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Himachal Pradesh High Court · body

2015 DIGILAW 402 (HP)

Zahid Ali v. Shubham Chauhan

2015-04-24

MANSOOR AHMAD MIR

body2015
JUDGMENT Mansoor Ahmad Mir, Chief Justice Both these appeals are outcome of a vehicular accident allegedly caused by the driver, namely Shri Shokat Ali, while driving Maruti Van, bearing registration No. HP-18-5045, rashly and negligently, on 03.02.2005 at about 7.00 p.m. near JBT School, Nahan, and hit a motorcycle, bearing registration No. HP-39 A-5987, which was being driven by Aditya Chauhan and Shubham Chauhan was the pillion rider; both of them sustained injuries, were taken to Zonal Hospital, Nahan, where they remained admitted. 2. Shubham Chauhan filed claim petition, i.e. MAC Petition No. 16-N/2 of 2005, titled as Shumbam Chauhan versus Zahid Ali & others, and claimed compensation to the tune of 4,00,000/-, as per the break-ups given in the claim petition. 3. Aditya Chauhan also filed claim petition, i.e. MAC Petition No. 15-N/2 of 2005, titled as Aditya Chauhan versus Zahid Ali & others, and claimed compensation to the tune of 2,00,000/-, as per the break-ups given in the claim petition. 4. The respondents, i.e. the driver, the owner-insured and the insurer contested the claim petitions on the grounds taken in the respective memo of objections. 5. Identical issues came to be framed in both the claim petitions. I deem it proper to reproduce the issues framed only in MAC Petition No. 16-N/2 of 2005 herein: “1. Whether the petitioner sustained injuries due to the rash and negligent driving of Maruti Van No. HP-18-5045, being driven by Shokat Ali (respondent No. 2), as alleged? ...OPP 2. If issue No. 1 is proved, to what amount of compensation, the petitioner is entitled to and from whom? ...OPP 3. Whether this petition is not maintainable as alleged in preliminary objection ? ...OPR-3 4. Whether the driver of the offending Maruti Van was not having a valid and effective driving licence at the relevant time? ...OPR-3 5. Whether this petition has been filed in collusion with the owner and driver of the offending Maruti Van? ...OPR-3 6. Relief.” 6. Parties led evidence. ...OPR-3 4. Whether the driver of the offending Maruti Van was not having a valid and effective driving licence at the relevant time? ...OPR-3 5. Whether this petition has been filed in collusion with the owner and driver of the offending Maruti Van? ...OPR-3 6. Relief.” 6. Parties led evidence. The Motor Accident Claims Tribunal-II, Sirmaur District at Nahan, H.P. (for short “the Tribunal”), after scanning the evidence, oral as well as documentary, held that the claimants entitled to compensation and awarded compensation to the tune of 85,000/- in favour of injured- Shubham Chauhan and 12,000/- in favour of injured-Aditya Chauhan, with interest @ 7.5% per annum from the date of filing of the claim petitions till deposition of the amount, vide two separate awards, dated 02.11.2007 (for short “the impugned awards”). 7. The claimants, the insurer and the driver have not questioned the impugned awards on any count, thus, have attained finality so far it relate to them. 8. The owner-insured, Zahid Ali, has questioned both the impugned awards by the medium of these appeals on the ground that the Tribunal has fallen in an error in discharging the insurer and saddling him with liability. 9. This judgment shall govern both these appeals for the reason that these are outcome of the same accident and similar questions of facts and law are involved. 10. The points to be determined in these appeals are - (1) who was driving the offending vehicle, whether Shokat Ali or Shyam Singh Thapa? (2) who is to be saddled with liability? Issues No. 1 and 3 to 5: 11. The claimants have pleaded in para 21 of both the claim petitions that Shokat Ali was driving the offending vehicle. The owner-insured and the driver-Shokat Ali have admitted the said fact. But, the insurer, i.e. Oriental Insurance Company Limited has denied the said factum and has taken defence in its reply that one Shyam Singh Thapa was driving the offending vehicle, who was not having a valid and effective driving licence. Further, it has pleaded in its reply that the claimants, in connivance with the owner-insured and the driver, have pleaded that Shokat Ali was the driver of the offending vehicles. 12. Further, it has pleaded in its reply that the claimants, in connivance with the owner-insured and the driver, have pleaded that Shokat Ali was the driver of the offending vehicles. 12. The claimants have led evidence to the effect that Shokat Ali was driving the offending vehicle despite the fact that the claimants were not required to lead evidence to prove the said factum and to discharge the onus. 13. Zahid Ali, the owner-insured of the offending vehicle has appeared in the witness box as RW-3 in both the claim petitions and has specifically stated that Shokat Ali was driving the vehicle at the time of the accident. 14. The insurer has examined Shri N.K. Barwal as RW-1, HC Ram Gopal as RW-2 and Shri Satender Singh as RW-4 in both the claim petitions. 15. RW-1, Shri N.K. Barwal is Record Keeper from General Record Room, Nahan, who has proved the Notice of Accusation, Ext. RW-1/A, which was framed against Shyam Singh in the criminal trial, which he was facing before the Chief Judicial Magistrate, Nahan, and stated that the charge was not proved and Shyam Singh was acquitted. 16. RW-2, HC Ram Gopal, deposed that he has conducted the investigation in FIR No. 25 of 2005, registered at Police Station Nahan and submitted the final report in terms of Section 173 of the Code of Criminal Procedure (for short “CrPC”) before the Court of competent jurisdiction. 