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2012 DIGILAW 765 (HP)

Bhani Chand v. Lal chand

2012-10-30

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT Dharam Chand Chaudhary, J. Aggrieved by the award dated 18.7.2006 passed in Claim Petition registered as MAC No. 4/05/03 by Motor Accident Claims Tribunal, Fast Tract Court, Chamba, the appellant (hereinafter referred to as respondent No.1) has preferred the present appeal for quashing the same. The controversy, needs redressal in the present appeal lies in narrow compass as it has only to be determined that the findings returned by the learned Motor Accident Claims Tribunal on issue No.5 are legally and factually sustainable or not. 2. The ill fated truck bearing registration No.HP-45-0633 belongs to appellant-respondent No.1. FIR (Ext.PW-2/A) reveals that the said respondent is a contractor and respondent No.1 (hereinafter referred to as the appellant) along with other was working as Labourer with him. This document further reveals that the ill fated truck on 14.10.2001 was on its way from Killar to Ajog. It was being driven by its driver Dharam Singh. Around 6.30 A.M. when reached at a place namely Chhau Mor and was being reversed by its driver, rolled down from the road and as a result thereof, the appellant and other labourers namely Roop Lal, Lal Chand, Devi Singh, Kishan, Suresh Kumar, Bhan Singh, Roop chand, Lomi Ram, Devi Lal, Bhajan Singh etc. received injuries on their person. The accident was reported by Sh. Lomi Ram one of the occupants to the police of Police Station Pangi, Distt. Chamba. Consequently FIR (Ext.PW-2/A) was registered. 4. In the claim petition, the petitioner has claimed himself to be labourer/agriculturist by occupation. According to him, on the fateful day he was travelling in the ill fated truck. 5. In reply the insurer-respondent No.2 has raised preliminary objections that the petition is bad for non-joinder of necessary parties, the person driving the vehicle was not holding driving licence, the vehicle involved in the accident was being plied in contravention of the conditions of the insurance policy and the deceased was travelling as a gratuitous passenger. On merits, the case of the petitioner as set out in the claim petition has been denied for want of knowledge. 6. The owner of the truck-1st respondent has pleaded that the petitioner was engaged as labourer by him at the monthly wages of Rs.1500/- and that he was on duty while travelling in the truck for loading and unloading of goods. 6. The owner of the truck-1st respondent has pleaded that the petitioner was engaged as labourer by him at the monthly wages of Rs.1500/- and that he was on duty while travelling in the truck for loading and unloading of goods. The information in the claim petition qua the age and income of the petitioner has, however, been denied for want of knowledge. 7. In rejoinder to the reply of insurer-2nd respondent, the claimant-appellant has denied the contents of preliminary objections being wrong and on merits reiterated the entire case as set out in the claim petition. 8. On the basis of the pleadings, learned Tribunal below has framed as many as six issues which read as under:- 1. Whether the accident took place due to rash and negligent driving of vehicle No. HP-45-0633 by its driver in which the petitioner received injuries, as alleged? ...OPP 2. Whether the petitioner is entitled to compensation, if so, to what amount and from whom? ..OPP 3. Whether the driver of the offending vehicle was not holding and possessing a valid driving licence at the time of accident, as alleged? ..OPR-2 4. Whether the vehicle was being plied in contravention of terms of the insurance policy, as alleged? ...OPR-2 5. Whether the petitioner was a gratuitous passenger, as alleged? ....OPR-2 6. Relief. 9. After holding full trial and hearing the parties on both sides, the Tribunal below has arrived at a conclusion that the accident had occurred due to the rash and negligent driving on the part of the driver of ill fated truck and that the petitioner received injuries on his person in the accident. The petitioner was held to be travelling in the capacity of a gratuitous passenger and as such, the liability to pay the compensation amounting to `87000/-has been fastened upon appellant-respondent No.1. Issues No. 3 & 4 qua the vehicle allegedly being driven in contravention of the terms and conditions of the insurance policy, however, were not pressed by the insurer-respondent No.2. 10. The appellant-respondent No.1 seems to be aggrieved only against the findings recorded by the learned Tribunal below on issue No.5, whereby the liability to pay compensation has been fastened upon him. 11. I have analyzed the evidence consisting of oral as well as documentary available on record and also the submissions made on both sides. 