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2015 DIGILAW 1185 (HP)

Subhash Chand v. Subhash Chand

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 31.7. 2008, made by the Motor Accident Claims Tribunal, Bilaspur in M.A.C. No. 15 of 2006, titled Subhash Chand versus Subhash Chand and others, whereby the claim petition was dismissed, hereinafter referred to as “the impugned award”, for short. 2. It appears that the claimant had invoked the jurisdiction of the Motor Accident Claims Tribunal, Bilaspur, for the grant of compensation to the tune of Rs.4 lacs, as per the break-ups given in the amended claim petition. 3. The claim petition was resisted and contested by the respondents and following issues came to be framed. (i) Whether the petitioner had sustained injuries on 23.2.2005 at about 11.30 A.M. at place near Slapper Bridge, District Bilaspur, H.P. due to the rash and negligent driving of Van No.HP-31-6889 being driven by respondent NO.1, as alleged? OPP (ii) If issue No. 1 is proved in affirmative, to what amount of compensation, the petitioner is entitled to an from whom? ….OPP (iii) Whether the accident had taken place as a result of contributory negligence of Sh. Subhash Chand, driver of Van NO.HP-31-6889 and driver of Scooter No.HP31-1720 as alleged? OPR-2. (iv) Whether the drivers of both the vehicles, i.e. Maruti Van No.HP-31-6889 and Scooter No.HP-31-1720 involved I the accident, were not having valid and effective driving license as alleged? OPR-2. (v) Whether Van No. HP-31-6889 was being plied without valid documents as alleged? OPR-2 (vi) Relief. 4. The claimant has led evidence. Owner and driver has also stepped into the witness-box. 5. The claimant has also produced the documents, the details of which are given in Form- A appended to the impugned award. The claimant has specifically averred that the driver Subhash Chand has driven the offending vehicle rashly and negligently and has led evidence to that effect but the Tribunal has rejected the claim petition on the ground that the claimant has not proved his case beyond reasonable doubt. The Tribunal has decided the said issue illegally and has fallen in an error while determining the claim petition. The strict proof, as per the mandate of the Evidence Act and the Code of Civil Procedure is not applicable. The claim petitions have to be decided on the preponderance of probabilities and prima facie proof is sufficient. 6. The Tribunal has decided the said issue illegally and has fallen in an error while determining the claim petition. The strict proof, as per the mandate of the Evidence Act and the Code of Civil Procedure is not applicable. The claim petitions have to be decided on the preponderance of probabilities and prima facie proof is sufficient. 6. It is apt to record herein that the law on motor accidents claims has gone through the see change. Even copy of FIR can be treated as claim petition, under Sections 158 (6) and 166 (4) of the Motor Vehicles Act, for short “the Act”. The copy of FIR Ext. PW1/A is on the record, which do disclose that the FIR was lodged against the driver. The evidence led by the claimant has remained unrebutted. The respondents have not denied the pleadings contained in the claim petition specifically. 7. Having said so, the findings returned on issues No. 1 are set aside and it is held that the driver had driven the offending vehicle rashly and negligently and has caused the accident, wherein the claimant has sustained injuries. 8. I deem it proper to deal with issues No. 3 to 5 before I deal with issue No.2. In view of the finding on issue No. 1 there is no need to determine issue No. 3. Accordingly, issue No. 3 is decided against respondent No.2. 9. Respondent No. 2 has not led evidence to discharge the onus and has failed to prove that the driver was not having a valid and effective driving license. Respondent No. 2- insurer has also not led evidence, has failed to discharge the onus on issues No. 4 and 5. Accordingly, both these issues are decided in favour of the claimant and against the insurer. 10. Now coming to issue No. 2. The factum of insurance is admitted and the insured has admitted that the claimant has sustained injuries and was admitted in the hospital. The claimant has placed on record medical bills Ext. PW2/A which are at pages 55 to 79 of the record which do disclose that the claimant remained hospitalized from 23.2.2005 to 24.2.2005 and has suffered pain and sufferings and was attended upon by the attendant in the hospital. He was made to suffer agony and pain. The claimant has placed on record medical bills Ext. PW2/A which are at pages 55 to 79 of the record which do disclose that the claimant remained hospitalized from 23.2.2005 to 24.2.2005 and has suffered pain and sufferings and was attended upon by the attendant in the hospital. He was made to suffer agony and pain. The disability certificate is Mark-A, which also do disclose that the claimant has sustained injuries and suffered temporary disablement. 11. In the given circumstances, a guess work is required to be made and it is held that the claimant is entitled to Rs.12803/ under the head “medical expenses”, Rs.50,000/- under the head “pain and suffering”, Rs.15000/- under the head “special diet” and Rs.25000/- under the head “loss of amenities of life”. 12. Having said so, the claimant is entitled to Rs.12803+Rs.50,000/-+ Rs.15000/-+Rs.25000/-, total Rs.1, 02,803/- 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. 13. 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 claimant, through payees’ cheque account. 14. Accordingly, the appeal is allowed and the impugned award is set aside. Send down the record forthwith, after placing a copy of this judgment.