17. RW-4, Shri Satender Singh, deposed that Shyam Singh was having the licence to drive a light transport vehicle, which was issued in his name under licence No. 2257/71 on 18.08.1971, was renewed from time to time, was not renewed from 10.12.2003 to 07.02.2005 and was lastly renewed on 07.02.2005 which was valid up to 06.02.2008. He has also stated that penalty was imposed upon Shyam Singh for the delay which had crept-in in getting the licence renewed. Further stated that the licence was not cancelled and the licence was deemed to be valid in view of the renewal by the Licensing Authority. 18. It is not disputed that Shokat Ali was not having the licence. The claimants in both the claim petitions have pleaded and proved that Shokat Ali was driving the offending vehicle at the relevant point of time. At the cost of repetition, the owner-insured and the driver-Shokat Ali have also admitted the said fact. 18. It is not disputed that Shokat Ali was not having the licence. The claimants in both the claim petitions have pleaded and proved that Shokat Ali was driving the offending vehicle at the relevant point of time. At the cost of repetition, the owner-insured and the driver-Shokat Ali have also admitted the said fact. Thus, how can it be said that the vehicle was being driven by Shyam Singh. 19. The aim and object of the MV Act is to provide speedy compensation in order to save the claimants from social evils and other sufferings. It is not an adversarial litigation and strict pleadings and proof are not required while determining the claim petition. 20. My this view is fortified by the judgment rendered by the Apex Court in a case titled as Dulcina Fernandes and others versus Joaquim Xavier Cruz and another, reported in (2013) 10 Supreme Court Cases 646. It would be profitable to reproduce relevant portion of paras 8 and 9 of the judgment herein: “8. In United India Insurance Co. Ltd. v. Shila Datta, (2011) 10 SCC 509 , while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three-Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: “10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal. * * * (v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation....... (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.” 9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, (2011) 10 SCC 509 , SCC p. 519) “10. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.” 9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, (2011) 10 SCC 509 , SCC p. 519) “10. ….........We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.” (Emphasis added)” 21. The mystic maybes, technicalities, procedural wrangles and tangles have no role to play in determining the claim petitions. The claim petitions cannot be defeated on the said ground, that will amount to depriving the claimants from reaping the fruits of the said litigation. 22. My this view is fortified by the judgment of the Apex Court in a 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 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 no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parcimony practised by tribunals. 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 no-fault 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 supplied” 23. 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.” 24. It is also apt 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. ........................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 sub-section (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.” 25. This Court in a series of cases has laid down the same principle. 26. The factum of insurance is admitted, but the insurer has taken a defence that the owner-insured has committed breach by employing driver-Shyam Singh, who was not having a valid and effective driving licence. 27. The question is - was Shyam Singh a party before the Tribunal or had the insurer made any effort to lay a motion for his impleadment or for securing his presence as a witness, which it has not done. Thus, adverse inference is to be drawn against it. 28. While scanning the evidence of the insurer, i.e. statements of RW-1, Shri N.K. Barwal, and RW-4, Shri Satender Singh, it is crystal clear that the said Shyam Singh was having the licence. RW-4 has stated that licence was issued, was renewed from time to time and penalty was also imposed upon him for renewal of the licence after delay and it was not cancelled. He has categorically stated that if the Licensing Authority renews the licence, it is deemed to be valid and was valid right from the year 1971 and was not cancelled. Meaning thereby, the licence of the said Shyam Singh was valid. 29. He has categorically stated that if the Licensing Authority renews the licence, it is deemed to be valid and was valid right from the year 1971 and was not cancelled. Meaning thereby, the licence of the said Shyam Singh was valid. 29. The statement of RW-4 nowhere supports the case of the insurer to the effect that Shyam Singh was not having licence. Thus, the Tribunal has fallen in an error in holding that Shyam Singh was not having valid and effective driving licence, though, it is not the case of the claimants that Shyam Singh was the driver. 30. RW-1 has specifically stated that Shyam Singh was facing trial in the said FIR, but he was acquitted. Meaning thereby, it was not proved that Shyam Singh was driving the offending vehicle at the relevant point of time rashly and negligently. 31. I deem it proper to record herein that the findings recorded by the Criminal Court in acquittal cannot be a ground to defeat the rights of the claimants. Even, if the driver is acquitted in the criminal proceedings, that may not be a ground for dismissal of the claim petitions. 