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2011 DIGILAW 2255 (HP)

Oriental Insurance Company Ltd. v. Khiramani

2011-06-23

DEEPAK GUPTA

body2011
JUDGMENT: Deepak Gupta, J. This appeal by the Insurance Company is directed against the award dated 10.06.2009 passed by the learned Motor Accident Claims Tribunal (1), Mandi whereby he awarded yes. compensation of Rs.5,33,400/- along with interest to the claimants. 2. The allegations made in the petition were that on 6th March, 2006 JCB No. HP-32-1654 was working for construction of Jawalgalu to Tikkar road. This JCB machine was owned by Surender Sharma and driven by Sunder Lal. According to the claimants the JCB had been hired by the Gram Panchayat for construction of the road. The Gram Panchayat and its Pradhan were impleaded as respondents No. 4 and 5. The case of the claimants was that while the JCB was operating due to rash and negligent driving of the driver of the JCB the deceased Pushap Ram was hit by the JCB. He sustained multiple injuries and was taken to the hospital in a jeep. Unfortunately, on the way Pushap Ram expired and on this basis compensation was claimed. The stand of respondents No. 1 and 2 was that no accident took place and the JCB was stationary. The stand of respondent No.3 was similar to that of respondents 1 and 2. Respondent No.3 Insurance Company also took permission of the Court under Section 170 of the Act to contest the claim on all grounds. After trial, the learned Tribunal awarded compensation. Hence, the present appeal. 3. The main grounds raised by the Insurance Company are that no motor vehicle accident took place and that Pushap Ram did not receive any injury in a motor vehicle accident. In this behalf, Shri Ashwani Sharma, learned counsel for the Insurance Company, has drawn my attention to the statement of the witnesses and submits that the statements of PW-2 Inder Singh and PW-5 Tej Singh cannot be relied upon in view of the contemporaneous evidence i.e. Rapat Rojnamcha recorded by the Patwari Ext.RW-1/A, in which it is mentioned that the deceased suffered injuries when a stone fell on him. He also contends that F.I.R. was recorded on 30th March, 2006, i.e. 24 days after the accident and it is obvious that a false case was lodged. He, therefore, submits that there is nothing on record to show that any motor vehicle accident took place. 4. He also contends that F.I.R. was recorded on 30th March, 2006, i.e. 24 days after the accident and it is obvious that a false case was lodged. He, therefore, submits that there is nothing on record to show that any motor vehicle accident took place. 4. It is also contended by Shri Ashwani Sharma, Advocate, that the driver did not have a valid driving license entitling him to drive the JCB machine in question. He also contends that the compensation granted is excessive. 5. On the other hand learned counsel for the claimants Shri Naveen Bhardwaj, Advocate, submits that the quantum is on the lower side. According to him the evidence on record is sufficient to show that the accident took place with the vehicle in question. Mr. M.C.Verma, learned counsel for the owner has supported the arguments of Shri Ashwani Sharma, learned counsel for the Insurance Company, in so far as the accident is concerned but according to him the driver had a valid driving license to drive the vehicle. 6. The driver of the vehicle appeared as RW-2. According to him he had taken the vehicle to the site about two days prior to the incident and his version is that a mechanical fault developed in the JCB and it could not be operated thereafter. Therefore, his version is that the JCB was standstill. The statement of this witness is full of falsehoods. No reliance can be placed on the statement of this witness. When a suggestion was put to him that this JCB had been engaged for carrying out work of construction for road, he denied the same and stated that in fact the JCB had been hired by the husband of the Pradhan of the Panchayat. He goes on to say that he was not even aware what work was to be conducted at the site. Here is a person who is the operator/driver of the JCB, drives the JCB from Chail-Chowk to Parwara, which is 45 kilometers away and would have the court believe that he was not aware what work was to be carried out. His statement also cannot be relied upon because in his statement he does not even know who repaired the JCB, when was it brought back to Chail Chowk or where it was kept at the place and some work was done. His statement also cannot be relied upon because in his statement he does not even know who repaired the JCB, when was it brought back to Chail Chowk or where it was kept at the place and some work was done. According to him he did not carry out the work of construction of any road. He is still working as a driver and says that he drives this JCB and not the other JCB owned by his owner. If that be true, then his entire statement that he does not know who got the JCB repaired and who brought it back and what work was done at the site is totally false. 7. The most important issue is how Pushap Ram received injuries. The two important witnesses in this behalf are PW-2 and PW-5. PW2 Inder Singh states that he was working on the construction of the road which was being got done by Gram Panchayat. 10-12 other persons were present at the spot and the rear portion of the JCB (Loader) was swerved by the driver Sunder Lal and this hit Pushap Ram and thereby Pushap Ram suffered injury. Pushap Ram was immediately shifted in a jeep towards Mandi but expired on the way and was brought back. In cross-examination the suggestion put to him on behalf of the respondents No.1 and 2 was that the deceased had died by falling down the hill side. As far as the Insurance Company is concerned, the suggestion put was that the deceased received the injuries when a stone fell on him. On behalf of the Insurance Company another suggestion put to this witness is that the JCB worked only on 9th and 10th March, 2011 and not on any other day. PW-5 Tej Singh also states that he was working on the road and when the driver of the JCB negligently operated the same the sup of the JCB hit the deceased. He also stated that the deceased was taken towards Mandi in