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2015 DIGILAW 1854 (HP)

Rattan Chand alias Ratto v. Neelam Devi

2015-12-11

MANSOOR AHMAD MIR

body2015
JUDGMENT : Mansoor Ahmad Mir, J. Challenge in this appeal is to the judgment and award, dated 28.03.2008, made by the Motor Accident Claims Tribunal, Chamba Division Chamba (HP) (for short "the Tribunal") in M.A.C. Petition No. 48 of 2005, titled as Shri Rattan Chand alias Ratto and another versus Smt. Neelam Devi and another, whereby the claim petition filed by the appellants-claimants came to be dismissed (for short "the impugned award"). 2. In order to determine this appeal, I deem it proper to give a flashback of the case, the womb of which has given birth to the appeal in hand. 3. The appellants-claimants, being the parents of the deceased Joginder Singh, invoked the jurisdiction of the Tribunal for grant of compensation to the tune of Rs. 6,00,000/-, as per the breakups given in the claim petition. 4. It is pleaded in the claim petition that the appellant-claimants became the victim of the motor vehicular accident, which was caused by the driver of the offending vehicle, i.e. Balero Camper, bearing registration No. HP-46-0267, on 14.12.2004, at about 11 P.M. on the way from Bharmour to Pansei, while driving the same rashly and negligently, lost control over the vehicle, which fell down in a nallah and the driver and all the occupants of the vehicle including Joginder Singh sustained injuries and succumbed to the injuries on the spot. Further pleaded that deceased Joginder Singh was 25 years of age at the time of the accident and was earning Rs. 8,000/per month being a skilled carpenter and the parents lost their sole bread earner, which has made their lives miserable. 5. The respondents in the claim petition resisted the claim petition on the grounds taken in the respective memo of replies. 6. Following issues came to be framed by the Tribunal on 17.11.2006:- "1. Whether on 14.12.2004 Shri Joginder Singh died in a vehicular mishap due to rash and negligent driving of vehicle No. HP-46-0267 Bolero Camper by its driver as alleged? OPP 2. If issue No. 1 is proved, to what amount of compensation the petitioners are entitled to and from whom? OPP 3. Whether the petition is not maintainable in the present form as alleged? OPR 1 4. Whether the petitioners have no cause of action and locus standi to file the petition as alleged? OPR 1 and 2 5. OPP 2. If issue No. 1 is proved, to what amount of compensation the petitioners are entitled to and from whom? OPP 3. Whether the petition is not maintainable in the present form as alleged? OPR 1 4. Whether the petitioners have no cause of action and locus standi to file the petition as alleged? OPR 1 and 2 5. Whether the driver of the offending vehicle was not holding valid and effective driving licence at the time of accident as alleged? OPR 2 6. Whether the offending vehicle was being plied in contravention of the conditions of Insurance policy, hence the insurance company is not liable? OPR 2 7. Whether deceased was a gratuitous passenger hence respondent No. 2 is not liable? OPR 2 8. Relief." 7. The claimants have examined MHC Tilak Raj as PW1, Shri Jagdish Chand as PW2 and one of the claimants, namely Smt. Rukko Devi herself appeared in the witness box as PW3. Respondent No. 1Neelam Devi appeared in the witness box and the insurer examined Shri Gian Chand as RW2. 8. After examining the pleadings and the evidence, oral as well as documentary, the Tribunal held that the appellants-claimants have failed to prove that the accident was outcome of rash and negligent driving of the offending vehicle by its driver and thereafter has not returned findings on all other issues. 9. I have perused the record and am of the considered view that the Tribunal has fallen in an error in deciding issue No. 1 for the following reasons: 10. It is pleaded by the claimants that the driver of the offending vehicle had driven the same rashly and negligently at the time of the accident, who too died in the said accident. The factum of accident has not been denied. Even, there is no rebuttal to the same. PW1, MHC Tilak Raj, has proved the contents of FIR No. 65/2004, Ext. PW1/A, which was lodged under Sections 279 and 304A of the Indian Penal Code (for short "IPC"). PW2, Shri Jagdish Chand, has proved the Pariwar Register, Ext. PW2/A. PW3, Smt. Rukko Devi, has also deposed that the accident had occurred. 11. It appears that the Tribunal, while determined the issue, was dealing with a criminal case, not a claim petition. Perhaps, it has lost sight of the standard of proof required in the claim petitions. 12. PW2, Shri Jagdish Chand, has proved the Pariwar Register, Ext. PW2/A. PW3, Smt. Rukko Devi, has also deposed that the accident had occurred. 