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2015 DIGILAW 1453 (HP)

Kaushlya Devi v. Dev Raj

2015-10-09

MANSOOR AHMAD MIR

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Judgment : Mansoor Ahmad Mir, Chief Justice (Oral) Challenge in this appeal is to the judgment and award, dated 22.12.2008, made by the Motor Accident Claims Tribunal, Bilaspur, H.P. (for short "the Tribunal") in M.A.C. No. 32 of 2006, titled as Kaushlya Devi and others versus Sh. Dev Raj and others, whereby the claim petition filed by the appellants-claimants came to be dismissed (for short "the impugned award"). 2. The claimants had invoked the jurisdiction of the Tribunal in terms of the mandate of Section 166 of the Motor Vehicles Act, 1988 (for short "the MV Act") seeking compensation to the tune of Rs.20,00,000/, as per the breakups given in the claim petition on the ground that they became the victims of the motor vehicular accident which was caused by the driver, namely Shri Dev Raj, while driving bus, bearing registration No. HP238137, on 14.03.2006, at about 2.30 P.M.,at place Vijaypur, Tehsil Ghumarwin, District Bilaspur, rashly and negligently. 3. The respondents in the claim petition resisted the same on the grounds taken in the respective memo of objections. 4. Following issues came to be framed by the Tribunal on 22.11.2007: "1. Whether late Shri Deepak Dhiman (deceased) had died on account of injuries sustained by him on 14.03.2006, at about 2.30 P.M. at place Vijaypur Mor, Tehsil Ghumarwin, District Bilaspur, H.P. due to the rash and negligent driving of bus No. HP238137 being driven by respondent No. 1, as alleged? OPP 2. If issue No. 1 is proved in affirmative, to what amount of compensation, the petitioners are entitled to and from whom? OPP 3. Whether this petition is bad for nonjoinder of necessary parties? OPR3 4. Whether the offending bus and motorcycle No. HP23 A0674 involved in the accident were being driven by respondent No. 1 and the deceased respectively without valid driving licence at the relevant time? OPR3 & 5 5. Whether the accident had taken place on account of the contributory negligence of the deceased (Shri Depak Dhiman)? OPR3 6. Whether the offending bus was being plied at the relevant time without valid documents in contravention of provisions of Motor Vehicles Act? OPR3 7. Relief." 5. It appears that the claimants have amended the claim petition thrice and have arrayed the insurers of both the vehicles involved in the accident. 6. Parties have led evidence. OPR3 6. Whether the offending bus was being plied at the relevant time without valid documents in contravention of provisions of Motor Vehicles Act? OPR3 7. Relief." 5. It appears that the claimants have amended the claim petition thrice and have arrayed the insurers of both the vehicles involved in the accident. 6. Parties have led evidence. After scanning the evidence, the Tribunal, decided issue No. 1 and held that the claimants have failed to prove that the driver, namely Shri Dev Raj, had driven the offending bus rashly and negligently and accordingly, dismissed the claim petition without returning findings on issues No. 2 to 6. 7. It is unfortunate that the Tribunal has determined the claim petition as if it was hearing a civil suit. 8. It is beaten law of land that the claim petitions are to be determined, as early as possible, that too, on the touchstone of preponderance of probabilities and not beyond the reasonable doubts, as in criminal cases. 9. Chapters X, XI and XII of the MV Act are really social legislation and its aim and object is to reach to the victim of a traffic accident. The legislature thought it proper to remove all technicalities and even to delete the limitation provision from the statute enabling the claimants to receive compensation. Sections 168 and 169 contained in Chapter XII of the MV Act specifically provide that the claim petition should be tried summarily and provisions of CPC are not applicable. Only some of the provisions are applicable, which are made applicable in terms of the Himachal Pradesh Motor Vehicles Rules, 1999 (for short "the Rules"). 10. The MV Act has gone through a sea change in the year 1994 by amendment in terms of Act 54 of 1994. Amendment was made in Sections 158 and 166 of the MV Act, which mandates that even the report of the police officer can be treated as a claim petition. 