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2015 DIGILAW 1184 (HP)

Chaudhary Ram v. Mohinder Singh

2015-08-28

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is the judgment and award dated 31.10.2008, made by the Motor Accident Claims Tribunal, Bilaspur in M.A.C. No. 19 of 2007, titled Shri Chaudhary Ram and another versus Shri Mohinder Singh and another, whereby the claim petition was dismissed, hereinafter referred to as “the impugned award”, for short. 2. It appears that the claimants had invoked the jurisdiction of the Motor Accident Claims Tribunal, Bilaspur, for the grant of compensation to the tune of Rs.10 lacs, as per the break-ups given in the claim petition, on the ground that the driver, namely, Mohinder Singh has driven Truck No.HP-23-5554 rashly and negligently on 6.2.2007 at 11.40 A.M. Beri Chowk, Police Station Barmana, District Bilaspur, H.P. FIR No. 37 of 2007 under Sections 279 and 337 of the Indian Penal Code was registered against the driver. 3. The claim petition was resisted and contested by the respondents and following issues came to be framed. (i) Whether late Shri Tulsi Ram had died on account of injuries sustained by him in an accident which took place on 6.2.2007 at about 11.40 A.M. near Beri Chowk, P.S. Barmana, District Bilaspur, H.P. due to rash and negligent driving of Truck No. HP-23-5554 being driven by respondent No.1 as alleged? OPP (ii) If 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. 1 was not having a valid and effective driving license at the time of accident ? OPR-2. (iv) Whether the offending Truck was being plied without valid documents at the relevant time? OPR-2. (v) Relief. 4. The claimants have examined three witnesses, namely, H.C. Kishori Lal, Dr. Yuv Raj Shori, Liaq Ram and claimant Chaudhary Ram himself appeared as PW3. Mohinder Singh owner-cum-driver has also stepped into the witness-box and has examined one Smt. Sneh Lata. 5. The Tribunal has held that the claimants have failed to prove that the driver of the offending vehicle was driving the offending vehicle rashly and negligently beyond reasonable doubt. The Tribunal has fallen in an error. It appears that the learned Tribunal was working under misconception of law for the reason that the claim petition has to be determined by applying the principle of preponderance of probabilities and prima facie proof is sufficient. The Tribunal has fallen in an error. It appears that the learned Tribunal was working under misconception of law for the reason that the claim petition has to be determined by applying the principle of preponderance of probabilities and prima facie proof is sufficient. It is also beaten law of the land that the claim petition is to be determined summarily and that is why the Code of Civil Procedure is not applicable. Some of the provisions of Code of Civil Procedure have been made applicable in terms of the provisions of the Rules framed by the Central Government as well as State Government. 6. The claimants have specifically averred that the driver has driven the offending vehicle rashly and negligently. The respondents have filed the reply and in para 13 they have admitted that the accident has taken place but has pleaded that it was not the result of rash and negligent driving of the driver. Further, it is stated that even if it is found that the driver has driven the vehicle rashly and negligently, the insurer is liable to pay the amount. 7. In the given circumstances, driver-cum-owner has admitted the cause of death of the deceased but has evasively denied the rashness and negligence of the driver. There is proof and evidence on record, i.e. copy of FIR Ext. PW1/A, which do disclose that the case was registered against the driver and the driver has faced the trial. 8. Having said so, the claimants have proved issue No. 1 and the findings on issue No. 1 are set aside and it is held that the driver has driven the vehicle rashly and negligently. The issue is thus, decided in favour of the claimants and against the owner/driver and insurer. 9. Before I deal with issue No. 2, I deem it proper to deal with issues No. 3 and 4. The Tribunal has not determined these issues, which are to be determined. It was for the insurer to prove that the driver was not having a valid and effective driving license and owner has committed willful breach, has failed to lead evidence, thus, failed to discharge the onus. Accordingly, issues No. 3 and 4 are decided in favour of the claimants and against the insurer. Having said so, the insurer is held liable to pay the compensation. 10. Issue No.2. Accordingly, issues No. 3 and 4 are decided in favour of the claimants and against the insurer. Having said so, the insurer is held liable to pay the compensation. 10. Issue No.2. Admittedly, deceased was 62 years of age at the time of accident and has pleaded that he was earning Rs.6300-8000/- per month. By a guess work, it can safely be held that the deceased was earning Rs.4500/- per month and 1/3rd was to be deducted. Thus, it is held that the claimants have lost source of dependency to the tune of Rs.3000/- per month and multiplier applicable is “5”. 11. Having said so, the claimants are entitled to Rs.3000x12x5. Rs.1,80,000/- alongwith interest at the rate 7.5% per annum from the date of claim petition till the realization of the same and the insurer is saddled with the liability. 12. The insurer is directed to deposit the amount along with interest from the date of filing of the claim petition till its realization, within six weeks from today in the Registry. On deposit, the entire amount be released to the claimants, through payees’ cheque account. 13. Accordingly, the appeal is allowed and the impugned award is set aside. Send down the record forthwith, after placing a copy of this judgment.