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2014 DIGILAW 633 (HP)

New India Assurance Company Ltd. v. Nirmala Devi

2014-05-23

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, ACJ (Oral) This appeal is directed against the judgment and award dated 3.11.2005, passed by the Motor Accident Claims Tribunal Kullu, District Kullu, H.P. in claim petition No. 2 of 2004, titled as Smt. Nirmala Devi versus Rattan lal Sharma and others, whereby compensation to the tune of `7,67,000/- along with interest at the rate of 7.5% per annum came to be awarded in favour of claimants- respondents No. 1 to 5 herein, against the appellant/insurer and insured owner, for short “the impugned award”, on the grounds taken in the memo of appeal. 2. Apparently, Smt. Nirmala Devi and others being victims of motor vehicles accident had invoked the jurisdiction of the Motor Accident Claims Tribunal, for the grant of compensation to the tune of `6 lacs, as per the break-ups given in the memo of claim petition, on the grounds, which can aptly and precisely be summarized as under: 3. Deceased Rattan Singh, who was bread earner and source of dependency of the claimants, was travelling in the car bearing registration No. HP58-0225 on 6.10.2003, and was going from Shimla to Bilaspur, which was hit by a truck bearing registration No.HP-1 1-3418, which was being driven by the driver of the offending truck rashly and negligently and caused the accident in which deceased sustained injuries and succumbed to the same. 4. Respondents appeared before the Tribunal. The driver and owner filed joint reply; however, insurer filed the separate reply. 5. The Tribunal after examining the pleadings of the parties, framed the following issues:- (i) Whether the accident took place due to rash and negligent driving of truck bearing regn. No. HP-1 1-3411, which was being driven by respondent No. 2 in which Rattan Lal died, as alleged? OPP. (ii) If case issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP. (iii) Whether respondent No. 2 was not holding valid and effective driving licence at the time of accident? OPR-3. (iv) Relief. 6. The claimants examined as many as four witnesses. In addition, Nirmala Devi claimant herself appeared in the witness-box. The insurer examined only one RW1 Head Constable Padam Dev Investigating Officer in this case. 7. OPP. (iii) Whether respondent No. 2 was not holding valid and effective driving licence at the time of accident? OPR-3. (iv) Relief. 6. The claimants examined as many as four witnesses. In addition, Nirmala Devi claimant herself appeared in the witness-box. The insurer examined only one RW1 Head Constable Padam Dev Investigating Officer in this case. 7. The Tribunal, after scanning the evidence, held that the claimants have proved by leading oral and documentary evidence issue No. 1 by holding that the truck driver has driven the truck rashly and negligently and hit the car in which deceased Rattan Singh was travelling, who sustained injuries and succumbed to the same. The Tribunal also decided Issue No. 2 in favour of the claimants and awarded the compensation to the tune of `6,67,000/- in favour of the claimants, in terms of the impugned award and saddled the insurer with the liability, being insurer of the offending truck. 8. Respondent No. 2 has failed to lead any evidence in order to discharge the onus to prove issue No. 3 and accordingly it was held that respondent has failed to prove the same and decided the same against the insurer/appellant. 9. The appellant-insurer has questioned the impugned award on the following two grounds:- (i) That the accident was outcome of the rash and negligent driving of the deceased Rattan Singh, who was driving the car rashly and negligently and caused the accident himself; (ii) That the compensation awarded is at higher side. 10. The learned counsel for the appellant has argued that the FIR was lodged by Shri Shyam Lal in which it was reported that Rattan Singh was driving the car rashly and negligently and no allegation was made against the truck driver. That the appellant- insurer has examined Head Constable Padam Dev who has conducted the investigation of FIR No. 165/2003 police station Boileauganj, Shimla under Sections 279, 337 and 304-A of the Indian Penal Code, has concluded the case as untraced. He further argued that the constable has also stated that the truck driver was not involved in the accident and had not driven the vehicle rashly and negligently. He further argued that the constable has also stated that the truck driver was not involved in the accident and had not driven the vehicle rashly and negligently. He further argued that the impugned award is not in accordance with the schedule appended to the Motor Vehicles Act, thus the amount awarded is at higher side, the insurer has every right to question the same in view of the permission which the insurer has sought under Section 173 of the Motor Vehicles Act. 11. The argument addressed by the learned counsel for the appellant, though appears to be plausible, yet is of no force for the following reasons. 