32. My this view is fortified by the judgment rendered by the Apex Court in N.K.V. Bros's case (supra), wherein a bus hit an over-hanging high tension wire resulting in 26 casualties. The driver earned acquittal in the criminal case on the score that the tragedy that happened was an act of God. The Apex Court held that the plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rightly rejected by the Tribunal. It is apt to reproduce para 2 of the judgment herein: “2. The Facts: A stage carriage belonging to the petitioner was on a trip when, after nightfall, the bus hit an over-hanging high tension wire resulting in 26 casualties of which 8 proved instantaneously fatal. A criminal case ensued but the accused-driver was acquitted on the score that the tragedy that happened was an act of God. The Accidents Claims Tribunal which tried the claims for compensation under the Motor Vehicles Act, came to the conclusion, affirmed by the High Court, that, despite the screams of the passengers about the dangerous overhanging wire ahead, the rash driver sped towards the lethal spot. Some lost their lives instantly; several lost their limbs likewise. The Accidents Claims Tribunal which tried the claims for compensation under the Motor Vehicles Act, came to the conclusion, affirmed by the High Court, that, despite the screams of the passengers about the dangerous overhanging wire ahead, the rash driver sped towards the lethal spot. Some lost their lives instantly; several lost their limbs likewise. The High Court, after examining the materials, concluded: “We therefore sustain the finding of the Tribunal that the accident had taken place due to the rashness and negligence of R. W. 1 (driver) and consequently the appellant is vicariously liable to pay compensation to the claimant.” The plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rejected and rightly. The requirements of culpable rashness under Section 304A, I.P.C. is more drastic than negligence sufficient under the law of tort to create liability. The quantum of compensation was moderately fixed and although there was, perhaps, a case for enhancement, the High Court dismissed the crossclaims also. Being questions of fact, we are obviously unwilling to re-open the holdings on culpability and compensation.” 33. It is also profitable to reproduce relevant portion of para 8 of the judgment rendered by the High Court of Karnataka in a case titled Vinobabai and others versus K.S.R.T.C. and another, reported in 1979 ACJ 282: “8. ......................... Thus, the law is settled that when the driver is convicted in a regular trial before the Criminal Court, the fact that he is convicted becomes admissible in evidence in a civil proceeding and it becomes prima facie evidence that the driver was culpably negligent in causing the accident. The converse is not true ; because the driver is acquitted in a criminal case arising out of the accident, it is not established even prima facie that the driver is not negligent, as a higher degree of culpability is required to bring home an offence.” 34. Reliance is also placed on the judgment made by this Court in Himachal Road Transport Corporation and another versus Jarnail Singh and others, reported in Latest HLJ 2009 (HP) 174, wherein it has been held that acquittal of the driver in the criminal trial will have no bearing on the findings to be recorded by the Motor Accident Claims Tribunal whether the driver was negligent or not in causing the accident. It is apt to reproduce relevant portion of para 15 of the judgment herein: “15. In view of the definitive law laid down by their Lordships of the Hon'ble Supreme Court and the judgments cited hereinabove, it is now well settled law that the acquittal of the driver in the criminal trial will have no bearing on the findings to be recorded by the Motor Accident Claims Tribunal whether the driver was negligence or not in causing the accident. ................” 35. The insurer has not led any evidence to prove that the claimants, driver and the owner-insured have hatched a conspiracy and were hand in glove to get compensation from the insurer. 36. It was for the insurer to plead and prove that the ownerinsured has committed a willful breach of the terms of the insurance policy read with the mandate of Section 147 and 149 of the Motor Vehicles Act, 1988 (for short “the MV Act”), which it has failed to do so. 37. Having said so, issues No. 1 and 3 to 5 are decided against the insurer and in favour of the claimants. Issue No. 2: 38. Both the claimants, the victims of the vehicular accident, were admitted in hospital, had undergone sufferings, have lost their earnings for the said period and the injuries sustained by them have affected their career, but, unfortunately, both the claimants have not questioned the adequacy of the compensation. 39. It pains me to record herein that only a meager compensation amounting to 12,000/- has been awarded in favour of injured-Aditya Chauhan. Even liability of the insurer for “no fault liability' is 25,000/- and for this petty amount, injured-Aditya Chauhan has been deprived of from the year 2005 till today, is an eye-opener for the insurer, a mighty insurance company. 40. Accordingly, findings returned by the Tribunal on issue No. 2 are modified by providing that the insurer has to indemnify in terms of the insurance policy, i.e. contract. The insurer is directed to satisfy the awards in both the appeals and to deposit the same within four weeks alongwith interest in terms of the impugned awards till its deposition before the Registry. 41. Registry is directed to release the amount thereafter in favour of the claimants strictly as per the terms and conditions contained in the impugned awards after proper identification. 42. 41. Registry is directed to release the amount thereafter in favour of the claimants strictly as per the terms and conditions contained in the impugned awards after proper identification. 42. Having glance of the above discussions, the impugned awards are modified, as indicated hereinabove, and the appeals are disposed of accordingly. 43. Send down the record after placing copy of the judgment on each of the Tribunal's files.