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Himachal Pradesh High Court · body

2016 DIGILAW 1383 (HP)

Ratinder Garg v. Kamla

2016-07-15

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Challenge in this appeal is to the judgment and award dated 7.6.2010, made by the Motor Accident Claims Tribunal, Kullu, H.P., in claim petition No. 15 of 2008, titled Kamla versus Smt. Ratinder Garag and others, for short “the Tribunal”, whereby compensation to the tune of Rs.1,65,000/- alongwith interest @ 7% per annum, came to be awarded in favour of the claimant, namely Kamla, hereinafter referred to as “the impugned award”, for short. 2. Insurer, claimant and driver have not questioned the impugned award on any ground. Thus, it has attained the finality so far as it relates to them. 3. Thus, the only question to be determined in this appeal is whether the offending vehicle was being driven by Dinesh or by Smt. Ratinder Garag, at the relevant point of time. 4. The claimant had filed claim petition before the Tribunal for the grant of compensation, as per the break-ups given in the claim petition, on the grounds taken in the memo of the claim petition. 5. During the pendency of the claim petition, an application under Order 1 Rule 10 of the Code of Civil Procedure, for short “CPC” was moved for arraying the Principal DAV School Ranghari Tehsil Manali District Kullu, H.P. owner of vehicle No. HP-58-3122 as party respondent, which was granted and the Principal DAV School Ranghari Tehsil Manali District Kullu was arrayed as respondent No. 1 A in the claim petition. 6. The claim petition was resisted by the respondents and following issues came to be framed. (i) Whether the accident has taken place due to rash and negligent driving of respondent No.1, driver of the vehicle No. HP-58-3122, if so, its effect? OPP (ii) If issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled and from whom? OPP. (iii) Whether the vehicle in question was being driven by respondent No. 3 and not by driven by respondent No.1, if so, its effect? OPR1. (iv) Whether the driver of the offending vehicle was not having valid and effective driving licence at the time of accident, if so, its effect? OPR-2. (v) Whether the vehicle was being plied in contravention of the provisions of the policy, if so, its effect? OPR-2. (vi) Relief. 7. Parties have led the evidence. 8. OPR1. (iv) Whether the driver of the offending vehicle was not having valid and effective driving licence at the time of accident, if so, its effect? OPR-2. (v) Whether the vehicle was being plied in contravention of the provisions of the policy, if so, its effect? OPR-2. (vi) Relief. 7. Parties have led the evidence. 8. The Tribunal, after scanning the evidence, held that the vehicle was being driven Smt. Ratinder Garag appellant No.1 herein. Thus, the insured/owner has violated the terms and conditions of the insurance policy and saddled the owner with the liability and exonerated the insurer. 9. It appears that the Tribunal has fallen in an error in marshalling out the facts of the case for the following reasons. 10. The grant of compensation is a social legislation for the benefit of the victims of the vehicular accident. 11. 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. 12. 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 SCC 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. 13. 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. 14. The claimant has also arrayed Dinesh driver as party respondent in the claim petition but has stated that the vehicle was being driven by Smt. Ratinder Garag at the relevant point of time. 15. 14. The claimant has also arrayed Dinesh driver as party respondent in the claim petition but has stated that the vehicle was being driven by Smt. Ratinder Garag at the relevant point of time. 15. Dinesh driver has filed the reply and he has admitted that he was driving the vehicle at the relevant point of time. It is apt to reproduce reply to preliminary objections No. 1 and reply to para 24(i) of the claim petition herein. “Preliminary objections: 1. That there was no negligence of whatsoever nature on the part of the replying respondent No. 1 as alleged rather the vehicle was being driven by respondent No. 3, as respondent No. 3 is the driver of DAV Public School Rangri, Tehsil Manali, District Kullu (Himachal Pradesh). As such the respondent No. 1 is not liable to pay any compensation to the petitioner and claim petition against respondent No, 1 is liable to be dismissed.” 24(i) That para No. 24 (i) of the petition is denied for want of knowledge. Petitioners be put to strict proof of the same. It is also denied that the vehicle in question was being driven by the respondent No. 1 rather the same was being driven by respondent No. 3 and there is no negligence on the part of replying respondents. The accident took place due the negligence of the petitioner herself. Further, the vehicle in question is not registered in the name of the respondent No.1 whereas the same is registered in the name of Principal, DAV, Public School, Rangri, Tehsil Manali Distt. Kullu (Himachal Pradesh).” 16. In view of the above, it is admission on the part of the driver that he was driving the vehicle at the time of accident. They have also admitted that the accident has taken place and claimant has sustained the injuries. FIR was lodged against Dinesh driver which culminated in to the final report under Section 173 of the Code of Criminal Procedure, for short “Cr.P.C.” Challan was presented before the Court of Judicial Magistrate Manali in which he was acquitted by granting benefit of doubt. 17. The prosecution has also set up a case before the trial Court that driver Dinesh was driving the vehicle at the relevant point of time. The said judgment is on record, is a public document, thus admissible in evidence. 18. 17. The prosecution has also set up a case before the trial Court that driver Dinesh was driving the vehicle at the relevant point of time. The said judgment is on record, is a public document, thus admissible in evidence. 18. Having said so, there is prima facie proof on the file that Dinesh was driving the offending vehicle at the time of accident. Accordingly, findings returned by the Tribunal on issue No. 1 are set aside and it is held that Dinesh-respondent No.3 was driving the offending vehicle at the time of accident. 19. It is also admitted that the driver was having a valid and effective driving licence. The Tribunal has fallen in an error in discharging the insurer and saddling the owner with the liability. Viewed thus, the findings returned on issues No. 3, 4 and 5 are set aside. 20. The factum of insurance is also admitted. Thus, the insurer has to satisfy the award. The insurer is directed to satisfy the award and is directed to deposit the amount within eight weeks from today. On deposit, the Registry is directed to release the awarded amount in favour of the claimant, through payees’ cheque account or by depositing the same in her bank account, strictly in terms of the conditions contained in the impugned award. Statutory amount of Rs.25,000/- is awarded as costs in favour of the claimant. 21. Having said so, the appeal is allowed, the impugned award is modified, as indicated hereinabove. 22. Send down the record forthwith, after placing a copy of this judgment.