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2015 DIGILAW 114 (HP)

Ashok Sharma v. Shiv Devi

2015-02-27

MANSOOR AHMAD MIR

body2015
JUDGMENT Mansoor Ahmad Mir, Chief Justice (Oral): Both these appeals are the outcome of an award, dated 1st September, 2007, passed by Motor Accident Claims Tribunal, Shimla, (for short, the Tribunal), in MAC Petition No.169-S/2 of 2003, titled Ashok Sharma vs. Shiv Devi and others, whereby compensation to the tune of Rs.32,349/- with interest at the rate of 7.5% per annum, came to be awarded in favour of the claimant Ashok Sharma and the owner of the vehicle, namely, Smt. Shiv Devi, came to be saddled with the liability, (for short the impugned award). 2. The claimant Ashok Sharma, by the medium of FAO No.459 of 2007, has questioned the impugned award on the ground of adequacy of compensation and has sought enhancement of the compensation. The owner of the offending vehicle Smt. Shiv Devi has questioned the impugned award by the medium of FAO No.472 of 2007 on the ground that the Tribunal has fallen in an error in saddling her with the liability, and wrongly discharged the insurer i.e. The New India Assurance Company Limited. 3. It is necessary to give brief resume of the facts of the case, the womb of which has given birth to the instant appeals. Claimant Ashok Kumar filed the Claim Petition before the Tribunal and sought compensation to the tune of Rs.5.00 lacs as per the break-ups given in the Claim Petition, on the ground that on 27th August, 2003, he was traveling in the offending truck bearing registration No.HP-63-0296, which met with an accident near Kufri, as a result of which he sustained injuries, was taken to Indira Gandhi Medical College, Shimla and remained under treatment for fracture on his right leg. In paragraph 10 of the Claim Petition, the claimant specifically stated that he boarded the offending truck at Parwanoo and was going to Rohru with karyana goods. It may be noted here that the Claimant has not averred in the Claim Petition that he had hired the offending truck for the purpose of carrying karyana goods. 4. The Claim Petition was resisted by the owner, the driver and the insurer on various grounds and following issues came to be settled: (1). Whether the petitioner has suffered injuries due to rash and negligent driving of truck No.HP.63-0296 by respondent Dev Raj? …OPP (2). In case, issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled? Whether the petitioner has suffered injuries due to rash and negligent driving of truck No.HP.63-0296 by respondent Dev Raj? …OPP (2). In case, issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled? …OPP (3). Whether the petition is not maintainable as alleged? …..OPR (4). Whether the petitioner is guilty of concealing material facts? OPR (5). Whether this Tribunal has no jurisdiction to adjudicate the petition as alleged? …OPR. (6). Whether the vehicle, in question, was being plied in violation of the terms and conditions of the insurance policy? OPR-3 (7). Whether the driver of the offending vehicle was not holding a valid and effective driving license at the time of accident?... OPR-3 (8). Whether the petitioner was traveling by the truck in question, a goods vehicle, as a gratuitous passenger, if so its effect? OPR-3. (9). Whether the petition has been filed by the petitioner in collusion with respondents No.1 and 2? ..OPR-3. 10). Relief. 5. In order to prove his claim, the Claimant examined three witnesses and also appeared himself in the witness box. The respondents have examined as many as five witnesses and the evidence came to be closed. The Claimant as well as the respondents placed on record the documents, the detail of which has been given in the impugned award. 6. The Tribunal, after scanning the evidence, decided Issue No.1 in favour of the Claimant and held that the driver of the offending vehicle had driven the offending vehicle rashly and negligently and caused the accident in which the claimant sustained injuries. The said findings are not in dispute. However, I have gone through the findings recorded by the Tribunal on this issue and am of the opinion that the Tribunal has rightly decided the said issue. Accordingly, the findings recorded by the Tribunal on Issue No.1 are upheld. 7. Before Issues No.2, 6 and 8 are dealt with, I deem it proper to deal with issues No.3, 4, 5, 7 and 9. The findings recorded on theses issues have not been challenged either by the Claimant or by any other party. However, I have gone through the entire record. The Tribunal has rightly held that the Claim Petition was maintainable, the Claimant was not guilty of concealing material facts, the Tribunal has the jurisdiction and that the driver of the offending vehicle was having the effective driving license. However, I have gone through the entire record. The Tribunal has rightly held that the Claim Petition was maintainable, the Claimant was not guilty of concealing material facts, the Tribunal has the jurisdiction and that the driver of the offending vehicle was having the effective driving license. Accordingly, the findings recorded by the Tribunal on these Issues are upheld. 8. Coming to Issues No.2, 6 and 8, these issues are interlinked and are being taken up together. The Tribunal, after examining the medical evidence and other oral evidence, has rightly awarded the compensation, the details of which have been given by the Tribunal in paragraphs 59, 60, 61, 62 and 63 of the impugned award. I have gone through the statement of the medical expert and the discussion made by the Tribunal, and am of the considered view that the compensation cannot be said either to be inadequate or excessive, in any way. Therefore, the compensation awarded by the Tribunal is held to be adequate. As a consequence, the appeal filed by the claimant for enhancement of compensation being FAO No. 459 of 2007 is dismissed. 9. Coming to FAO No.472 of 2007, the insured has questioned the impugned award on the ground that the Tribunal has fallen in an error in saddling her with the liability. Admittedly, the Claimant has not pleaded in the Claim Petition that he had hired the vehicle for carrying goods. Even the Claimant has not led any evidence to prove the said fact. On the other hand, respondents have examined one Virender Kumar as RW-1 who has deposed that on the fateful day, he boarded the offending truck from Kalka and the Claimant boarded the same from Parwanoo. He has nowhere stated that the Claimant had hired the vehicle for carrying his goods, rather he has specifically stated that the Claimant boarded the offending truck from Parwanoo. 10. I have gone through the impugned award. The Tribunal has rightly made the discussion in paragraphs 28 and 29 and has rightly come to the conclusion that the claimant was a gratuitous passenger. 11. Having said so, the Tribunal has rightly saddled the owner with the liability. Accordingly, the appeal filed by the insured, being FAO No.472 of 2007, is also liable to be dismissed and the same is dismissed accordingly. 12. 11. Having said so, the Tribunal has rightly saddled the owner with the liability. Accordingly, the appeal filed by the insured, being FAO No.472 of 2007, is also liable to be dismissed and the same is dismissed accordingly. 12. The Registry is directed to release the compensation amount in favour of the claimant strictly in terms of the impugned award.