- on the funeral ceremonies of the deceased. In the end the claimants No. 1 to 3 prayed that an amount of Rs.18 lacs be granted to them jointly and severally along with interest @ 18% per annum from the date of filing of claim petition till the realization of the claimed amount. 4. Respondents No. 1 and 2 namely, the driver and the owner of the offending truck who had put in their appearance in the Court on 24.3.2005 through their counsel, had to be proceeded against ex parte vide order dated 11.4.2005 passed by the learned Predecessor Court, when none appeared on their behalf despite the repeated calls of the Court. The counsel for Respondents No. 1 and 2 again appearing in the court on 17.11.2005 despite having been proceeded against ex parte as referred above but since he was not ready with the written statement on the said date also, so, the learned predecessor court vide order dated 17.11.2005 only allowed him to join the proceedings on that date with the specific ruling that there was no justification for further adjourning the case for filing the written statement on behalf of respondents No. 1 and 2. 5. Respondent No. 3 i.e. the New India Assurance Company in its written statement while taking the preliminary objections with respect of locus standi, maintainability and cause of action etc., controverted all the material assertions of the claimants and contended specifically that it was not liable to pay any compensation to the claimants for the alleged death of said Raj Kumar or the injuries suffered by the claimant Harnam Giri in the alleged accident which occurred on 24.1.2005 as no such accident took place in the intervening night on 23/24.1.2005 and further that the claimants be put to strict proof thereof. The FIR No. 12 dated 25.1.2005 under Section 279, 304-A of the IPC in this connection had been falsely got lodged in the police station, Pinjore. The FIR No. 12 dated 25.1.2005 under Section 279, 304-A of the IPC in this connection had been falsely got lodged in the police station, Pinjore. The vehicle in question was being plied in violation of the provisions of Motor Vehicles Act as well as against the terms and conditions of the Insurance Policy as the respondents No. 1 and 2 did not have a proper route permit to ply the vehicle in question on the road on which the alleged accident took place. At the time of the alleged accident, the truck in question was not being driven by its driver while holding a valid and effective driving licence. Similarly, respondent No.2 was negligent in not ensuring that the driver of the vehicle was having a valid and effective driving licence on the date of the accident as required under the provisions of the Motor Vehicles Act. 6. It is further alleged that accident had taken place due to the negligence of the deceased himself while driving the scooter. It was wrong that the death of the deceased had occurred due to the head injuries sustained in the accident. It was also wrong that the claimants No. 1 and 3 had spent Rs.20,000/- on the funeral and last rites of the deceased or that the claimant No.4 had incurred Rs.50,000/- on his medical treatment as alleged. 7. The answering respondent No. 3 also took up the additional pleas, inter alia that if in case it was proved that the alleged accident had occurred due to contributory negligence of both i.e. the deceased and the driver of the truck, in that case, the compensation to be awarded, be reduced and proportionally divided as per the respective negligence of the deceased and the respondent No.1. The answering respondent no.3 while denying all the other averments as made by the claimants. In the end prayed that since it was not liable to pay any compensation or any other relief to the claimants, so, the claim petitions of the claimants be dismissed in the interest of justice. 8. The answering respondent No.4 who was impleaded as respondent No.4 pursuant to his application alleging therein that he was the registered owner of the truck in question, vide order dated 9.2.2007. 8. The answering respondent No.4 who was impleaded as respondent No.4 pursuant to his application alleging therein that he was the registered owner of the truck in question, vide order dated 9.2.2007. In his separate written statement, while taking the preliminary objections with respect of maintainability and the claimants having not come to the court with clean hands etc. also controverted all the material assertions of the claimants for want of knowledge with the plea that the claimants be put to strict proof thereof. The answering respondent no.4 also stated that no accident took place due to rash and negligent driving of the respondent No.1 and that the police of police station Pinjore had registered the false case against the respondent at the instance of the claimants. On the contrary, the alleged accident had occurred due to the negligence of the scooter driver. In fact at the time of the accident, the respondent No.1 had been driving his truck in a very moderate and normal speed on the correct left hand side of the road in compliance with all the traffic rules and regulations. The licence of respondent no.1 was also a genuine one and respondent No.1 as a driver had been engaged after proper verification of his licence. As such, the claimants were not entitled to any claim from respondent no.4. In the end, respondent no.4 prayed that the petitions of the claimants be dismissed with costs. 9. On the pleadings of the parties, following issues were settled on 13.11.2005:- 1. Whether the accident in question had taken place on account of rash and negligent driving of truck bearing registration No. HR 03 9511? OPP. 2. If issue No. 1 is proved, whether the petitioners are entitled to compensation, if so to what amount and from whom? OPP. 3. Whether driver of the truck was not holding a valid and effective driving licence on the date of accident, if so, to what effect? OPR-3 4. Relief. 10. The parties have led their respective evidence on the aforesaid issues. 