a Jeep but on the way he died and thereafter they brought him back to the village and on the next day last rites of the deceased was performed. Again the suggestion put to the witness on behalf of the owner and driver is that the deceased sustained injuries by falling down the hill side. Again the suggestion put to the witness on behalf of the owner and driver is that the deceased sustained injuries by falling down the hill side. There is virtually no cross-examination to this witness by respondent No.3 on the aspect of the accident. Respondent No.3 did not put any suggestion to this witness that the deceased suffered injuries due to a stone felling on him. 8. Shri Ashwani Sharma, Advocate, mainly relied upon the Rapat Rojnamcha Ext.RW-1/A proved by RW-1. No doubt, this is an extract of an official record, which is purported to have been recorded on 7th March, 2006 one day after the accident. In this report it is recorded that the deceased received injuries when a stone fall on him. The author of this report has not been produced or examined in Court. It is not even clear that on whose information the Patwari recorded the Rapat. These were the facts which should have been proved by the Insurance Company especially when it had taken permission to contest the claim on all grounds under Section 170 of the Motor Vehicles Act. No reliance whatsoever can be placed on this Rapat Rojnamcha. 9. There is no doubt that the F.I.R. in question was recorded after 24 days and no post mortem of the deceased was carried out. In such a case the burden may be slightly higher on the claimants to prove their case which according to me has been discharged by examining PW-2 and PW-5. Even otherwise, mere non recording of an F.I.R is not a sufficient reason to disbelieve the testimony of the witnesses. One cannot also loose sight of the fact that this accident took place in remote rural area where people are not aware of the niceties of law. When the family members lost their sole bread earner, they would be more worried about their future then in getting a report lodged or in getting the post mortem performed. The mere fact that post mortem was not performed or F.I.R was lodged after 24 days is not sufficient to hold that the accident did not take place especially when two witnesses have been examined in this behalf. 10. The mere fact that post mortem was not performed or F.I.R was lodged after 24 days is not sufficient to hold that the accident did not take place especially when two witnesses have been examined in this behalf. 10. As far as the issue of license is concerned, the main contention of Shri Ashwani Sharma, Advocate, is that since the unladen weight of the JCB was more than 6000 k.g. and less than 12,000 k.g. which fall in the category of medium goods vehicle and there was no endorsement in the driving license of the driver to drive a medium goods vehicle. The driving license of the driver carried an endorsement permitting him to drive LMV(NT) and heavy goods vehicle. Once there is endorsement for heavy goods vehicle the non transport endorsement obviously becomes invalid because a heavy goods vehicle by its very description is a transport vehicle. After the amendment was carried out in the Motor Vehicles Act, 1988 there is no license required for heavy goods vehicle, medium goods vehicle, etc. and there is only one category known as transport vehicle. Since the driver had a license for a heavy goods vehicle, which is a transport vehicle, this license would be valid for all transport vehicles. 11. Coming to the quantum of compensation, the deceased was aged about 26 years. He left behind a young widow, a mother and one minor daughter. The learned trial Court assessed his income at Rs.600/- per month deducted 1/3rd for the personal expenses of the deceased and applying a multiplier of 18, awarded compensation of Rs.5,33,400/-. In my view the compensation is just and reasonable. Therefore, I find that no interference is called for as far as the quantum is concerned. 12. Shri Naveen Bhardwaj, Advocate, has also challenged the apportionment. There is a dispute between the widow and parents of the deceased. The total award has been apportioned by the learned tribunal in the following terms:- Total Compensation: Rs.5,33,400/- Petitioner No.1(Widow): Rs. 3,33,400.00 Petitioner No.2(minor child):Rs. 1,25,000.00 Petitioner No.3(mother): Rs. 75,000.00 13. Shri Naveen Bhardwaj, Advocate, contends that widow has remarried and, therefore, she should be given lesser amount. The father of the deceased is also alive and the mother cannot be said to be solely dependent on the father. 3,33,400.00 Petitioner No.2(minor child):Rs. 1,25,000.00 Petitioner No.3(mother): Rs. 75,000.00 13. Shri Naveen Bhardwaj, Advocate, contends that widow has remarried and, therefore, she should be given lesser amount. The father of the deceased is also alive and the mother cannot be said to be solely dependent on the father. Remarriage by itself is not a ground to reduce the compensation of the widow but in my view the learned Tribunal has not awarded the compensation in a proper manner. No doubt, the widow was young but the minor child was only three years old at that time. Her share should have been more. Therefore, the amount is reapportioned as follows:-Widow: Rs.2,58,400/- Minor Child Rs.2,00,000/- Mother: Rs.75,000/- 14. As far as the amount falling to the share of the minor is concerned, the same shall be kept in a fixed deposit till she attains the majority. It is not disputed that she is living with her grand parents. Therefore, the interest accruing on the amount shall be paid on quarterly basis to the grand father Shri Durga Dass, who shall utilize this amount only for the maintenance and upkeep of the minor. As far as the amount of Rs.75,000/-falling to the share of Smt.Leela Devi is concerned, the same may be released to her by remitting the same to her bank account. Out of the amount falling to the share of widow, a sum of Rs.1,50,000/- shall be kept in fixed deposit and the balance be released to her by remitting the same to her bank account details whereof shall be furnished within three weeks from today. 15. In view of the above discussion, both the appeals are disposed of. No costs.