11. I have gone through the evidence recorded and am of the considered view that the claimants have proved that the driver of the offending bus had driven the bus rashly and negligently at the time of the accident. Moreover, PW3, namely Shri Rajesh Kumar, has stated that the driver of the bus hit the same with the motorcycle. He was the eyewitness of the accident. Moreover, PW3, namely Shri Rajesh Kumar, has stated that the driver of the bus hit the same with the motorcycle. He was the eyewitness of the accident. The way the Tribunal has believed the testimony of the driver Dev Raj, who appeared as RW1, disbelieving the statement of PW3, is suggestive of the fact that the learned Judge has decided the claim petition as a civil suit. 12. The Tribunal has disbelieved the statement of PW3 and has relied upon the statement of the driver taking a clue from the FIR, Ext. PW2/A, which is not tenable. 13. It is worthwhile to record herein that the final report in terms of Section 173 of the Code of Civil Procedure (for short "CrPC") has been filed by the investigating agency, i.e. P.S. Sadar, Bilaspur, under Sections 279 and 304A of the Indian Penal Code (for short "IPC") before the Court of competent jurisdiction against Dev Raj, i.e. the driver of the bus, is suggestive of the fact that the investigating agency has come to the conclusion that the driver of the bus had driven the bus rashly and negligently. The copy of the said final report has been produced in the open Court by the learned counsel for respondent No. 5, made part of the file. Thus, the question of the motor cycle being driven in a rash and negligent manner does not arise. 14. Having said so, I am of the considered view that the claimants have, prima facie, proved that Des Raj had driven the bus rashly and negligently at the time of the accident. Accordingly, the findings returned by the Tribunal on issue No. 1 are set aside and the same is decided in favour of the claimants and against the respondents. 15. The claim petition is not suffering from misjoinder and nonjoinder of necessary parties. Accordingly, issue No. 3 is decided in favour of the claimants and against the respondents. 16. Mr. B.M. Chauhan, learned counsel appearing on behalf of respondent No. 3, stated at the Bar that the case be remanded for determination of other issues. It will be travesty of justice in case the compensation is not determined. Accordingly, issue No. 3 is decided in favour of the claimants and against the respondents. 16. Mr. B.M. Chauhan, learned counsel appearing on behalf of respondent No. 3, stated at the Bar that the case be remanded for determination of other issues. It will be travesty of justice in case the compensation is not determined. May be the issues as to whether who is liable and whether the insurer of the bus has a right of recovery can be determined by the Tribunal on remand, but keeping in view the aim and object of granting compensation, I deem it proper to determine the compensation herein: 17. It has been averred that the age of the deceased was 32 years of age at the time of the accident. In terms of the matriculation certificate, Ext. R1, also, the age of the deceased was 32 years. It has been pleaded in the claim petition that the deceased was a businessman & LIC agent and was earning Rs.30,000/per month at the relevant point of time. 18. The claimants are the dependents of the deceased. Keeping in view the fact that the deceased was young and in budding age, by guess work, it can safely be said and held that the deceased was earning not less than Rs.6,000/per month. One fourth is to be deducted towards his personal expenses in view of the ratio laid down by the Apex Court in the case titled as Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 and upheld by a larger Bench of the Apex Court in the case titled as Reshma Kumari & others versus Madan Mohan and another, reported in 2013 AIR SCW 3120. Thus, the claimants have lost source of dependency to the tune of Rs. 4,500/per month. 19. The multiplier of 15' is to be applied in view of the Second Schedule appended with the MV Act read with the ratio laid down by the Apex Court in Sarla Verma's case (supra) and upheld by a larger Bench of the Apex Court in Reshma Kumari's case (supra). 20. Accordingly, the claimants are held entitled to compensation to the tune of Rs.4,500/x 12 x 15 = Rs.8,10,000/. The factum of insurance of the bus is admitted. 20. Accordingly, the claimants are held entitled to compensation to the tune of Rs.4,500/x 12 x 15 = Rs.8,10,000/. The factum of insurance of the bus is admitted. Thus, the insurer of the bus is directed to satisfy the awarded amount with a right to take all the defence available to it before the Tribunal. 21. The Tribunal is directed to assess as to whether the owner-insured of the bus has committed any willful breach, which entitles the insurer of the bus to right of recovery, within two months with effect from 02.11.2015. 22. Parties are directed to cause appearance before the Tribunal on 02.11.2015. It is made clear that the parties shall not lead any further evidence. 23. Send down the record after placing copy of the judgment on Tribunal's file.