11. The Tribunal, after appraisal of the evidence and after hearing learned counsel for the parties, awarded Rs.14,21,500/- as compensation to the claimants No.1 to 3 and addition thereto Rs.5,000/- to the claimant No.1 being the spouse of the deceased along with interest @ 9% per annum from the date of petition till its realization. 11. The Tribunal, after appraisal of the evidence and after hearing learned counsel for the parties, awarded Rs.14,21,500/- as compensation to the claimants No.1 to 3 and addition thereto Rs.5,000/- to the claimant No.1 being the spouse of the deceased along with interest @ 9% per annum from the date of petition till its realization. The respondents were held jointly and severally liable to pay the amount. Rs.50,000/- were also awarded to claimant Harnam Giri along with interest @ 9% p.a. From the date of filing the petition till the realization of the entire awarded amount. 12. Dissatisfied with the Award dated 24.7.2008 passed by Motor Accident Claims Tribunal, Panchkula appellant- New India Assurance Company Limited has preferred the instant appeal. 13. I have heard the learned counsel for the parties and have gone thorough the records of the case. 14. Learned counsel for the appellant has submitted that there was no valid route permit in respect of the offending vehicle. The route permit expired in August 2004 and was renewed in the month of December 2005. The accident has taken place in the month of January 2005. Since there was no valid route permit in the month of January 2005 and as such, Insurance Company cannot be held liable to pay the amount of compensation. 15. I have carefully considered the said submission and have gone through the records of the case. 16. Ex.R-2, is the copy of the route permit in respect of offending vehicle. It is mentioned on it that it expires on 6.8.2004. Thereafter, there is an endorsement that the same has been renewed upto 25.4.2010. The period of the route permit is from 17.8.1999 to 25.4.2010. Section 81(5) of the Motor Vehicles Act lays down that where a route permit has been renewed after the expiry of the period thereof, such renewal shall have effect from the date of such expiry, irrespective of whether or not a temporary permit has been granted under clause (d) of Section 87 of the Motor Vehicles Act and where a temporary permit has been granted, the fee paid in respect of such temporary permit shall be refused. So, it cannot be said that there is a valid route permit at the time of accident. 17. Learned counsel for the appellant has further submitted that the finding of the Tribunal on issue No.3 are wrong. So, it cannot be said that there is a valid route permit at the time of accident. 17. Learned counsel for the appellant has further submitted that the finding of the Tribunal on issue No.3 are wrong. Dhillu Ram was not holding a valid driving licence. The appellant company in order to prove this issue examined Local Commissioner K.S.Arya, Advocate, who had gone to Bekhnehi, Assam and recorded the statement of Abdul Matin, Junior Assistant of the office of District Transport Officer, Kampru. On the testimony of the said witness, it is revealed that no licence in the name of Dhillu Ram was issued, which is Ex.R-3. As per the testimony of Abdul Matin, only one driving licence has been issued in the name of Dhillu Ram vide No.22765-K on 17.10.1981 which was valid upto to 18.10.1994 to drive the heavy motor vehicle. Except that no other driving licence has been issued. So, the driving licence Ex.R-1 is a forged document. No reliance can be placed on driving licence Ex. R-3, the same has been produced by the owner of the vehicle and not by the driver. To rebut document Ex.R-3, no opportunity was given to the Insurance Company. Therefore, it is contended that learned Tribunal has wrongly relied upon the document Ex.R-3. 18. I have carefully considered the said submission and have gone through the records of the case. 19. Ram Sarup owner of the vehicle has appeared as his own witness and has produced the copy of the licence. The copy of the licence could be in possession of the owner. There is nothing on the file that Ex.R-3, the copy of the licence is the result of forgery or fake document. The onus to prove that Ex.R-3 is a fake document is on the Insurance Company. The Insurance Company has failed to discharge the onus. Mere fact that Ex.R-1 is not a genuine document does not invalidate Ex.R-3. In authority National Insurance Co. Ltd. vs. Swaran Singh 2004 Accidents Claims Journal reported at page 1 = RLW 2004(2) SC 161, it has been held that besides proving that the licence is fake one, the Insurance Company has also to prove the fact that owner has the knowledge that the same is fake one. In authority National Insurance Co. Ltd. vs. Swaran Singh 2004 Accidents Claims Journal reported at page 1 = RLW 2004(2) SC 161, it has been held that besides proving that the licence is fake one, the Insurance Company has also to prove the fact that owner has the knowledge that the same is fake one. Ram Sarup, owner has appeared as his own witness and has stated that he relied upon a representation of the respondent No.1 that he is possessing a valid driving licence. The same has been produced on the file as Ex.R-3. So, in these circumstances, the finding on issue No.3 also does not call for any interference. 20. The other question raised by the learned counsel for the appellant is regarding negligence of respondent No.1 and regarding quantum of compensation. However, the learned counsel for the appe-llant could not point out whether permission under Section 170 of the Act has been granted to the Insurance Company. So, in the absence of such permission the factum of accident and quantum of compensation cannot be challenged by the Insurance Company. Otherwise on reappraisal of the evidence, it is proved on the file that accident has taken place due to rash and negligence driving of offending vehicle by respondent No.1. The deceased was an employee and the income has been assessed in accordance with his salary record and the multiplier is also not excessive. So, in view of the above discussion, the appeal is without any merit and the same stands dismissed. 21. A copy of this judgment be sent to the trial Court for strict compliance.