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2014 DIGILAW 1965 (HP)

Kesari Devi v. Anil Kumar Mastana

2014-12-19

MANSOOR AHMAD MIR

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JUDGMENT : MANSOOR AHMAD MIR, J. 1. Both these appeals are outcome of award, dated 14th June, 2007, made by the Motor Accident Claims Tribunal, Hamirpur, H.P. (hereinafter referred to as "the Tribunal) in MAC Petition No. 81 of 2006, titled as Kesari Devi versus Anil Kumar @ Mastana and others, whereby compensation to the tune of Rs. 1,50,000/- with interest @ 9% per annum from the date of petition till its realization came to be awarded in favour of the claimant-injured and the ownerinsured and driver-Anil Kumar came to be saddled with liability jointly and severally (hereinafter referred to as "the impugned award"). Therefore, I deem it proper to dispose of both these appeals by a common judgment. 2. By the medium of FAO No. 347 of 2007, the claimant-injured has questioned the impugned award on the ground of adequacy of compensation. 3. The owner-insured, by the medium of FAO No. 407 of 2007, has called in question the impugned award on the ground that the Tribunal has fallen in error in saddling him with liability. 4. In order to determine the issue, it would be profitable to give a brief resume of the facts of the case. Brief facts: 5. The claimant-injured, namely Smt. Kesari Devi, filed a claim petition before the Tribunal for grant of compensation on the ground that on 29th June, 2006, at about 12.45 p.m., she was waiting at Bus Stand Hamirpur for boarding a bus, was hit by a bus, bearing registration No. HP-22-7103, which was being driven by Shri Anil Kumar @ Mastana-respondent No. 1 in the claim petition, rashly and negligently, sustained grievous injuries because her right hand was crushed, FIR No. 236 of 2006 was registered at Police Station Hamirpur, was referred to Regional Hospital, Hamirpur, remained under treatment for two months. Further pleaded that she has suffered 75% permanent disability and the disability certificate, Ext. PW-1/A, was issued by the concerned Doctor. 6. The claimant-injured has claimed compensation to the tune of Rs. 15,50,000/- as compensation including 50,000/- as interim compensation. 7. The insurer, owner-insured and the driver of the offending vehicle resisted the claim petition on the grounds taken in the respective memo of objections. 8. On the pleadings of the parties, following issues came to be framed by the Tribunal: “1. The claimant-injured has claimed compensation to the tune of Rs. 15,50,000/- as compensation including 50,000/- as interim compensation. 7. The insurer, owner-insured and the driver of the offending vehicle resisted the claim petition on the grounds taken in the respective memo of objections. 8. On the pleadings of the parties, following issues came to be framed by the Tribunal: “1. Whether the petitioner had sustained injuries in a motor vehicle accident owing to rash and negligent driving on the part of respondent No. 1 while driving bus No. HP-22-7103? OPP 2. In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP 3. Whether respondent No. 1 was not holding a valid and effective driving licence at the time of the accident and if so, its effect? OPR-3 4. Whether offending bus was being plied without a valid Route Permit and Registration & Fitness Certificates and if so, its effect? OPR-3 5. Relief." 9. The claimant-injured has examined Shri Sanjay Pathania, Record Keeper, Regional Hospital, Hamirpur as PW-1, Dr. Dinesh Thakur as PW-2, HC Prakash Chand as PW-3 and has herself stepped into the witness box as PW-4. The driver-Anil Kumer has himself stepped into the witness box as RW-1. The owner-insured as examined Shri Ramesh Chand as RW-3 and has himself stepped into the witness box as RW-2. The insurer has not led any evidence in support of its case. Issue No. 1: 10. The Tribunal, after scanning the evidence, held that the claimantinjured has proved that the accident was outcome of rash and negligent driving of Shri Anil Kumar while driving the bus, bearing registration No. HP-22-7103. Accordingly, issue No. 1 came to be decided in favour of the claimant-injured. The claimant-injured, the owner-insured and the insurer have not questioned the findings returned by the Tribunal on issue No. 1, are accordingly upheld. 11. Before I deal with issue No. 2, I deem it proper to determine issues No. 3 and 4. Issues No. 3 and 4: 12. The insurer had to prove both these issues, has not led any evidence. The owner-insured and the alleged driver, namely Shri Ramesh Chand, have admitted that Shri Anil Kumar-respondent No. 1 in the claim petition had driven the vehicle at the relevant point of time, caused the accident and he was not holding driving licence. 