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2014 DIGILAW 1357 (HP)

Ram Pyari v. New India Assurance Co. Ltd.

2014-09-26

MANSOOR AHMAD MIR

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JUDGMENT Mansoor Ahmad Mir, J. 1. By the medium of this appeal, appellants i.e. the owner and the driver, have challenged the award, dated 16.4.2007, made by the Motor Accident Claims Tribunal, Hamirpur, (hereinafter referred to as the Tribunal), in Claim Petition No. 88 of 2005, titled Amar Nath vs. Ram Pyari and others, whereby compensation to the tune of Rs. 1,52,510/- with interest at the rate of 9% per annum from the date of filing of the claim petition till its realization, was awarded in favour of the claimant and against the appellants (for short, the impugned award). 2. The owner and the driver have questioned the impugned award on the ground that the vehicle of the insured was not involved in the accident, but came to be roped in the litigation by the police without any reason. Further, the driver of the offending vehicle, namely, Ajay Kumar, had not caused any accident. Despite the said fact, the Tribunal has saddled the appellants with the liability. 3. The claimant and the insurer have not questioned the impugned award on any ground. Therefore, the same has attained finality in so far as it relates to them. BRIEF FACTS 4. Claimant Amar Nath invoked the jurisdiction of the Tribunal for grant of compensation on the ground that on 27.2.2005, at 5.00 p.m. while he was going on a scooter as pillion rider, at Bijhari Bazaar, a Jeep bearing No. HP-67-0373, being driven by Ajay Kumar, driver, (appellant No. 2 herein), rashly and negligently, hit the scooter on which the claimant was traveling, as a result of which he sustained multiple injuries. F.I.R. No. 42 of 2005, dated 27.2.2005, was registered at Police Station, Barsar under Sections 279 and 337 IPC. The Claimant was taken to CHC, Barsar, from where he was referred to PGI, Chandigarh. Thus, the claimant filed the Claim Petition for grant of compensation to the tune of Rs. 17,00,000/- as per the break-ups given in the Claim Petition. 5. The owner, the driver and the insurer resisted the Claim Petition by filing replies. 6. On the pleadings of the parties, the following issues were settled by the Tribunal:- "1. Whether the petitioner suffered injuries due to the rash and negligent driving of vehicle No. HP-67-0373 by respondent No. 2? OPP 2. 5. The owner, the driver and the insurer resisted the Claim Petition by filing replies. 6. On the pleadings of the parties, the following issues were settled by the Tribunal:- "1. Whether the petitioner suffered injuries due to the rash and negligent driving of vehicle No. HP-67-0373 by respondent No. 2? OPP 2. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP 3. Whether the vehicle in question was insured with respondent No. 3 at the time of accident? OPR-1 4. Whether the vehicle was being driven in contravention of the terms and conditions of the insurance policy? OPR-3 5. Whether the respondent No. 2 was not holding a valid and effective driving licence to drive the vehicle in question at the time of accident? OPR-3 6. Whether the petition is bad for non-joinder of necessary parties? OPR-3 7. Relief." 7. In order to prove his case, the claimant examined six witnesses, while the driver of the offending vehicle stepped into the witness box as RW-1. 8. The Tribunal after scanning the evidence held that the offending vehicle was involved in the accident and the owner had committed willful breach of the terms of the insurance policy since the driver of the offending vehicle, namely, Ajay Kumar was not having a valid driving licence and, therefore, the owner and the driver were saddled with the liability. 9. I have heard the learned counsel for the parties and have gone through the record. 10. After going through the record, I am of the considered view that the Tribunal has rightly saddled the owner and the driver, (appellants herein), with the liability for the following reasons. 11. Ext. RB is the judgment passed by the Judicial Magistrate in the criminal case resulting out of the FIR No. 42 of 2005, registered at Police Station Barsar, (supra), whereby the driver of the offending vehicle, namely, Ajay Kumar was acquitted of the charges under Sections 279, 337 and 338 IPC, but was convicted under Section 181 of the Motor Vehicles Act, (for short, the Act). 12. 