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2015 DIGILAW 816 (HP)

Oriental Insurance Company v. Bimla Devi

2015-07-03

MANSOOR AHMAD MIR

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Judgment : Mansoor Ahmad Mir, C.J. Challenge in this appeal is to the award, dated 25th March, 2008, passed by the Motor Accident Claims Tribunal, Bilaspur, (for short, the Tribunal), in Claim Petition No.58 of 2005, titled Bimla Devi and another vs. Dimple Thakur and others, whereby compensation to the tune of Rs.7,08,720/-, with interest at the rate of 6% from the date of filing of the Claim Petition till realization, was awarded in favour of the claimants, and the insurer-appellant was saddled with the liability, (for short, the impugned award). 2. The claimants, the owner and the driver have not questioned the impugned award, thus, the same has attained finality so far as it relates to them. 3. Feeling aggrieved, the insurer has challenged the impugned award on the grounds taken in the memo of appeal. Brief facts: 4. Claimants invoked the jurisdiction of the Tribunal in terms of Section 166 of the Motor Vehicles Act, 1988, (for short, the Act), for grant of compensation to the tune of Rs.20.00 lacs, as per the break-ups given in the Claim Petition, on the ground that driver, namely, Manohar Kumar had driven the goods carrying commercial vehicle bearing No.HP-51-3565, on 13th April, 2005, rashly and negligently, hit the scooter bearing No.HP-24A-0263, on which the deceased namely Roshan Lal was traveling, as a result of which he sustained injuries and succumbed to the same. The driver of the offending vehicle eloped alongwith the offending vehicle from the spot. FIR No.134/05, dated 13.4.2005, was registered about the accident at Police Station, Sadar, Bilaspur. It was further averred that the deceased was 52 years of age at the time of accident, was serving as government employee and was posted as Superintendent in Government Senior Secondary School, Jagatkhanna, District Bilaspur, H.P., was earning Rs.15,487/- per month as salary. 5. The Claim Petition was resisted by the respondents by filing replies. 6. On the pleadings of the parties, the following issues came to be settled by the Tribunal: “1. Whether deceased Roshan Lal has died in the accident of truck No.HP-51-3565 which was being driven rashly and negligently by respondent No.2, as alleged? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation, the petitioners are entitled to and from which of the respondents? OPP 3. Whether the claim petition is not maintainable? OPR-1 4. Whether deceased Roshan Lal has died in the accident of truck No.HP-51-3565 which was being driven rashly and negligently by respondent No.2, as alleged? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation, the petitioners are entitled to and from which of the respondents? OPP 3. Whether the claim petition is not maintainable? OPR-1 4. Whether this Tribunal has no jurisdiction to try the present petition? OP-1 5. Whether the claim petition is bad for non-joinder and mis-joinder of necessary parties? OPR-1 6. Whether the driver of the offending vehicle was not having a valid and effective driving licence at the time of the accident as alleged? OPR-3 7. Whether the accident has taken place due to the contributory negligence of the deceased/scoorterist and the truck driver as alleged, if so, its effect? OP-3 8. Whether both the vehicles were being plied without the requisite documents at the time of the accident as alleged, if so, its effect? OPR-3 9. Relief.” 7. In order to prove their respective claims, the parties led their evidence. Claimants examined PW-1 Devi Ram, PW-2 Yash Pal, PW-3 Amarjeet Singh, PW-4 Bimla Devi (claimant), PW-5 HC Pratap Singh and PW-6 Ranjeet Singh. On the other hand, respondents examined RW-1 Khem Chand, RW-2 Hira Lal and RW-3 Manohar Kumar (driver of the offending vehicle). 8. The Tribunal, after scanning the entire evidence, has concluded that the driver of the offending vehicle had driven the vehicle rashly and negligently and hit the scooter and caused the accident, in which the deceased sustained the injuries and succumbed to the same. The said findings of the Tribunal have not been questioned by the driver or the owner of the offending vehicle. 9. However, the insurer has challenged the findings of the Tribunal by the medium of the instant appeal. It may be placed on record here that the insurer has not led any evidence to prove that the accident was the outcome of contributory negligence on the part of the driver of the offending vehicle and the deceased. 10. The argument of Mr.Gupta, learned Senior Advocate appearing for the insurer that the accident was the outcome of contributory negligence since the scooter hit the offending vehicle on its rear portion, while the deceased was trying to overtake the offending vehicle, though attractive, is devoid of any force for the following reasons. 11. 10. The argument of Mr.Gupta, learned Senior Advocate appearing for the insurer that the accident was the outcome of contributory negligence since the scooter hit the offending vehicle on its rear portion, while the deceased was trying to overtake the offending vehicle, though attractive, is devoid of any force for the following reasons. 11. Contents of the FIR and the statements of the witnesses examined by the claimants do disclose that the driver of the offending vehicle was driving the vehicle rashly and negligently and has caused the accident. On the contrary, no evidence was led by the insurer to prove that the accident was not the outcome of sole negligence on the part of the driver of the offending vehicle or that the deceased was driving the scooter rashly and negligently and struck with the rear portion of the offending vehicle. 12. Arguments were advanced by Mr.Gupta as if he was arguing a case before a Civil Court. In a Claim Petition, summary procedure is to be adopted and all provisions of Civil Procedure Code are not applicable, rather only some provisions have been made applicable in terms of Section 169 of the Act, read with Rule 232 of the Himachal Pradesh Motor Vehicles Rules, 1999 (for short, the Rules of 1999). It is apt to reproduce Rule 232 of the Rules of 1999, hereunder: “232. The Code of Civil Procedure to apply in certain cases:- The following provisions of the First Schedule to the Code of Civil Procedure, 1908, shall so far as may be, apply to proceedings before the Claims Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX; Order XIII; Rule 3 to 10; Order XVI, Rules 2 to 21; Order XVII; Order XXI and Order XXIII, Rules 1 to 3.” 