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Himachal Pradesh High Court · body

2014 DIGILAW 341 (HP)

Oriental Insurance Company v. Shashibala

2014-04-04

MANSOOR AHMAD MIR

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JUDGMENT Mansoor Ahmad Mir, A.C.J. (Oral) Challenge in this appeal is to the award, dated 10.2.2006, passed by Motor Accident Claims Tribunal, Hamirpur, (hereinafter referred to as ‘the Tribunal’), in Claim Petition No.84 of 2004, titled Shashibala vs. Amar Singh and others, whereby compensation to the tune of Rs.6,48,000/- was awarded in favour of the claimants (respondents No.1 to 4 herein), with interest at the rate of 8% per annum, from the date of award till its final realization, (for short the ‘impugned award’). Brief facts: 2.The claimants being the victim of a vehicular accident invoked the jurisdiction of the Tribunal for grant of compensation to the tune of Rs.50.00 lacs as per the break­ups given in the Claim Petition, on the grounds taken in the Claim Petition. The Claimants have pleaded that their bread-earner, namely, Shri Baldev Singh, son of Shri Suhru Ram, aged 33 years at the time of accident, became victim of vehicular accident, caused by the driver, namely, Shri Amar Singh, while driving the offending vehicle Mahindra Pickup bearing registration No.HP-44A-091 1 rashly and negligently, on 1 1th October, 2004 at 1.25 p.m. at Alasghar, and sustained injuries and lateron succumbed to the same. He was earning Rs.10,766/- per month being serving as TGT (Non-Medical) in the Education Department of the State of Himachal Pradesh. 3. Driver, owner and the insurer resisted the claim petition by the medium of the written statements. After examining the pleadings, the Tribunal framed the following issues: “1. Whether Shri Baldev Singh had died on account of rash and negligent driving of respondent No.1 of vehicle No.HP-44-A-091 1? OPP 2.If issue No.1 is proved, to what amount of compensation and from whom are the petitioners entitled to? OPP 3.Whether respondent No.1 had not been in possession of a valid and effective driving license at the time of the accident, if so, with what effect? OPR.3 4.Whether Shri Baldev Singh was a gratuitous passenger traveling in vehicle No.HP-44-A-0911, if so, with what effect? OPR.3 5.Relief.” 4.Parties were directed to lead evidence. The claimants have examined five witnesses in all, including Claimant No.1. Driver of the offending vehicle has stepped into the witness box as RW-1. However, no other witness was examined by the respondents. OPR.3 4.Whether Shri Baldev Singh was a gratuitous passenger traveling in vehicle No.HP-44-A-0911, if so, with what effect? OPR.3 5.Relief.” 4.Parties were directed to lead evidence. The claimants have examined five witnesses in all, including Claimant No.1. Driver of the offending vehicle has stepped into the witness box as RW-1. However, no other witness was examined by the respondents. 5.The Tribunal after scanning the entire evidence decided all the issues in favour of the claimants and against the respondents and the insurer-appellant was saddled with the liability to satisfy the award within 45 days. In default, the award amount of Rs.6,48,000/- was made recoverable at the rate of 8% per annum. 6.Since the owner and the driver have not questioned the impugned award, therefore, the same has attained finality insofar it relates to them. Only the insurer- appellant has questioned the impugned award. 7.In precise, the ground of attack taken in the memo of appeal is that the driver was not driving the offending vehicle rashly and negligently and the accident was outcome of the act of God. It has also been pleaded that the deceased was traveling in the offending vehicle as a gratuitous passenger and, therefore, the insurer-appellant cannot be saddled with the liability and prayed for its exoneration. 8.I have heard the learned counsel for the parties and scanned the entire evidence. I deem it proper to discuss the findings returned by the Tribunal issue-wise. Issue No.1: 9.The claimants have led oral as well as documentary evidence and have proved that the deceased, namely, Baldev Singh was traveling in the vehicle and boulder suddenly rolled down and hit the offending vehicle. In the process, the deceased sustained injuries and lateron succumbed to the same. There is no rebuttal to the said evidence. However, the driver Amar Singh has appeared in the witness box as RW-1 and stated that he was driving the vehicle with due care and caution, but a boulder suddenly rolled down from hill side and struck the vehicle, when he was crossing the area of Alasghar, due to which the deceased sustained injuries and died lateron. Thus, he has also proved that the accident was the outcome of use of the offending vehicle. Had the driver of the offending vehicle taken due care and caution, he would have avoided the accident. Thus, he has also proved that the accident was the outcome of use of the offending vehicle. Had the driver of the offending vehicle taken due care and caution, he would have avoided the accident. There is ample evidence on the file in support of the case of the claimants that the accident was the outcome of the rashness and negligence of the driver. Thus, the findings returned by the learned Tribunal on this issue are liable to be upheld. 