10. The appellant-respondent No.1 seems to be aggrieved only against the findings recorded by the learned Tribunal below on issue No.5, whereby the liability to pay compensation has been fastened upon him. 11. I have analyzed the evidence consisting of oral as well as documentary available on record and also the submissions made on both sides. FIR (Ext.PW-2/A) is a document which contains the immediate version qua the manner in which the accident occurred and the detail of the persons including the petitioner travelling in the truck at the time of accident. This document has been tendered in evidence by the learned counsel representing the petitioner before the Tribunal below in his statement recorded separately being not objected to by either respondents. This document can thus be read in evidence and as per the same the petitioner was working as labourer with the owner of the truck and also travelling along with other labourers. The same also proves the manner in which the accident occurred. The only inescapable conclusion would thus be that the accident in which the petitioner had received injuries on his person had occurred due to rash and negligent driving on the part of the person on the wheel of the truck at the time of the accident. No doubt Sh. Dharam Singh, who was on the wheel of the truck has not been arrayed as respondent in the claim petition, however, hardly of any help to the case of the respondents as the appellant-respondent No.1 has never raised any objection to this effect before the Tribunal below whereas the insurer-2nd respondent irrespective of having raised an objection to this effect has not pressed any issue in this regard before the Tribunal below to the reasons best known to him. If coming to the second limb of arguments that the petitioner was a gratuitous passenger or not addressed on both sides, no doubt nothing has come on record which suggests that some goods were loaded in the truck or the same were to be unloaded at its destination or the truck was being taken to a destination where the goods were to be loaded, however, the fact remains that the petitioner was engaged as labourer by the insured-respondent No.1 who happens to be a contractor by profession. The insurance cover note (Ext.R-1) has been tendered by learned counsel representing the insurer-respondent No.2 in his statement. The insurance cover note (Ext.R-1) has been tendered by learned counsel representing the insurer-respondent No.2 in his statement. No evidence, however, has been produced suggesting that the labourer(s) engaged by the insurer were not authorised to travel in the truck. On the other hand the issue qua plying of truck by the insured in contravention of the insurance policy duly framed was not pressed before the Tribunal below. Such an approach leads to the only conclusion that there was no breach of terms and conditions of the insurance policy. Not only this but it has come on record that the compensation on account of damage caused to the truck in the accident stands released by the insurer to the insured-respondent No.1. Meaning thereby that there is no breach of contract of insurance between the insured and the insurer. 12. As already noted hereinabove, the petitioner has not specifically pleaded that he was travelling in the truck for loading/unloading the goods. It is, however, satisfactorily proved that he was working as labourer with the respondent No.1. Since the said respondent is a contractor, therefore, it can reasonably be believed that the truck must be used for carrying construction material etc. and the services of the petitioner were being utilized for loading unloading of such material. Above all the provisions contained under Section 166 of the Motor Vehicles Act being beneficial in nature high degree of proof is not required to establish a fact in a petition of this nature and such fact can be proved with preponderance of probabilities. The same is sufficient to discharge the onus to prove such fact. Pleadings in the claim petition reveal that the claimant is a labourer/agriculturist by profession. It is established so from the FIR Ext.PW-2/A. Respondent No. 1 is a contractor whereas the petitioner was working as labourer leads to the only conclusion that the petitioner was not travelling in the truck in question in the capacity of a gratuitous passenger and rather as labourer for loading and unloading purposes. The Tribunal below has not appreciated the evidence available on record in its right perspective while answering issue No.5 in favour of the insured-respondent No.1. The findings recorded on this issue are thus neither legally nor factually sustainable. Hence deserve to be reversed. 13. The Tribunal below has not appreciated the evidence available on record in its right perspective while answering issue No.5 in favour of the insured-respondent No.1. The findings recorded on this issue are thus neither legally nor factually sustainable. Hence deserve to be reversed. 13. In view of the appraisal of the facts and circumstances of the case as well as the evidence available on record, I set aside the findings recorded by the Tribunal below on issue No.5 and hold that the petitioner was not travelling in the capacity of a gratuitous passenger and rather labourer duly engaged by the insured-respondent No.1 for loading and unloading purposes. Consequently the liability to pay the compensation awarded to the petitioner will be that of the insurer-respondent No.2. 14. This petition succeeds and the same is accordingly allowed, however, with no order as to costs. The insurer-respondent No.2 is directed to deposit the awarded amount together with interest upto date within two months from today before the MACT below.