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2015 DIGILAW 1324 (HP)

Tulsi Ram v. Veena Devi

2015-09-18

MANSOOR AHMAD MIR

body2015
Judgment : Mansoor Ahmad Mir, Chief Justice. Both these appeals are arising out of the same accident and the issue involved is also the same, hence taken up together for disposal. 2. In fact, the Motor Accident Claims Tribunal Bilaspur, hereinafter referred to as “the Tribunal” for short, had made two separate awards on the same date i.e. on 1.4.2006 in MAC Case No. 42 of 2002, which became subject matter of FAO No. 215 of 2006 titled Tulsi Ram Thakur versus Smt. Mohinder Kaur and others and MAC case No. 43 of 2002 titled Smt. Veena Rani and others versus Man Mohan and others, which became subject matter of FAO No. 216 of 2006 before this Court. Both these appeals alongwith Cross objections No. 137 of 2007 filed in FAO No. 215 of 2006 were taken up by this Court for hearing on 7.3.2014 and after hearing the parties, both the appeals were remanded to the Tribunal. It is apt to reproduce paras 6 to 9 of the judgment dated 7.3.2014 passed in FAOs No. 215 and 216 of 2006, herein. “6. In the given circumstances, I deem it proper to remand the case only for the purpose of providing two opportunities to the appellant herein to lead evidence in rebuttal and in support of the pleadings contained in para 24 of the reply/objections and it is for the Tribunal to determine whether driver, namely, Deep Ram @ Kala was driving the offending vehicle at the relevant point of time or Sh. Manmohan Singh, particulars of whom have been given in para 24 of the reply/objections, filed to the claim petitions. It is further for the Tribunal to determine whether owner, after leading evidence has committed any willful breach in terms of the provisions of Sections 147 and 149 of the Motor Vehicles Act and whether right of recovery is to be granted to the insurer National insurance Company/respondent No. 6 herein.” 7. As a consequence, both the appeals are remanded to the Tribunal below on this limited issue. The Tribunal is directed to conclude the trial of both the cases within three months from today and pass appropriate orders. 8. As a consequence, both the appeals are remanded to the Tribunal below on this limited issue. The Tribunal is directed to conclude the trial of both the cases within three months from today and pass appropriate orders. 8. The impugned awards, so far as these relate to holding driver Deep Ram @ Kala, has caused the accident, and the right of recovery, are set aside and shall remain subject to the outcome of the findings returned by the Tribunal, in terms of the time frame already mentioned above. It is made clear that the recovery proceedings, already drawn by the insurance Company, as stated by the learned counsel for the insurer, shall remain under eclipse till the decision of the Tribunal. 9. Parties are directed to cause appearance before the Tribunal, Bilaspur, HP on 31st March, 2014. Both the appeals along with cross-objections are disposed of accordingly.” 3. The claim petitions, after remand, came up for consideration before the Tribunal. Owner Tulsi Ram and driver Manmohan Singh Thakur, before the Tribunal stepped into the witness-box and got recorded their statements. After examining the pleadings and the statements of the parties, the Tribunal held that it was Deep Kumar who was driving the vehicle and not Manmohan Singh Thakur respondent No.5 herein. 4. The issue to be determined is whether the findings recorded by the Tribunal are correct? The answer is in negative for the following reasons. 5. The Tribunal, while examining the pleadings and scanning the evidence has held that respondent No. 1 Man Mohan Singh Thakur had not contested the claim petitions and chosen to remain ex parte. The ground taken by the owner-appellant herein that the vehicle was being driven by driver respondent No. 1 Man Mohan Singh Thakur, is afterthought, in order to avoid the liability. It is not known what was the material before the Tribunal to record such a finding. 6. The provisions of the Code of Civil Procedure, for short “CPC are not applicable in the claim petitions. Prima facie findings are to be recorded. The claim petitions were filed in the year 2002 and on 14.1.2005, the appellant has filed the reply and specifically pleaded in para 24 of the reply that the vehicle was being driven by respondent No. 1 Man Mohan Singh Thakur and not Deep Ram. Prima facie findings are to be recorded. The claim petitions were filed in the year 2002 and on 14.1.2005, the appellant has filed the reply and specifically pleaded in para 24 of the reply that the vehicle was being driven by respondent No. 1 Man Mohan Singh Thakur and not Deep Ram. It is apt to reproduce para 24 of the reply herein: “24.The contents of para No. 24 of the claim petition are wrong hence denied. It is wrong that on 10.3.2002, Truck No. HP-51-2274 was being driven by respondent No. 2 It is submitted that replying respondent is quite unknown about respondent No.2 In fact, Sh. Man Mohan Singh Thakur son of Tulsi Ram Thakur R/o Summer Hill, Shimla was deployed as Truck Driver on Truck No. HP-51-2274 and not the respondent No.2. Respondent Man Mohan Singh Truck Driver was having a valid and effective driving licence to drive the heavy vehicle and he was driving the truck No.HP-512274. It is submitted that the accident took place due to rash and negligent driving by the motor cyclist who were overtaking some another vehicle and the Truck driver Man Mohan Singh immediately after this accident went to inform the replying respondent being the owner of vehicle about this accident. In fact, the accident had taken place due to rash and negligent driving by motor cyclist who were descending whereas the truck was fully loaded and ascending in a slow speed. The income shown in the petition is wrong, false and baseless, hence denied……..” 7. Deep Ram driver -respondent No. 2 in the claim petition has also filed reply and stated in para 8 of the reply that he has not caused the accident and it was caused by driver Man Mohan Singh Thakur. He has filed the reply in the year 2005. 8. FIR nowhere contains the name of the driver. Had there been name of the driver in the FIR, the question would have been different. Owner Tulsi Ram and driver Deep Ram have admitted that it was Man Mohan Singh Thakur, who was driving the vehicle at the relevant point of time. 9. It was for the insurer to lead evidence to prove that Man Mohan Singh Thakur was not driving the vehicle and the vehicle was being driven by Deep Ram. No such evidence was led by the insurer. 9. It was for the insurer to lead evidence to prove that Man Mohan Singh Thakur was not driving the vehicle and the vehicle was being driven by Deep Ram. No such evidence was led by the insurer. How can the insurer be exonerated from the liability. 10. Having said so, the Tribunal has fallen in an error in determining the issue in such a manner. The Tribunal has determined the issue as if it was determining a criminal case or the civil suit. In civil cases, proof of preponderance of probabilities is required and in criminal cases, proof beyond reasonable doubt is required. 11. In the instant case, while determining the claim petition, prima facie proof is required and when there is pleadings by owner and driver Deep Ram, how can it be said that the defence taken is after thought. 12. Thus, the findings recorded by the Tribunal are set aside and it is held that the owner has not committed any breach. The insurer is saddled with the liability and right of recovery granted by the Tribunal is set aside. 13. Accordingly, the impugned awards are modified and the insurer is saddled with the entire liability without right of recovery. 14. Both the appeals are disposed of alongwith pending applications, if any, and the impugned awards are modified, as indicated hereinabove. 15. The insurer is directed to deposit the entire amount, if not already deposited, within eight weeks from today in the Registry. The Registry, on deposit, is directed to release the amount in favour of the claimants, strictly in terms of the conditions contained in the impugned award, through payees’ cheque account, after proper verification. 16. Send down the record forthwith, after placing a copy of this judgment.