10.Before discussing issue No.2, I deem it proper to discuss Issues No.3 and 4. Issue No.3: 11.The insurer has not led any evidence in order to prove this issue. However, the driver of the offending vehicle appeared in the witness box as RW-1 and produced photocopy of the driving license Ext.RX-1, which discloses that the driver was having a valid driving license to drive light transport vehicle. The onus to prove this issue was upon the insurer, which they failed to discharge. Therefore, the findings of the learned Tribunal under this issue are upheld. Issue No.4: 12.There is ample evidence on the file, oral as well as documentary, led by the claimants that the deceased was traveling in the said vehicle alongwith his goods. The offending vehicle was a commercial one for carrying the goods, which fact also finds corroboration from the copy of the insurance cover Ex.R-6 and the registration certificate Ex.R-3 placed on the file. The deceased cannot be termed as gratuitous passenger since the insurance policy/agreement was covering the risk of two persons and the driver of the vehicle. The insurer-appellant has admitted that the offending vehicle was duly insured. The insurer has sought exoneration only on the ground that the deceased was a gratuitous passenger, without leading any evidence to that effect. Therefore, as discussed hereinabove, the claimants have proved that the deceased was the owner of the goods and was traveling in the said vehicle in that capacity. The vehicle in question was a goods carriage vehicle, which also covered the risk of the driver, goods being taken in the vehicle and the person who was traveling in the vehicle as owner of the goods. Thus, the findings returned by the Tribunal on this issue are also upheld. The vehicle in question was a goods carriage vehicle, which also covered the risk of the driver, goods being taken in the vehicle and the person who was traveling in the vehicle as owner of the goods. Thus, the findings returned by the Tribunal on this issue are also upheld. Issue No.2: 13.The claimants have proved that the deceased was a Government employee and was drawing Rs.10,766/- as gross salary and his age was 33 years at the time of accident. They have also placed on record a photocopy of matriculation certificate of the deceased, which discloses the date of birth of the deceased as 20th May, 1972. Therefore, in view of the law laid down by the Apex Court in the case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Ramesh Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120, multiplier ’12’ was rightly applied by the Tribunal. The Tribunal has wrongly deducted Rs.200/-, which the deceased was paying as house rent. Subscriptions towards G.P. Fund and GIS have also been wrongly deducted by the Tribunal. After the said deductions, it was held by the Tribunal that the claimants have lost source of dependency to the tune of Rs.4,500/- per month, which is not legally correct. The Tribunal has also fallen in error for not awarding compensation under the heads ‘consortium’ and ‘ loss of love and affection’. After applying the multiplier of 12, the Tribunal has awarded compensation to the tune of Rs.6,48,000/-. Since the claimants have not questioned the impugned award, therefore, reluctantly, I hold that the Tribunal has rightly awarded Rs.6,48,000/- as compensation and the Insurer was rightly saddled with the liability. 14.Learned counsel for the appellant has argued that initially, the claimants filed the claim petition under Section 166 of the Act. Thereafter, an application was moved for treating the same under Section 163-A, which was allowed. However, the impugned award was passed under Section 166 of the Act. Therefore, it was submitted that the impugned award ought to have been made in terms of the provisions contained in Section 163-A and the schedule attached thereto, and not under Section 166 of the Act. The argument is misconceived and deserves to be rejected outrightly for the following reasons. Therefore, it was submitted that the impugned award ought to have been made in terms of the provisions contained in Section 163-A and the schedule attached thereto, and not under Section 166 of the Act. The argument is misconceived and deserves to be rejected outrightly for the following reasons. 15.The Motor Vehicles Act has gone a sea change and sub section (6) to Section 158 and sub section (4) to Section 166 have been added, which are reproduced below: “158(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer.” “166(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act.” 16. The purpose of adding the aforementioned sub sections in the Motor Vehicles Act is to ensure that the claimants do not suffer unnecessarily and get compensation as early as possible. If a Claims Tribunal can treat any report of accident forwarded to it under Section 158 (6) as an application for compensation, it does not lie in the mouth of the insurer to plead that the impugned award is bad in the eyes of law for the reason that initially, the Claim Petition was filed under Section 166 and subsequently, was converted into Section 163-A and ultimately, the award was passed under Section 166 of the Act. The aim and object of the provisions enumerated above is to provide compensation to the claimants of vehicular accidents as early as possible so that they do not suffer unnecessarily and become prey to social evils. The aim and object of the provisions enumerated above is to provide compensation to the claimants of vehicular accidents as early as possible so that they do not suffer unnecessarily and become prey to social evils. It is also well settled law that the claim petitions, arising out of vehicular accidents, should not be thrown out and the poor claimants should not be shown the door on hyper- technicalities and a duty has been cast upon the Tribunals/Courts to see that justice is done. Thus, the argument canvassed by the learned counsel for the insurer is devoid of any merit. 17.Having said so, the appeal fails and the same is dismissed. The Registry is directed to release the award amount in favour of the claimants as ordered by the Tribunal. However, before parting with, it may be made clear that the father of the deceased (respondent No.4 herein) has died during the pendency of the appeal, whose legal representatives are already on record. Therefore, the award amount, falling to his share, be released in favour of respondent No.3 Krishni Devi (widow of respondent No.4 and mother of the deceased Baldev Singh), widow and son of the deceased Baldev Singh in equal shares. Record of the Tribunal be sent back alongwith a copy of this judgment.