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2015 DIGILAW 1794 (HP)

Himachal Road Transport Corporation v. Nisha Devi

2015-12-04

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is judgment and award, dated 22.03.2011, made by the Motor Accident Claims Tribunal-II, Kangra at Dharamshala, (H.P.) (for short "the Tribunal") in M.A.C.P. No. 13N/2006, titled as Nisha Devi and others versus H.R.T.C. and others, whereby compensation to the tune of Rs. 19,72,100/with interest @ 9% per annum from the date of filing of the petition till its realization came to be awarded in favour of the claimants and the appellants herein and the insurer of the offending truck were saddled with liability in equal shares (for short "the impugned award"). 2. The claimants, the driver of the offending bus, the owners and the insurer of the offending truck have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. It is apt to record herein that the Tribunal has directed the appellants, i.e. the owner insured of the offending bus, and the insurer of the offending truck, i.e. National Insurance Company Limited, to satisfy the impugned award in equal shares. The insurer of the offending truck has not questioned the impugned award. 4. Learned counsel for the appellants argued that the driver of the HRTC bus was not negligent in any way and the entire liability was to be fastened upon the insurer of the offending truck. The argument of the learned counsel for the appellants is devoid of any force for the following reasons: 5. The claimants filed claim petition before the Tribunal for grant of compensation to the tune of Rs. twenty lacs, as per the breakups given in the claim petition, was resisted by all the respondents by the medium of the replies. 6. Following issues came to be framed by the Tribunal on 07.06.2008: "1. Whether deceased Kamal Kishore was traveling in the offending bus HP-38A-6060 owned by the respondent No. 1 and 2 and was being driven by respondent No. 3 in a rash and negligent manner and he had struck it against truck No. RJ-07G-3331 owned by respondent No. 4 and one Rameshwar the predecessor-in-interest of the respondents No. 6 to 8 thereby causing death of the deceased Kamal Kishore? OPP 2. If issue No. 1 is proved in affirmative whether the petitioners being legal heirs of the deceased are entitled to compensation from the respondents? OPP 2. If issue No. 1 is proved in affirmative whether the petitioners being legal heirs of the deceased are entitled to compensation from the respondents? If so, to what amount and who is liable to pay the same to the petitioners? OPP 3. Whether the petition is not maintainable in the present form, as alleged? OPR-1 to 3 & 5. 4. Whether the act and conduct of the petitioners are bar to the present petition, as alleged? OPR-1 to 3 5. Whether the accident had taken place due to the wrong act and conduct of the deceased driver Rameshwar of Truck No. RJ-07G-3331? If so its effect? OPR- 1 to 3 6. Whether respondent No. 5 has been misjoined as party in this petition as alleged? OPR5 7. Whether the petition is collusive in between the petitioners and respondents No. 1 to 3, 4 and 6 to 8, as alleged? OPR5 8. Whether the deceased Rameshwar driver of truck No. RJ-07G-3331 was not holding proper and valid driving license to drive the vehicle on the day of accident and had violated terms and conditions of the insurance policy, as alleged? If so, its effect? OPR-5 9. Whether the offending truck RJ-07G-3331 was being plied by its owner in violation of the provisions of M.V. Act and this Tribunal has no jurisdiction to entertain the petition, as alleged? OPR5 10. Relief." 7. Parties have led evidence. 8. The Tribunal after scanning the evidence, oral as well as documentary, held that Kamal Kishore, who was travelling in the bus, bearing registration No. HP-38A-6060, became victim of the vehicular accident, which was outcome of the contributory negligence of the drivers of the bus, bearing registration No. HP-38A-6060, and the truck, bearing registration No. RJ-07G-3331. Issues No. 1 and 5: 9. Both these issues are interlinked, thus, are being determined together. 10. The respondents in the claim petition have not led any evidence. The driver of the offending bus, namely Shri Karnail Singh, appeared in the witness box as RW2, who was not able to prove that he was not driving the offending bus rashly and negligently at the time of the accident. 11. The co owner of the offending truck, namely Shri Kishan Lal, also appeared in the witness box as RW1 and tried to avoid the liability, but of no use. 12. 11. The co owner of the offending truck, namely Shri Kishan Lal, also appeared in the witness box as RW1 and tried to avoid the liability, but of no use. 12. The Tribunal, after discussing the evidence, has rightly decided issues No. 1 & 5 and held that the claimants have proved that the deceased had died due to the contributory negligence of the drivers of both the offending vehicles, needs no interference. Accordingly, the findings returned by the Tribunal issues No. 1 and 5 are upheld. 13. Before I deal with issue No. 2, I deem it proper to determine issues No. 3, 4 and 6 to 9. Issues No. 3, 4 and 6 to 9: 14. It was for the respondents in the claim petition to discharge the onus, have not led any evidence to discharge the same. Even otherwise, the findings returned by the Tribunal on the said issues have not been questioned. Accordingly, the findings returned by the Tribunal on issues No. 3, 4 and 6 to 9 are upheld. Issue No. 2: 15. I have gone through the assessment made by the Tribunal. The amount awarded is adequate, cannot be said to be excessive in any way. 16. The Tribunal has rightly held that the accident was outcome of the contributory negligence of the drivers of both the offending vehicles and directed the appellants and the insurer of the offending truck to satisfy the award in equal shares. Thus, the findings on issue No. 2 are also upheld. 17. It appears that the appellants have filed this appeal in order to delay the payment of compensation to the claimants, who are sufferers. 18. Having said so, the appellants have not been able to carve out a case for interference. Viewed thus, the impugned award merits to be upheld and the appeal is to be dismissed. Accordingly, the impugned award is upheld and the appeal is dismissed. 19. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award after proper identification. 20. Send down the record after placing copy of the judgment on Tribunal's file.