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2016 DIGILAW 1391 (HP)

Prasoon Sharma v. Bhimi Devi

2016-07-15

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is the award, dated 20th September, 2010, passed by the Motor Accident Claims Tribunal, Kullu, District Kullu, H.P. (for short, “the Tribunal”) in Claim Petition No.49 of 2008, titled Bhimi Devi and others vs. Prasoon Sharma and others, whereby compensation to the tune of Rs.4,33,000/-, alongwith interest at the rate of 7% per annum from the date of filing of the claim petition till realization, came to be awarded in favour of the claimants and the owner and the driver were saddled with the liability jointly and severally, (for short the “impugned award”). 2. The claimants, the driver and the insurer have not questioned the impugned award on any ground, thus, the same has attained finality so far as it relates to them. 3. Feeling aggrieved, the owner has filed the instant appeal on the ground that the Tribunal has fallen into an error in discharging the insurer from its liability. 4. Therefore, the only question to be determined in this appeal is – Whether the findings returned by the Tribunal viz. a viz. part of issue No.2 and issue No.5 are legally correct? 5. To answer the said question, it is useful to have a brief background of the facts of the case, which are enumerated hereinbelow. 6. On 14th May, 2008, Damodar Dass alias Dinesh Kumar, traveling in Jeep bearing No.HP-66-0495, which was being driven by its driver namely Bhupinder Singh rashly and negligently, and when the said Jeep reached near Najaan, it met with an accident, resulting into the death of said Damodar Dass on the spot. FIR bearing No.293, dated 15th May, 2008, was registered against the driver of the offending Jeep under Sections 279 and 304A of the IPC. 7. The claimants, being the dependants of the deceased, filed the claim petition claiming compensation to the tune of Rs.10.00 lacs, as per the break-ups given in the claim petition. 8. Original respondents resisted the claim petition by filing replies. On the pleadings of the parties, the Tribunal framed the following issues:- “1. Whether Damodhar alias Dinesh kumar died in a motor accident on 14.5.2008 at about 10.30 p.m. at Kala Joul (Najaan) involving vehicle No.HP-66-0495 driven by respondent No.2, in a rash and negligent manner? OPP 2. 8. Original respondents resisted the claim petition by filing replies. On the pleadings of the parties, the Tribunal framed the following issues:- “1. Whether Damodhar alias Dinesh kumar died in a motor accident on 14.5.2008 at about 10.30 p.m. at Kala Joul (Najaan) involving vehicle No.HP-66-0495 driven by respondent No.2, in a rash and negligent manner? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled and from whom? OPP 3. Whether the present claim petition is not maintainable as alleged, if so its effect? OPR 1 and 2 4. Whether the driver of the vehicle No.HP-66-495 was not holding a valid and effective driving licence to drive the vehicle in question, if so, its effect? OPR-3 5. Whether the deceased was unauthorized/gratuitous passenger, as alleged, if so its effect? OPR-3 6. Relief.” 9. Parties led their evidence and the Tribunal allowed the claim petition and saddled the owner with the liability as discussed hereinabove. 10. The Tribunal, after referring to the pleadings of the parties and the evidence, held that the accident had occurred due to the rash and negligent driving of the driver of the offending Jeep, namely, Bhupinder Singh, which findings are borne out from the records. Otherwise also, the said findings are not disputed. Therefore, the findings returned by the Tribunal on issue No.1 are upheld. 11. Before issues No.2 and 5 are taken up for discussion, I deem it proper determine issues No.3 and 4 at the first instance. Onus to prove issue No.3 was upon the owner and the driver and it was for them to prove that the claim petition was not maintainable, have failed to do so. Even otherwise, the Motor Vehicles Act, 1988 (for short, the Act) has gone through a sea change and sub section (6) to Section 158 and sub section (4) to Section 166 have been added. Section 158(6) provides that the Incharge of the Police Station concerned has to submit a report about the traffic accident to the Tribunal having the jurisdiction and that report has to be treated as Claim Petition by the Tribunal in terms of Section 166(4) of the Act. Thus, even filing of claim petition is not mandatory for grant of compensation in terms of the said amendment. Thus, even filing of claim petition is not mandatory for grant of compensation in terms of the said amendment. Therefore, it does not lie in the mouth of the owner and the driver to urge on flimsy grounds that the claim petition was not maintainable. Accordingly, the findings returned by the Tribunal on issue No.3 are upheld. 12. As far as issue No.4 is concerned, it was for the insurer to plead and prove that the driver of the offending Jeep was not having a valid and effective driving licence, has not led any evidence. Driving licence of the driver was proved on record as PW-3/A which was valid and effective at the time of accident. Therefore, the Tribunal has rightly decided issue No.4 and the said findings are liable to be upheld. 13. Coming to issues No.2 and 5, the claimants filed the claim petition in September, 2008 and in paragraph 24 thereof, they pleaded that the deceased boarded the offending Jeep at Jorang, and when the said Jeep reached at Kala Joul near Najan, it met with the accident. The claimants nowhere pleaded that the deceased had hired the Jeep for transportation of goods and was sitting in the Jeep as owner of the goods or was traveling in the said Jeep as labourer for loading/unloading of goods. 14. It is pertinent to mention here that the claimants, after noticing the reply, amended the claim petition. Even in the amended claim petition, the claimants have not pleaded that the deceased was traveling in the offending jeep as labourer for loading/unloading of goods or had hired the said Jeep for transportation of goods. 15. The driver and the owner filed the joint reply and in the reply there is no murmur that the deceased had hired the said Jeep for the purpose of carrying goods or was engaged as labourer for loading/unloading of goods. 16. Admittedly, the offending Jeep was a goods carriage vehicle and not a passenger vehicle. As discussed above, the learned counsel for the appellant/insured was not in a position to show from the records as to in which capacity the deceased was traveling in the offending Jeep. The Tribunal has rightly made discussion in paragraph 22 of the impugned award and has rightly held that the deceased was traveling in the offending Jeep as gratuitous passenger. The Tribunal has rightly made discussion in paragraph 22 of the impugned award and has rightly held that the deceased was traveling in the offending Jeep as gratuitous passenger. Accordingly, the findings returned by the Tribunal on issue No.5 are upheld. 17. What follows from the above discussion is that the owner/insured has violated the terms and conditions of the insurance policy and therefore, the owner/insured has rightly been held liable to pay the amount of compensation. The quantum of compensation is not in dispute. Accordingly, the findings returned by the Tribunal on issue No.2 are also upheld. 18. Having said so, the impugned award is upheld and the appeal is dismissed. As stated by the learned counsel for the appellant, the appellant has deposited the entire amount in the Registry of this Court. The Registry is directed to release the amount, alongwith interest, in favour of the claimants forthwith, through their bank accounts, strictly in terms of the impugned award. 19. The appeal is disposed of accordingly.