12. The claimants have specifically averred in para 9 of the claim petition as follows:- “The deceased Sh. Rattan Lal Mahajan on dated 6.10.2003 was coming in his car from Shimla to Kullu and when at about 5 PM reached near 16 miles NH-88 on Bilaspur Shimla road the Truck bearing No. HP- 11-3418 being driven by the respondent No. 2 in rash and negligent manner, hit the said car of deceased and dragged the same upto 10 feet back as a result of which the deceased Sh. Rattan lal suffered multiple injuries on his body and then was taken to IGMC Shimla where he was attended by the doctor on duty and was admitted but on the next day succumbed to injuries.” 13. The driver and owner have denied evasively the aforementioned para of the claim petition and rather denied the factum of accident. The insurer has not taken this ground in the reply. Thus, it is moot question whether it can question the findings recorded, I leave this question open. 14. The insurer has not denied para 9 of the claim petition specifically but denied the same evasively. It is beaten law of the land that when denial is evasive and not specific, it is deemed to have been admitted in terms of Order 8 Rule 3 of the Code of Civil Procedure, for short “the Code”, which reads as under:- “3. Denial to be specific.- It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation fact of which he does not admit the truth, except damages.” 15. Denial to be specific.- It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation fact of which he does not admit the truth, except damages.” 15. While going through the aforesaid provision, respondents were under legal obligation to deny the averments specifically and not evasively and while applying the mandate of Order 8 Rule 3 of the Code, it stands admitted. 16. I have gone through the impugned award and the evidence on record. 17. The claimants- respondents herein have examined one witness Neeraj Gupta as PW2, who has stated that he has seen the accident with his own eyes and has deposed that accident was outcome of rash and negligent driving of the truck driver who was driving the truck on a high speed and could not control the vehicle despite the fact that he applied the brakes and while applying brakes, truck moved ahead and there were signs of scratches on the tyres of the truck. Not only this, even Padam Dev, Investigating Officer has stated that there was skidding marks at a distance of 2-3 feet which had occurred due to applying of brakes by the truck driver. Thus, while scanning the evidence of Padam Singh, it can be safely held that truck driver has driven the truck rashly and negligently. Even otherwise, he had last opportunity to avoid the accident which he could not avoid for the reasons that he was driving the truck rashly and negligently. He could not do so because of high speed. 18. Having said so, the Tribunal has rightly recorded the findings on Issue No. 1. 19. Now adverting to issue No. 3, respondent No. 3 has not led any evidence on this issue, thus it can be safely said that respondent No. 3 failed to prove this issue. Even the appellant has not questioned the same and the findings returned by the Tribunal on this issue are upheld. 20. While coming to issue No. 2, the learned counsel for the appellant argued that the compensation awarded is excessive. This argument is not correct rather the compensation awarded is inadequate. However, the claimants have specifically averred that the deceased was earning `22362/- as salary per month and has placed on record the salary slip. 20. While coming to issue No. 2, the learned counsel for the appellant argued that the compensation awarded is excessive. This argument is not correct rather the compensation awarded is inadequate. However, the claimants have specifically averred that the deceased was earning `22362/- as salary per month and has placed on record the salary slip. It is also proved that his age was 56 years at the time of accident and the Tribunal after making deductions held that the claimants have lost source of dependency to the tune of ` 15,333.03 per month and applied the multiplier of “8” which is just and appropriate multiplier applicable, while keeping in view the schedule appended to the Motor Vehicles Act read with S arla Verma and Ors versus Delhi Transport Corporation and anr. AIR 2009 SC 3104 which has also been followed and affirmed in Reshma Kumari and others versus Madan Mohan and anr. 2013 AIR (SCW) 3120. 21. Having said so, the compensation awarded is just and adequate. Thus no interference is warranted. 22. As a corollary, the appeal is dismissed and the impugned award is upheld. 23. The amount deposited in the Registry of this court, be released in favour of the claimants, strictly, in terms of conditions contained in the impugned award, through payee’s cheque.