11. It appears that the Tribunal, while determined the issue, was dealing with a criminal case, not a claim petition. Perhaps, it has lost sight of the standard of proof required in the claim petitions. 12. It is beaten law of land that the Tribunal has to conduct the trial of the claim petitions and determine the same by adopting summary procedure. All the provisions of Civil Procedure Code, 1908 (for short "CPC") and the Indian Evidence Act, 1872 (for short "Evidence Act") are not applicable in terms of Section 169 of the Motor Vehicles Act, 1988 (for short "MV Act"). Section 169 of the MV Act and Rule 232 of the Himachal Pradesh Motor Vehicles Rules, 1999 (for short "the Rules") provide which provisions of CPC are applicable before the Claims Tribunal. 13. Granting of compensation is a welfare legislation and the hypertechnicalities, mystic maybes, procedural wrangles and tangles have no role to play and cannot be made ground to defeat the claim petitions and to defeat the social purpose of granting compensation. 14. My this view is fortified by the judgment of the Apex Court in the case titled as N.K.V. Bros. (P.) Ltd. versus M. Karumai Ammal and others etc., reported in AIR 1980 Supreme Court 1354. It is apt to reproduce relevant portion of para 3 of the judgment herein:- “3. Road accidents are one of the top killers in our country, specifically when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accident Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their “neighbour”. Indeed, the State must seriously consider nofault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parcimony practised by tribunals. We must remember that judicial tribunals are State organs and Art. 41 of the Constitution lays the jurisprudential foundation for state relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Court should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard." (Emphasis Added) 15. The Jammu and Kashmir High Court in the case titled as Oriental Insurance Co. versus Mst. Zarifa and others, reported in AIR 1995 Jammu and Kashmir 81, held that the MV Act is Social Welfare Legislation and the procedural technicalities cannot be allowed to defeat the purpose of the Act. It is profitable to reproduce para 20 of the judgment herein:- “20. Before concluding, it is also observed that it is a social welfare legislation under which the compensation is provided by way of Award to the people who sustain bodily injuries or get killed in the vehicular accident. These people who sustain injuries or whose kith and kins are killed, are necessarily to be provided such relief in a short span of time and the procedural technicalities cannot be allowed to defeat the just purpose of the Act, under which such compensation is to be paid to such claimants.” 16. These people who sustain injuries or whose kith and kins are killed, are necessarily to be provided such relief in a short span of time and the procedural technicalities cannot be allowed to defeat the just purpose of the Act, under which such compensation is to be paid to such claimants.” 16. It would also be profitable to reproduce relevant portion of para 12 of the judgment of the Apex Court in the case titled as Sohan Lal Passi versus P. Sesh Reddy and others, reported in AIR 1996 Supreme Court 2627, herein:- “12. ..................While interpreting the contract of insurance, the Tribunals and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment debtor in respect of the liability in view of subsection (1) of Section 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well known.” 17. The Apex Court in a case titled Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another, reported in (2013) 10 Supreme Court Cases 646 has laid down the same principle and held that strict proof and strict links are not required. 18. The same principle has been laid down by this Court in a series of cases. 19. The Apex Court in a case titled Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another, reported in (2013) 10 Supreme Court Cases 646 has laid down the same principle and held that strict proof and strict links are not required. 18. The same principle has been laid down by this Court in a series of cases. 19. A Single Judge of this Court in FAO No. 127 of 1999, titled as Bimla Devi and others versus Himachal Road Transport Corporation and others, decided on 22.08.2005, held that the claimants have to prove the case by leading cogent evidence and applied the mandate of CPC read with the Evidence Act, was questioned before the Apex Court by the medium of Civil Appeal No. 2538 of 2009, titled as Bimla Devi & Ors. versus Himachal Road Transport Corpn. & Ors., reported in 2009 AIR SCW 4298, and the Apex Court set aside the said judgment and held that strict proof is not required. It is apt to reproduce paras 2 and 12 to 15 of the judgment herein:- "2. This appeal is directed against a judgment and order dated 22.8.2005 passed by the High Court of Himachal Pradesh, Shimla in FAO No. 127 of 1999 whereby and whereunder an appeal preferred against a judgment and award dated 28.10.1998 passed by the Motor Accident Claims Tribunal-II [MACT (I), Nahan] in MAC Petition No. 21NL/2 of 1997, was set aside. xxx xxx xxx 12. