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2015 DIGILAW 1650 (HP)

Oriental Insurance co. Ltd. v. Rakesh Kumar

2015-11-06

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. A vehicular accident, occurred on 5.6.2004 at Kawara (Chamoda) Tehsil Kumarsain, has given birth to these appeals, in which insurer has questioned the two awards, dated 19.7.2008, passed by the Motor Accident Claims Tribunal, Shimla, hereinafter referred to as “the Tribunal” in MACT No. 8-S/2 of 2006/04 and MACT No. 6-S/2 of 2006/04 titled Rakesh Kumar and others versus Dinesh Kumar and another, for short “the impugned Awards”. 2. The award passed in MACT No. 8-S/2 of 2006/04 is subject matter of FAO No. 567 of 2008 and award passed in MACT No. 6-S/2 of 2006/04 is subject matter of FAO No. 568 of 2008. 3. The claimants in MACT No. 8-S/2 of 2006/04, subject matter of FAO No. 567 of 2008 are the sons of Smt. Hem Lata, who died in the said accident, which was allegedly caused by driver, namely, Khima Ram while driving vehicle Matiz Car No.30-9090 and claimants in MACT No. 6-S/2 of 2006/04, subject matter of FAO No. 568 of 2008 are the parents of Baby Dikshita who also died in the said accident. 4. The claimants have claimed compensation to the tune of Rs.15 lacs and Rs.10 lacs respectively, as per the break-ups given in the claim petitions. 5. The claim petitions were resisted and contested by the respondents and following issues came to be framed. MACT 8-S/2 of 2006/04. (i) Whether on 5.6.2004 at Kawara, Sh. Khima Ram was driving Car No. HP-30-9090 rashly and negligently and as such caused death of Smt. Hem Lata? OPP. (ii) If issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled and from whom? OPP. (iii) Whether the driver of car NO. HP-30-9090 was not having a valid and effective driving licence at the time of accident? OPR. (iv) Whether the vehicle was being driven in violation of the terms and conditions of the policy? OPR (v) Relief. MACT 6-S/2 of 2006/04. (i) Whether on 5.6.2004 at Kawara, Sh. Khima Ram was driving Car No. HP-30-9090 rashly and negligently and as such caused death of Baby Dikshita? OPP. (ii) If issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled and from whom? OPP. (iii) Whether the driver of car No. HP-30-9090 was not having a valid and effective driving licence at the time of accident? OPR. OPP. (ii) If issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled and from whom? OPP. (iii) Whether the driver of car No. HP-30-9090 was not having a valid and effective driving licence at the time of accident? OPR. (iv) Whether the vehicle was being driven in violation of the terms and conditions of the policy? OPR (v) Relief. 6. The claimants have examined four witnesses. The insurer has not examined any witness. However, Dinesh Kumar respondent No.1 appeared in the witness-box as RW1. 7. Virtually, the evidence led by the claimants has remained un-rebutted. The copy of FIR Ext. PW1/A and Post Mortem report Mark-X are on record, which do disclose that the driver had driven the offending vehicle rashly and negligently. The respondents have failed to prove that the accident was not caused by the driver or the driver was not negligent while driving the said vehicle. 8. The claim petitions are 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. The State of Himachal Pradesh has also framed the Himachal Pradesh Motor Vehicles Rules, 1999 (for short "the Rules") in terms of Sections 169 and 176(b) of the Motor Vehicles Act, and only some of the provisions of the Code of Civil Procedure have been made applicable. 9. The mandate of Chapter XI of the Motor Vehicles Act provides for the grant of compensation to the victim without succumbing to the niceties and technicalities of procedure. It is beaten law of the land that technicalities or procedural wrangles and tangles have no role to play. 10. My this view is fortified by the judgment delivered by the apex court in Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another, reported in (2013) 10 Supreme Court Cases 646, N.K.V. Bros. (P.) Ltd. versus M. Karumai Ammal and others etc., reported in AIR 1980 Supreme Court 1354 and Oriental Insurance Co. versus Mst. Zarifa and others, reported in AIR 1995 Jammu and Kashmir 81. 11. This Court has also laid down the similar principles of law in FAO No. 692 of 2008 decided on 4.9.2015 titled Cholamandlan MS General Insurance Co. (P.) Ltd. versus M. Karumai Ammal and others etc., reported in AIR 1980 Supreme Court 1354 and Oriental Insurance Co. versus Mst. Zarifa and others, reported in AIR 1995 Jammu and Kashmir 81. 11. This Court has also laid down the similar principles of law in FAO No. 692 of 2008 decided on 4.9.2015 titled Cholamandlan MS General Insurance Co. Ltd. Versus Smt. Jamna Devi and others, FAO No. 287 of 2014 along with connected matter, decided on 18.9.2015 titled Tulsi Ram versus Smt. Mena Devi and others, FAO No. 72 of 2008 along with connected matter decided on 10.7.2015 titled Anil Kumar versus Nitim Kumar and others and FAO No. 174 of 2013 decided on 5.9.2014 titled Kusum Kumari versus M.D. U.P Roadways and others. 12. Having said so, the Tribunal has rightly held that the driver of the offending vehicle was driving the vehicle rashly and negligently. Accordingly, the findings so returned by the Tribunal are upheld. 13. Before I deal with issue No.2, I deem it proper to deal with issues No. 3 and 4 at the first instance. The respondents had to discharge the onus, failed to led any evidence and the findings returned on these issues have not been questioned by the respondents. Thus, the findings returned on these issues are upheld. 14. Coming to Issue No.2. In MACT No. 8-S/2 of 2006/04, the Tribunal has awarded Rs.2,30,000/- with interest @ 7.5% per annum, which is too meager, for the simple reason that the claimants are the sons of deceased mother Smt. Hem Lata, who died in the accident, at the age of 46 years, have lost love, affection and care of their mother. Virtually, they stand deprived of their home. The Tribunal has assessed her income at Rs.1500/- per month and held that the claimants have lost source of dependency to the tune of Rs.18,000/- per annum and applied the multiplier of “11”. The amount awarded is otherwise too meager. However, the claimants have not questioned the same accordingly, the same is maintained. 15. In MACT No. 6-S/2 of 2006/04, parents of the claimants have lost their daughter Babi Dikshita, who was two years of age at the time of accident and Rs. 1 lac in lump sum was awarded, which is also too meager. However, the claimants have not questioned the same. 15. In MACT No. 6-S/2 of 2006/04, parents of the claimants have lost their daughter Babi Dikshita, who was two years of age at the time of accident and Rs. 1 lac in lump sum was awarded, which is also too meager. However, the claimants have not questioned the same. Having said so, the amount awarded is upheld and both the appeals are dismissed. 16. The factum of insurance is not in dispute. Thus, the insurer has to satisfy. 17. The insurer is directed to deposit the amount, if not already deposited, in both the appeals 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 Registry is directed to release the entire amount in favour of the claimants, strictly in terms of the conditions contained in the impugned awards, through payees’ cheque account. 18. Both the appeals are accordingly disposed of. 19. Send down the record forthwith, after placing a copy of this judgment.