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2014 DIGILAW 1461 (HP)

Bhawani Singh v. Dhan Dev

2014-10-17

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the judgment and award, dated 17th June, 2010, made by the Motor Accident Claims Tribunal (I), Mandi, (hereinafter referred to as ?the Tribunal?) in Claim Petition No. 28 of 2008, titled as Dhan Dev versus Bhawani Singh & others, whereby compensation to the tune of Rs. 86,000/- with interest @ 9% per annum from the date of filing of the claim petition till its realization came to be awarded in favour of the claimant-injured and against the appellants respondents No. 1 and 2 in the claim petition (hereinafter referred to as ?the impugned award?). 2. The claimant-injured and the insurer have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. The appellants have questioned the impugned award on the ground that the Tribunal has fallen in error in saddling them with liability and discharging the insurer. 4. The claimant-injured, namely Shri Dhan Dev, became victim of the motor vehicular accident which was caused by the driver of a private car, bearing registration No. HP-34 A-7167, on 8th December, 2007, at Bali Chowki, while driving the offending vehicle rashly and negligently, hit the claimant-injured, in which he sustained injuries. 5. One of the questions to be determined in this appeal is – whether the offending vehicle was being driven by Shri Mangharu or by Shri Bir Singh? 6. Respondents have resisted the claim petition on the grounds taken in the respective memo of objections. Respondents No. 12 and 4 have filed separate replies to the claim petition stating therein that it was Shri Bir Singh (respondent No. 4 in the claim petition), who was driving the offending vehicle at the time of accident. It is apt to reproduce relevant portion of the reply filed by respondent No. 4 herein: ?.......... It is however submitted that respondent No. 4 was driving vehicle no. HP-34A-7167 and respondent no. 1 & 2 were sitting on back seat of the vehicle on 8- 12-2007. It is further submitted that respondent no. 4 was not driving the vehicle rashly and negligently and no accident has taken place due to rash and negligent driving of respondent no. 4 neither the petitioner has sustained any injuries in motor vehicle accident.? 1 & 2 were sitting on back seat of the vehicle on 8- 12-2007. It is further submitted that respondent no. 4 was not driving the vehicle rashly and negligently and no accident has taken place due to rash and negligent driving of respondent no. 4 neither the petitioner has sustained any injuries in motor vehicle accident.? Thus, it is admission on the part of Shri Bir Singh that he was driving the offending vehicle at the relevant point of time. 7. The Tribunal has held that FIR was lodged against Shri Mangharu and report under Section 173 (2) of the Code of Criminal Procedure (hereinafter referred to as ?the CrPC?) was presented against him, thus, it can be presumed that he was driving the offending vehicle at the time of accident. It is apt to reproduce para 19 of the impugned award herein: ?19. FIR was lodged against respondent No. 2. It is also in the evidence that a police challan was presented against him only. The FIR must have been lodged immediately i.e. when there was no chance of manipulation. It can be presumed that the investigation was properly done and on such proper investigation, it must have been found that it was respondent No. 2 who was driving the vehicle that is why police presented challan against him.? 8. Learned counsel for the appellants produced in this Court, in terms of the mandate of Order 41 Rule 27 of the Code of Civil Procedure (hereinafter referred to as ?the CPC?), the judgment, dated 21st June, 2010, made by the Sub Divisional Judicial Magistrate, Chachiot at Gohar, District Mandi (hereinafter referred to as ?the Magistrate?) in Police Challan No. 105-I/2008/1-II/2008, titled as The State of Himachal Pradesh versus Manghru Ram, wherein it has been held that accused, namely Shri Manghru Ram, had taken the defence that he was not driving the offending vehicle, which was being driven by Shri Bir Singh. It is apt to reproduce para 10 of the judgment herein: ?10. Defence of the accused was that of simplicitor denial. Accused in his statement u/s 313 Cr.P.C. stated that on the said date vehicle was being driven by Vir Singh and defence evidence led by the accused was also on similar grounds. Further, defence taken by the accused was that complainant on his own fell into the drain causing injuries to himself. Accused in his statement u/s 313 Cr.P.C. stated that on the said date vehicle was being driven by Vir Singh and defence evidence led by the accused was also on similar grounds. Further, defence taken by the accused was that complainant on his own fell into the drain causing injuries to himself. It was further brought before the court that the vehicle had missing problem because of which it was not possible to drive it in high speed.? 9. The Magistrate, after scanning the evidence, held that case of the State is shrouded in doubts and it is not proved as to who had driven the offending vehicle. It is also apt to reproduce paras 13 and 15 of the said judgment herein: ?13. Thus, first doubt arises in the mind of the court is whether Manghru Ram was driving the vehicle or Vir Singh was driving the vehicle. PW-4 complainant in his cross examination states that 4-5 persons were sitting inside the vehicle. He further states that two persons were sitting on the front side and three persons were sitting in the back seat. He further stated that at the time of accident he did not recognize who was driving the vehicle. Thus, from the statement of the complainant we can safely assume that he had not seen the driver of the vehicle. PW-6 also in his cross examination stated that though he had seen Alto being driven, but he did not see who was driving the vehicle. He further stated that he