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2015 DIGILAW 1456 (HP)

Chaman Lal v. Rukmi Devi

2015-10-09

MANSOOR AHMAD MIR

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Judgment : Mansoor Ahmad Mir, Chief Justice (oral) This appeal is directed against the award, dated 1st May, 2008, passed by the Motor Accident Claims Tribunal-II, Sirmaur District at Nahan, (for short, the Tribunal) in M.A.C. Petition No.26/N/2 of 2004, titled Rukmi Devi and another vs. Mahi Pal and others, whereby compensation to the tune of Rs.1,60,000/-, with interest at the rate of 7.5% per annum from the date of the claim petition till deposit, came to be awarded in favour of the claimants, (respondents No.1 and 2 herein), and the insurer was saddled with the liability, with right of recovery, (for short, the impugned award). 2. The insurer, the driver and the claimants have not questioned the impugned award on any count, thus, the same has attained finality so far as it relates to them. 3. Feeling aggrieved, the owner of the vehicle, namely, Chaman Lal, (original respondent No.2), has filed the instant appeal, laying challenge to the impugned award. 4. During the hearing of the appeal, vide order, dated 14th August, 2015, passed by this Court, Vinod Kumar alias Vicky, son of Shri Satwant Singh, resident of Village Kotla, Post Office Dhundla, Tehsil Bangana, District Una, H.P., who was the actual driver of the offending vehicle, was arrayed as respondent No.6. It is apt to reproduce the order dated 14th August, 2015, as under: “Learned counsel for the appellant argued that the accident was caused by one Shri Vinod Kumar alias Vicky, s/o Shri Satwant Singh, r/o Village Kotla, P.O. Dhundla, Tehsil Bhangana, District Una, H.P., against whom FIR No. 52 of 2004, dated 15.10.2004, was registered at Police Station Shillai, and final report under Sections 279, 337 and 304-A of the Indian Penal Code (for short "IPC") was presented before the Court of competent jurisdiction, i.e. Judicial Magistrate 1st Class, Court No. 2, Paonta Sahib, but he was not arrayed as party-respondent in the array of respondent and the claimants have wrongly shown Shri Sunil Kumar to be the driver of the offending vehicle before the Tribunal. 2. 2. Further argued that thereafter the claimants moved an application under Order 1 Rule 10 of the Code of Civil Procedure (for short "CPC") and Order 6 Rule 17 CPC before the Motor Accident Claims Tribunal-II, Sirmaur District at Nahan (for short "the Tribunal") for arraying said Shri Vinod Kumar as party-respondent in the array of respondents, which was dismissed by the Tribunal on 18.12.2006. The appellant has set the same as a ground in the memo of appeal in para 2 (iii). 3. Learned counsel for the appellant also argued that the said FIR has been taken to its logical end and perhaps said Shri Vinod Kumar has been convicted. He sought time to place on record the copy of the judgment and also to seek instructions. 4 .The moot question is - whether the application filed by the claimants for impleadment of said Shri Vinod Kumar was rightly rejected by the Tribunal or otherwise? 5. It was the duty of the Tribunal to array said Shri Vinod Kumar as a party-respondent in the array of respondents in the claim petition in view of the mandate of Section 158 (6) and 166 (4) of the Motor Vehicles Act, 1988 (for short "the MV Act") read with the fact that the First Information Report is the first information of the accident, in which the name of said Shri Vinod Kumar has been recorded as driver of the offending vehicle and final report has been presented before the Court of competent jurisdiction, which it has failed to do so. 6. Thus, I deem it proper to invoke the powers in terms of Section 105 CPC read with Order 41 Rule 20 CPC. Accordingly, Shri Vinod Kumar alias Vicky, s/o Shri Satwant Singh, r/o Village Kotla, P.O. Dhundla, Tehsil Bhangana, District Una, H.P., is arrayed as party-respondent, shall figure as respondent No. 6 in the array of respondents in the memo of appeal. Registry to carry out necessary correction in the cause title. Amended memo of parties be filed within one week. 7. Issue notice to newly added respondent No. 6 returnable within four weeks on taking steps within one week. Dasti notice also permissible. 