13. The insurer had to prove both these issues, has not led any evidence. The owner-insured and the alleged driver, namely Shri Ramesh Chand, have admitted that Shri Anil Kumar-respondent No. 1 in the claim petition had driven the vehicle at the relevant point of time, caused the accident and he was not holding driving licence. 13. It is also positive case of the owner-insured that he had not engaged Shri Anil Kumar as a driver, but has engaged one Shri Ramesh Chand, who was in possession of the vehicle alongwith the keys and Shri Anil Kumar had unauthorizedly driven the vehicle. Shri Anil Kumar has neither pleaded nor proved that he was having the driving licence, rather he has denied that he had driven the vehicle at the time of accident. Thus, the Tribunal has rightly recorded the findings on issue No. 3 to the effect that driver-Anil Kumar was not having valid and effective driving licence. Accordingly, the findings returned by the Tribunal on issue No. 3 are upheld. 14. The insurer has failed to lead evidence to prove that the offending vehicle was being driven without valid documents, i.e. route permit, registration and fitness certificates and rightly came to be decided against the insurer. Having said so, the findings returned by the Tribunal on issue No. 4 are upheld. Issue No. 2: 15. The Tribunal has discharged the insurer from liability and directed the owner-insured and driver-Anil Kumar to satisfy the award. 16. The owner-insured has questioned the said finding on the ground that he had engaged Shri Ramesh Chand as driver and Shri Anil Kumar, on his own, has started the vehicle and caused the accident, without his permission or without the consent of Shri Ramesh Chand. Further, it is pleaded that they have also lodged a police report. 17. The Tribunal has discussed the said issue in paras 14 and 15 of the impugned award, is well reasoned and needs no interference. I deem it proper to record herein that if Shri Ramesh Chand was the driver; was in possession of the keys and were with him at the relevant point of time, then how Shri Anil Kumar opened the window/door of the vehicle and entered into the same, is an important factor which goes against the owner-insured and the driver. Thus, adverse inference is to be drawn. 18. Thus, adverse inference is to be drawn. 18. The owner-insured and Shri Ramesh Chand, while appearing in the witness box as RW-2 and RW-3, have stated that they have lodged a police report. There is no proof on the file to the effect or to show as to what was the outcome of the police report and the investigation conducted. Even the ownerinsured has not examined any witness from the police department in order to substantiate his plea. 19. Having said so, the Tribunal has rightly recorded the findings and has rightly saddled the owner-insured and driver-Anil Kumar with liability. 20. The claimant-injured has also questioned the findings returned on issue No. 2 so far it relates to quantum of compensation. I have gone through the claim petition. The claimant-injured has not given the break-ups how she has claimed compensation to the tune of Rs.15,00,000/-. She has also not placed on record the medical reports or bills to substantiate her claim. Even, there is no evidence on the file to prove her income and how it has affected her earning capacity. 21. It appears that the Tribunal, after making guess work, has rightly awarded Rs.50,000/- under the head "pain and sufferings" and Rs.1,00,000/- under the head "permanent disability". 22. May be the amount is meager, but keeping in view the fact that the owner-insured also belongs to rural area and appears to be poor read with the fact that the driver-Anil Kumar has passed away during the pendency of the appeal, I am of the considered view that the amount awarded is just and appropriate. 23. Having said so, the findings returned by the Tribunal on issue No. 2 are upheld. 24. Having glance of the above discussions, the impugned award needs to be upheld, is accordingly upheld and both the appeals are dismissed. 25. The driver-Anil Kumar has passed away during the pendency of the appeal. The insurer has deposited Rs.25,000/- as interim compensation. Thus, I direct the owner-insured to deposit Rs. 1,25,000/- with interest @ 9% per annum from the date of the petition, i.e. 9th October, 2006, till its deposition, before the Registry within twelve weeks. On deposition of the amount, the same be released in favour of the claimant-injured after proper identification. 26. Send down the records after placing copy of the judgment on each of the files.