came to know the name of the driver when police asked the accused. Thus, this eye witness also cannot state the fact who was driving the vehicle. PW-7 in his cross examination has stated that 1-2 persons were sitting inside the vehicle. This is a contradiction with the statement of the injured who stated that five persons were sitting in the vehicle. PW- 7 further states that he does not remember that how many persons were sitting on the back seat of the vehicle, whereas complainant states that three persons were sitting in the back seat of the vehicle. This witness further states that he does not remember that what colour cloth were worn by the accused on the date of accident. PW- 7 further states that he does not remember that how many persons were sitting on the back seat of the vehicle, whereas complainant states that three persons were sitting in the back seat of the vehicle. This witness further states that he does not remember that what colour cloth were worn by the accused on the date of accident. Only this witness has denied the suggestion that he did not see who was driving the vehicle and stated that accused was driving the vehicle. But, this witness is the owner of Cloth Shop Smrat Sale. This witness stated that at the time of accident he was sitting outside his shop on a chair. Whereas complainant as PW-4 has stated in his cross examination that he was talking to PW-7 who was inside his shop. These two facts are contradictory raising a doubt that whether PW-7 Bhoop Singh was inside the shop or outside the shop. Further, the fact that PW-7 is stating that only 1-2 persons were sitting inside the vehicle, whereas injured is stating that 4-5 persons were sitting inside the vehicle, shows that Bhoop Singh might have not seen the accident or is only guessing the fact that accused was driving the vehicle. Further, PW-7 states that he was sitting outside his shop for 15-20 minutes before the accident and Dhan Dev was standing there for 15-20 minutes. Further he stated that complainant Dhan Dev never talked to him for the said 15-20 minutes. Whereas PW- 4 in his cross examination has stated that at the time of accident he was talking to PW-7. These facts in combination shows that present of PW-7 is being deliberately shown at the spot of accident. Further, PW-4 complainant, in his examination in chief has stated that accused has revealed his name to him on being asked by him. Whereas in his cross examination he states that 3-4 persons had come to him asking for forgiveness and name of the accused i.e. Manghru Ram was revealed to him by the police officials and no body else. The said fact in combination with statement of the witness discussed above as well as DW-1 shows that there is a doubt qua the identity of the driver of vehicle No. HP34A-7167. 14. .................... 15. The said fact in combination with statement of the witness discussed above as well as DW-1 shows that there is a doubt qua the identity of the driver of vehicle No. HP34A-7167. 14. .................... 15. Thus, as discussed above there is a doubt qua the identity of the driver and also a doubt has arisen in the mind of the court qua the fact that whether vehicle can be driven in speed or not. Though, I.O. as PW-8 in his examination in chief has corroborated the version of the prosecution, but there is nothing in his examination in chief or cross examination which could remove the aforesaid doubt. In fact in his cross examination first I.O. states that he cannot say whether can had come missing problem or not, but further admits the fact that as per mechanical report has missing problem. This fact brings before the court that I.O. never investigated the case taking into mind the mechanical aspect that car was incapable of being driven in speed. Hence, point No. 1 is decided against the prosecution and in favour of the accused.? 10. Keeping in view the admission on the part of Bir Singh respondent No. 4 in the claim petition read with the judgment made by the Magistrate, reproduced hereinabove, the presumption drawn by the Tribunal in para 19 of the impugned award loses its efficacy. 11. Having said so, one comes to an inescapable conclusion that, prima facie, it was Bir Singh who was driving the offending vehicle at the relevant point of time. 12. Now, the question is – whether he was having valid and effective driving licence to drive the offending vehicle at the time of accident? 13. The photo copy of the driving licence of Bir Singh is on the record of the claim petition at page No. 137, Ext. RA, perusal of which do disclose that Bir Singh was competent to drive light motor vehicle, i.e. offending car, which is not in dispute. Thus, the owner-insured has not committed any willful breach. 14. I have also perused the insurance policy, Ex. RX, in terms of which risk is covered, which is also not disputed. 15. Viewed thus, the impugned award needs to be modified and the insurer-National Insurance Company has to satisfy the award, is, accordingly, saddled with liability. 16. Thus, the owner-insured has not committed any willful breach. 14. I have also perused the insurance policy, Ex. RX, in terms of which risk is covered, which is also not disputed. 15. Viewed thus, the impugned award needs to be modified and the insurer-National Insurance Company has to satisfy the award, is, accordingly, saddled with liability. 16. The insurer-National Insurance Company is directed to deposit the awarded amount with interest before the Registry within six weeks, which shall be released to the claimant-injured after proper verification. After deposition of the awarded amount by the insurer- National Insurance Company, the amount deposited by the appellants be released to them with interest through payee's account cheque. 17. Having glance of the above discussions, the appeal is allowed and the impugned award is modified, as indicated hereinabove. 18. Send down the records after placing copy of the judgment on Tribunal's file.