12. The learned Magistrate, after discussing the evidence and documents, held that the prosecution case is shrouded in doubts and that the case is not proved beyond reasonable doubt and accordingly, acquitted Ajay Kumar for the commission of offence punishable under Sections 279, 337 and 338 IPC, but has held specifically that Ajay Kumar had driven the vehicle. It is apt to reproduce paragraphs 9 and 21 of the judgment Ext. RB, hereunder:- "9. PW-11 ASI Chhota Ram has specifically stated that it has come in his investigation that accused Ajay Kumar was driving jeep bearing No. HP-67-0373. In view of the aforesaid it has specifically been stated by PW-6 Shri Ashwani Kumar that accused Ajay Kumar was driving Jeep bearing No. HP-67-0373 on that day. Moreover there appears to be no motive for PW-6 Shri Ashwani Kumar to depose falsely against accused Ajay Kumar. In view of the aforesaid it stand proved on record that accused Ajay Kumar was driving jeep bearing No. HP-67-0373 on 27.2.2005 at Bijhar Bazar and accordingly this point is decided in favour of the prosecution and against the accused." "21. Since the independent witness namely PW-1 Anil Kumar and PW-4 Shri Rajinder Singh have not supported the prosecution version as such it cannot safely said as to on account of whose negligence the accident took place. In view of the aforesaid a shadow of doubt has been casted on the prosecution version and accordingly these points are decided in favour of the accused and against the prosecution." 13. It is worthwhile to mention here that the findings returned by the Magistrate in the criminal case has attained finality, since Ajay Kumar, driver of the offending vehicle, has not questioned the same. 14. It is beaten law of the land that the standard of proof in a criminal case is different and heavy. The prosecution has to prove its case beyond reasonable doubt. But, the standard of proof in a claim petition is that the Tribunal has to deal with the claim petitions summarily and the claimants have only to bring on record the evidence to the extent that the accident was outcome of rashness and negligence. The claimants are not required to prove their case beyond reasonable doubts but by preponderance of probability. 15. The claimants are not required to prove their case beyond reasonable doubts but by preponderance of probability. 15. The Apex Court in a case titled Dulcina Fernandes & other vs. Joaquim Xavier Cruz & another, reported in 2013 AIR SCW 6014, has held that the issue of negligence was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not on the basis of proof beyond reasonable doubt. It is apt to reproduce para 7 of the judgment herein:- "7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probability and certainly not on the basis of proof beyond reasonable doubt. [Bimla Devi & other vs. Himachal RTC (2009) 13 SCC 530 : AIR 2009 SC 2819 : 2009 AIR SCW 4298]. In United India Insurance Company Limited vs. Shila Datta & other, (2011) 10 SCC 509 : AIR 2012 SC 86 : 2011 AIR SCW 6541, while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three-judge-bench of this Court has culled out certain propositions of which propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted herein-below: "(ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal. (v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. (vi) The Tribunal is required to follow such summary procedure as it thinks fit. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal. (v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry." The following further observation available in paragraph 10 of the report would require specific note: "We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute." 16. In another case titled as N.K.V. Bros. Pvt. Ltd. vs. M. Karumani Ammal and others, reported in AIR 1980 Supreme Court 1354, a bus hit an over-hanging high tension wire resulting in 26 casualties. The driver earned acquittal in the criminal case on the score that the tragedy that happened was an act of God. The Apex Court held that the plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rightly rejected by the Tribunal. It is apt to reproduce paragraph 2 of the judgment herein:- "2. The Facts – A stage carriage belonging to the petitioner was on a trip when, after nightfall, the bus hit an over-hanging high tension wire resulting in 26 casualties of which 8 proved instantaneously fatal. A criminal case ensued but the accused-driver was acquitted on the score that the tragedy that happened was an act of God. The Accidents Claims Tribunal which tried the claims for compensation under the Motor Vehicles Act, came to the conclusion, affirmed by the High Court, that, despite the screams of the passengers about the dangerous overhanging wire ahead, the rash driver sped towards the lethal spot. Some lost their lives instantly; several lost their limbs likewise. The Accidents Claims Tribunal which tried the claims for compensation under the Motor Vehicles Act, came to the conclusion, affirmed by the High Court, that, despite the screams of the passengers about the dangerous overhanging wire ahead, the rash driver sped towards the lethal spot. Some lost their lives instantly; several lost their limbs likewise. The High Court, after examining the materials, concluded: "We therefore sustain the finding of the Tribunal that the accident had taken place due to the rashness and negligence of R.W. 1 (driver) and consequently the appellant is vicariously liable to pay compensation to the claimant." The plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rejected and rightly. The requirements of culpable rashness under Section 304A, I.P.C. is more drastic than negligence sufficient under the law of tort to create liability. The quantum of compensation was moderately fixed and although there was, perhaps, a case for enhancement, the High Court dismissed the cross-claims also. Being questions of fact, we are obviously unwilling to re-open the holdings on culpability and compensation." 