13. It is beaten law of the land that the negligence on the part of the driver of the offending vehicle has to be decided on the hallmark of preponderance of probabilities and not on the basis of proof beyond reasonable doubt. Furthermore, the claimants claiming compensation in terms of Section 166 of the Motor Vehicles Act is not to be seen as an adversial litigation, but is to be determined while keeping in view the aim and object of granting compensation. Furthermore, the claimants claiming compensation in terms of Section 166 of the Motor Vehicles Act is not to be seen as an adversial litigation, but is to be determined while keeping in view the aim and object of granting compensation. My this view is fortified by the judgment of the Apex Court in Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another, (2013) 10 SCC 646 . 14. The Apex court in Savita vs. Bindar Singh & others, 2014 AIR SCW 2053, has held that at the time of fixing compensation, courts should not succumb to niceties or technicalities of law. It is apt to reproduce paragraph 6 of the said decision hereunder: “6. After considering the decisions of this Court in Santosh Devi (Supra) as well as Rajesh v. Rajbir Singh (supra), we are of the opinion that it is the duty of the Court to fix a just compensation. At the time of fixing such compensation, the court should not succumb to the niceties or technicalities to grant just compensation in favour of the claimant. It is the duty of the court to equate, as far as possible, the misery on account of the accident with the compensation so that the injured or the dependants should not face the vagaries of life on account of discontinuance of the income earned by the victim. Therefore, it will be the bounden duty of the Tribunal to award just, equitable, fair and reasonable compensation judging the situation prevailing at that point of time with reference to the settled principles on assessment of damages. In doing so, the Tribunal can also ignore the claim made by the claimant in the application for compensation with the prime object to assess the award based on the principle that the award should be just, equitable, fair and reasonable compensation.” 15. A reference may also be made to the decision of the Apex Court in Sohan Lal Passi v. P.Sesh Reddy and others, AIR 1996 Supreme Court 2627, in which, in paragraph 12, it was observed that the courts, while deciding claim petitions, must keep in mind that the right of the claimants is not defeated on technical grounds. Relevant portion of paragraph 12 of the said decision is reproduced hereunder: “12. ........................ Relevant portion of paragraph 12 of the said decision is reproduced hereunder: “12. ........................ While interpreting the contract of insurance, the Tribunal 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.” 16. This Court also, in the recent past, in series of judgments, has followed the similar principle and held that granting of compensation is just to ameliorate the sufferings of the victims and is to be taken to its logical end without succumbing to the niceties of law, hypertechnicalities and procedural wrangles and tangles. 17. Having regard to the above discussion, the sine qua non for granting compensation in a Claim Petition is that the claimants have to prove prima facie that the driver of the offending vehicle was driving the vehicle rashly and negligently, which, in the instant case, has been proved by the claimants by leading evidence, and thus, have discharged the onus. Moreover, the insurer has not sought any direction in terms of Section 170 of the Act and has also not led any evidence. 18. I have gone through the evidence led by the claimants. The Tribunal has rightly made discussion in paragraphs 9 to 18 of the impugned award and has rightly arrived at the conclusion that the driver had driven the offending vehicle rashly and negligently and had caused the accident. 19. 18. I have gone through the evidence led by the claimants. The Tribunal has rightly made discussion in paragraphs 9 to 18 of the impugned award and has rightly arrived at the conclusion that the driver had driven the offending vehicle rashly and negligently and had caused the accident. 19. Having said so, the findings recorded by the Tribunal on issues No.1 and 7 are correct and are accordingly upheld. 20. As far as issues No.3, 4 and 5 are concerned, onus to prove these issues was on the owner/insured, which he has failed to discharge. Moreover, the owner has not questioned the findings recorded by the Tribunal on these issues. Accordingly, the findings of the Tribunal recorded on these issues are upheld. 21. Qua issues No.6 and 8, the onus to prove these issues was on the insurer. It is beaten law of the land that the insurer has to plead and prove that the owner has committed willful breach of the terms and conditions contained in the insurance policy, read with the provisions of Sections 147 and 149 of the Act. However, a perusal of the record shows that there is nothing on the file which could show that the owner has committed any willful breach or the vehicle was being driven in contravention to the terms and conditions contained in the insurance policy or that the driver of the offending vehicle was not having a valid and effective driving licence. Accordingly, findings recorded by the Tribunal on these issues are also upheld. 22. As far as issue No.2 is concerned, the learned Senior Counsel for the appellant has argued that the amount of compensation awarded by the Tribunal is excessive. A perusal of the impugned award shows that the Tribunal has rightly taken the income of the deceased, which, by no stretch of imagination, can be said to be on the higher side. 23. However, I have gone through the record of the case. The deceased was a government employee and was earning Rs.15,487/- per month. The age of the deceased was 52 years at the time of accident. 23. However, I have gone through the record of the case. The deceased was a government employee and was earning Rs.15,487/- per month. The age of the deceased was 52 years at the time of accident. The loss of dependency has been correctly assessed by the Tribunal and multiplier of 10 came to be rightly applied in view of the Second Schedule attached to the Motor Vehicles Act, read with the judgment of the Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120. 24. In view of the above discussion, no infirmity can be found with the impugned award and the same is accordingly upheld. Consequently, the appeal is dismissed.