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2015 DIGILAW 1141 (HP)

Naresh Kumar v. Associate Bulk Transport Co.

2015-08-21

MANSOOR AHMAD MIR

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Judgment Mansoor Ahmad Mir, J. By the medium of the instant appeal, the claimant has questioned the award, dated 21st November, 2008, passed by the Motor Accident Claims Tribunal, Bilaspur, H.P., (for short, “the Tribunal”) in M.A.C. Petition No.28 of 2006, tilted Naresh Kumar vs. M/s Associate Bulk Transport Company and others, whereby the Claim Petition filed by the claimant came to be dismissed, (for short the “impugned award”). 2. Heard learned counsel for the parties and have gone through the record. 3. The Claimant averred in the claim petition that on 26th March, 2006, at about 6.00 p.m. near Veterinary Hospital, National Highway-21, Bilaspur, respondent No.2 (driver), while driving the offending vehicle i.e. Bulkar, bearing No.HP-69-0545, rashly and negligently, hit the motorcycle of the claimant, as a result of which the claimant sustained injuries, was taken to the Zonal Hospital, Bilaspur, where he remained admitted from 26th March, 2006 to 4th April, 2006. The said averment has not been denied by the driver and the owner of the offending vehicle in their reply. However, it was pleaded by them that the accident had occurred due to the rash and negligent driving of the claimant himself, which ground weighed with the Tribunal while dismissing the Claim Petition. 4. In a Claim Petition, the claimant has to prove prima facie that the accident was the outcome of rash and negligent driving of the offending vehicle. Qua the accident, FIR bearing No.109/06, dated 26.3.2006, Ext.PW-1/A, was registered against the driver of the offending vehicle under Sections 279 and 337 of the Indian Penal Code at Police Station, Sadar, Bilaspur, and final report was presented before the competent Court having the jurisdiction. Thus, it was a sufficient proof that the offending vehicle was being driven rashly and negligently in order to grant compensation. However, the Tribunal, after referring to contradictions in the statements of the witnesses, has concluded that the accident had not occurred on account of the rash and negligent driving of the driver of the offending vehicle. 5. It is beaten law of the land that the negligence on the part of the driver of the offending vehicle has to be decided on the hallmark of preponderance of probabilities and not on the basis of proof beyond reasonable doubt. 5. It is beaten law of the land that the negligence on the part of the driver of the offending vehicle has to be decided on the hallmark of preponderance of probabilities and not on the basis of proof beyond reasonable doubt. Furthermore, the claimants claiming compensation in terms of Section 166 of the Motor Vehicles Act is not to be seen as an adversial litigation, but is to be determined while keeping in view the aim and object of granting compensation. 6. In the instant case, the claimant has examined Constable Shyam Lal, Pratap Singh, Rattan Lal, Naresh Kumar (claimant), Dr. Amarjeet Singh and Sanjay Kumar as PW-1 to PW-6, respectively, whose statements, prima facie, do disclose that the accident was the outcome of rash and negligent driving of the driver of the offending vehicle. Copy of the FIR (Ext.PW-1/A) and other medical record have been proved on record by the Claimant. 7. Having said so, the findings recorded by the Tribunal under issue No.1 are set aside and it is held that the driver of the offending vehicle had driven the offending vehicle rashly and negligently and had caused the accident, in which the claimant had sustained injuries. 8. Before Issue No.2 is dealt with, I deem it proper to deal with issues No.3, 4 and 5. 9. Onus to prove issue No.3 was on the driver of the offending vehicle, which he has failed to discharge. It has not been proved on the record that the claim petition was bad for non-joinder and mis-joinder of necessary parties. Therefore, the said issue is decided in favour of the claimant and against the respondents. 10. To prove issue No.4, the insurer had to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence, has not led any evidence. The driving licence has been proved on the record as Ext.RA, which discloses that the driver of the offending vehicle was having a valid and effective driving licence at the relevant point of time. Accordingly, this issue is also decided in favour of the claimant and against the respondent-insurer. 11. The driving licence has been proved on the record as Ext.RA, which discloses that the driver of the offending vehicle was having a valid and effective driving licence at the relevant point of time. Accordingly, this issue is also decided in favour of the claimant and against the respondent-insurer. 11. In regard to issue No.5, it was for the insurer to prove that the insured had committed breach of the terms and conditions of the insurance policy read with the mandate of Sections 147 to 149 of the Act, has not led any evidence. There is nothing on the file which can be made the basis for holding that the owner has committed willful breach of the conditions contained in the insurance policy. Accordingly, this issue is also decided in favour of the claimant and against the insurer. 12. Coming to issue No.2, the claimant has proved on record, by way of documents i.e. medical bills (Ext.P-1 to P-14), disability certificate (Ext.PW-5/B/Mark-A), discharge slip (Ext.PW-5/A) that he remained admitted in the hospital for 10 days and was under treatment. Therefore, I deem it proper to exercise guess work while taking into consideration the documents on the file and award Rs.25,000/- under the head ‘treatment’, Rs.25,000/- for the pain and sufferings undergone and Rs.10,000/- for the disability suffered by the claimant. 13. In view of the findings returned on issues No.3 to 5, the insurer is saddled with the liability. 14. Having said so, the impugned award is set aside, the appeal is allowed and the claimant is held entitled to a sum of Rs.60,000/-, as detailed above, with interest at the rate of 8% per annum from the date of the Claim Petition till realization. The insurer is directed to deposit the entire amount within a period of six weeks from today and on deposit, the Registry is directed to release the same in favour of the claimant forthwith. 15. The appeal stands disposed of accordingly.