8. The Judicial Magistrate 1st Class, Court No. 2, Paonta Sahib, is directed to send the status of the case FIR No. 52 of 2004 of Police Station Shillai, titled as State versus Vinod Kumar.” 5. 7. Issue notice to newly added respondent No. 6 returnable within four weeks on taking steps within one week. Dasti notice also permissible. 8. The Judicial Magistrate 1st Class, Court No. 2, Paonta Sahib, is directed to send the status of the case FIR No. 52 of 2004 of Police Station Shillai, titled as State versus Vinod Kumar.” 5. In pursuance to the aforesaid order passed by this Court, the Judicial Magistrate Ist Class, Court No.2, Paonta Sahib, has sent the status of the criminal case arising out of FIR No.52/2004, dated 15th October, 2004, registered at Police Station Shillai, vide letter dated 26th August, 2015, whereby it has been stated that the criminal case, arising out of the FIR supra, has culminated into conviction of the said Vinod Kumar. It may be placed on record that the FIR No.52/2004 was registered in regard to the accident, subject matter of the present lis. 6. Thus, from the above, it is clear that the Tribunal has fallen in error in dismissing the application under Order 1 Rule 10 CPC and granting the right of recovery in favour of the insurer without determining the fact whether the said Vinod Kumar was having a valid and effective driving licence. 7. As far as the amount of compensation awarded by the Tribunal is concerned, the Tribunal has taken the notional income of the deceased as Rs.15,000/- per annum and has deducted 1/3rd from the said income towards the personal income of the deceased. The learned counsel for the claimants submitted that the Tribunal has fallen in error in deducting 1/3rd amount for the personal expenses of the deceased. 8. The income assessed by the Tribunal, on the face of it, is meager. Notwithstanding that, since the claimants have not questioned the impugned award, therefore, the same is reluctantly upheld. However, the Tribunal has fallen in error in deducting 1/3rd amount towards the personal income of the deceased, which is not consonance with the mandate of Schedule 2 of the Motor Vehicles Act, 1988. 9. Having said so, the income of the deceased is assessed as Rs.15,000/- per annum. The Tribunal has applied the multiplier of 15, which is just and proper. Accordingly, the claimants are held entitled to a sum of Rs.15000 x 15 = Rs.2,25,000/-, alongwith interest as awarded by the Tribunal. 9. Having said so, the income of the deceased is assessed as Rs.15,000/- per annum. The Tribunal has applied the multiplier of 15, which is just and proper. Accordingly, the claimants are held entitled to a sum of Rs.15000 x 15 = Rs.2,25,000/-, alongwith interest as awarded by the Tribunal. In addition to it, the claimants are also held entitled to Rs.10,000/- as litigation costs throughout, payable by the insured. 10. The only question requires adjudication in the present lis is as to who is liable to indemnify the amount of compensation. 11. Accordingly, I deem it proper to remand the Claim Petition to the Tribunal only to determine the following issues: 1. Whether Vinod Kumar (actual driver) was having a valid and effective driving licence at the time of accident? 2. Whether the insured/owner had committed willful breach, on the basis of which the insurer can be absolved from its liability? 12. The Tribunal is directed to decide the above issues within a period of three months from 2nd November, 2015, after issuing notice to the parties including the driver Vinod Kumar aforesaid. Needless to observe, parties be also given time to adduce evidence in order to prove these issues. The parties, through their counsel, are directed to cause appearance before the Tribunal on 2nd November, 2015. 13. Since granting of compensation in vehicular accident cases is a social legislation, I deem it proper to direct the insurer to pay the entire amount of compensation at this stage, of course, subject to the outcome of the findings to be recorded by the Tribunal on the two issues, supra. Ordered accordingly. The amount be deposited within a period of six weeks from today and on deposit, the Registry is directed to release the entire amount, alongwith interest, in favour of the claimants, strictly in terms of the impugned award. The appeal stands disposed of accordingly.