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimants predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post mortem report vis-a-vis the averments made in a claim petition. 13. The deceased was a Constable. Death took place near a police station. 13. The deceased was a Constable. Death took place near a police station. The post mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of a constable has taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus stand and near a police station. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body. 14. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate the respondent Nos. 2 and 3. Claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the First Information Report had been lodged in relation to an accident could not have been ignored. Some discrepancies in the evidences of the claimant s witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying burden of proof in terms of the provisions of Section 106 of the Indian Evidence Act as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by the respondent Nos. 2 and 3. 15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties." 20. The claimants have prima facie proved that the driver of the offending vehicle had driven the same rashly and negligently at the relevant point of time, had lost control over the same, which fell down in a nallah and all the occupants of the vehicle alongwith the driver sustained injuries and succumbed to the injuries. Accordingly, it is held that the claimants have proved issue No. 1 and the same is decided in favour of the claimants and against the respondents. 21. Before I deal with issue No. 2, I deem it proper to determine issues No. 3 to 7. Issue No. 3: 22. It was for respondent No. 1 to prove that the claim petition was not maintainable, has not led any evidence to prove the same. It is an admitted case that the accident has taken place and FIR has been lodged. 23. 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. 24. Viewed thus, issue No. 3 is decided against respondent No. 1 and in favour of the claimants. Issue No. 4: 25. It was for both the respondents to discharge the onus, have not led any evidence, thus, have failed to prove that claimants have no locus. The appellants-claimants have lost their budding son, who was their only source of income, hope and help in their old age. Thus, they have every cause and locus to invoke the jurisdiction of the Tribunal in terms of Section 166 of the MV Act. Accordingly, issue No. 4 is decided against the respondents and in favour of the claimants. Issue No. 5: 26. Thus, they have every cause and locus to invoke the jurisdiction of the Tribunal in terms of Section 166 of the MV Act. Accordingly, issue No. 4 is decided against the respondents and in favour of the claimants. Issue No. 5: 26. It was for the insurer-respondent No. 2 to prove that the driver of the offending vehicle was not having a valid and effective driving licence to drive the same. RW2, Shri Gian Chand, Branch Manager, Oriental Insurance Company Limited Chamba, though, has deposed that the driver of the offending vehicle was not having a valid and effective driving licence because his licence was valid for 'non transport vehicle' only, however, the driving licence of the driver of the offending vehicle is on the record as Ext. RW2/ B, the perusal of which does disclose that the driver of the offending vehicle was having a licence to drive 'LMV'. 27. The Apex Court and this Court in a series of cases have held that a vehicle, the gross vehicle weight of which does not exceed 7500 kilograms, falls within the definition of 'LMV'. In terms of the insurance policy, Ext. RW2/A, the gross vehicle weight of the offending vehicle does not exceed 7500 kilograms, thus, is a light motor vehicle. 28. Having said so, it can safely be said and held that the driver of the offending vehicle was having a valid and effective driving licence to drive the same. Accordingly, issue No. 5 is decided against the insurer-respondent No. 2 and in favour of the claimants and respondent No. 1. Issue No. 6: 29. It was for the insurer to plead and prove that the owner-insured of the offending vehicle has committed willful breach and the vehicle was being driven in contravention of the terms and conditions contained in the insurance policy. The insurance policy is on the record as Ext. RW2/A. The factum of insurance is not in dispute. 