17. It is also profitable to reproduce relevant portion of paragraph 8 of the judgment rendered by the High Court of Karnataka in a case titled Vinobabai and others versus K.S.R.T.C. and another, reported in 1979 ACJ 282: "8. Thus, the law is settled that when the driver is convicted in a regular trial before the Criminal Court, the fact that he is convicted becomes admissible in evidence in a civil proceeding and it becomes prima facie evidence that the driver was culpably negligent in causing the accident. The converse is not true; because the driver is acquitted in a criminal case arising out of the accident, it is not established even prima facie that the driver is not negligent, as a higher degree of culpability is required to bring home an offence." 18. The Apex Court in a case titled Pushpabai Parshottam Udeshi and others vs. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. and another, reported in AIR 1977 Supreme Court 1735, held that the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. It is apt to reproduce relevant portion of paragraph 6 of the judgment herein:- "6. Pvt. Ltd. and another, reported in AIR 1977 Supreme Court 1735, held that the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. It is apt to reproduce relevant portion of paragraph 6 of the judgment herein:- "6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Ed.) at p. 306 states:- "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused." In Halsbury's Laws of England, 3rd Ed., Vol. 28, at page 77, the position is stated thus:- "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous." Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part." 19. Reliance is also placed on the judgment made by this Court in Himachal Road Transport Corporation and another vs. Jarnail Singh and others, reported in Latest HLJ 2009 (HP) 174, wherein it has been held that acquittal of the driver in the criminal trial will have no bearing on the findings to be recorded by the Motor Accident Claims Tribunal whether the driver was negligent or not in causing the accident. It is apt to reproduce relevant portion of paragraph 15 of the judgment herein: "15. In view of the definitive law laid down by their Lordships of the Hon'ble Supreme Court and the judgments cited hereinabove, it is now well settled law that the acquittal of the driver in the criminal trial will have no bearing on the findings to be recorded by the Motor Accident Claims Tribunal whether the driver was negligence or not in causing the accident." 20. Similar view has been taken by this Court in FAO No. 111 of 2009, titled Asha Devi & other vs. H.R.T.C. and other, decided on 16.5.2014. 21. Section 181 of the Act provides penalty for the driver, who drives the vehicle in breach of the mandate of Sections 3, 4 and 10 of the Act. Admittedly, the driver of the offending vehicle was convicted under Section 181 of the Act. The said finding recorded by the Court of the Judicial Magistrate has attained finality. Thus, there was no need for the insurer to lead evidence to prove that the owner has committed willful breach. 22. Viewed thus, it can safely be held that the driver had driven the offending vehicle without valid and effective driving licence. Thus, the owner had committed willful breach of the terms and conditions contained in the insurance policy and also of the mandate of Section 149 of the Act. 23. The argument advanced by the learned counsel for the appellants that the claimant has failed to prove the factum of rashness and negligence and the contents of the FIR is misconceived in view of the discussion made hereinabove. 24 The Tribunal has rightly scanned the evidence, oral as well as documentary, in paragraphs 12 and 16 of the impugned award and has rightly saddled the appellants (the owner and the driver) with the liability. 25. 24 The Tribunal has rightly scanned the evidence, oral as well as documentary, in paragraphs 12 and 16 of the impugned award and has rightly saddled the appellants (the owner and the driver) with the liability. 25. Having said so, the Tribunal has rightly passed the impugned award, which merits to be upheld and the same is upheld. As a consequence, the appeal, in hand, is dismissed.