30. The Apex Court in the case titled as National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004 Supreme Court 1531, has laid down the principles, how can insurer avoid its liability. It is apt to reproduce relevant portion of para 105 of the judgment herein:- “105. ..................... (i) ......................... (ii) ........................ 30. The Apex Court in the case titled as National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004 Supreme Court 1531, has laid down the principles, how can insurer avoid its liability. It is apt to reproduce relevant portion of para 105 of the judgment herein:- “105. ..................... (i) ......................... (ii) ........................ (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in subsection (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v)......................... (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insured under Section 149(2) of the Act.” 31. It would also be profitable to reproduce para 10 of the judgment rendered by the Apex Court in Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217, herein:- “10. It would also be profitable to reproduce para 10 of the judgment rendered by the Apex Court in Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217, herein:- “10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh case. If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation.” 32. Having said so, issue No. 6 is also decided against the insurer-respondent No. 2 and in favour of the claimants and respondent No. 1. Issue No. 7: 33. Having said so, issue No. 6 is also decided against the insurer-respondent No. 2 and in favour of the claimants and respondent No. 1. Issue No. 7: 33. It was for the insurer-respondent No. 2 to lead evidence to prove that the deceased was a gratuitous passenger, has not led any evidence to this effect, thus, has failed to prove the same. Accordingly, issue No. 7 is decided against the insurer-respondent No. 2 and in favour of the claimants and respondent No. 1. Issue No. 2: 34. Admittedly, the age of the deceased was 25 years at the time of the accident. It is pleaded that he was earning Rs. 8,000/- per month as a skilled carpenter and there is evidence to this effect also. Even otherwise, the income of the labourer would not have been less than Rs. 5,000/- per month at that point of time. Thus, it can be safely said that the deceased was earning not less than Rs. 5,000/- per month at the time of the accident. He was a bachelor. 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, 50% is to be deducted towards his personal expenses. Accordingly, it is held that the appellants-claimants have suffered loss of income/dependency to the tune of Rs. 2500/- per month. 35. The Apex Court in a latest judgment rendered in the case titled as Munna Lal Jain and another versus Vipin Kumar Sharma and others, reported in 2015 AIR SCW 3105, has held that the application of the multiplier depends on the age of the deceased alone. Viewed thus, the multiplier of 15' is just and appropriate in view of the judgments (supra) read with the Second Schedule appended with the MV Act. 36. Accordingly, the appellants-claimants are held entitled to compensation to the tune of Rs. 2500/- x 12 x 15 = Rs. 4,50,000/- under the head 'loss of income/dependency'. The appellants-claimants are also held entitled to compensation to the tune of Rs. 10,000/- under the head 'loss of love and affection', Rs. 10,000/- under the head 'loss of estate' and Rs. 36. Accordingly, the appellants-claimants are held entitled to compensation to the tune of Rs. 2500/- x 12 x 15 = Rs. 4,50,000/- under the head 'loss of income/dependency'. The appellants-claimants are also held entitled to compensation to the tune of Rs. 10,000/- under the head 'loss of love and affection', Rs. 10,000/- under the head 'loss of estate' and Rs. 10,000/- under the head 'funeral expenses'. 37. In view of the discussions made hereinabove read with the fact that the factum of insurance is not in dispute, the insurer is saddled with liability. 38. Having said so, the appellants-claimants are held entitled to total compensation to the tune of Rs. 4,50,000/- + Rs. 10,000/- + Rs. 10,000/- + Rs. 10,000/- = Rs. 4,80,000/- with interest @ 7.5% per annum from the date of the impugned award, i.e. with effect from 28.03.2008 till its finalization. 39. The insurer is directed to deposit the awarded amount before this Registry within eight weeks. On deposition of the amount, the same be released in favour of the appellants-claimants in equal shares after proper identification. 40. Having glance of the above discussions, the impugned award is set aside and the appeal is allowed. 41. Send down the record after placing copy of the judgment on Tribunal's file.