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2016 DIGILAW 1859 (HP)

Karam Chand v. Chanchla Devi

2016-09-02

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. CMP No. 7190/2016. 1. This application has been moved by the learned counsel for respondents No. 1 to 5 for correcting the name of respondent No. 5 in the claim petition, impugned award and in the memo of parties of the appeal, on the grounds that inadvertently name of respondent No. 5 has been recorded as “Miss Priyanka Kumari” instead of Priya. While exercising powers under Sections 152, 153 and Order 41 of the Code of Civil Procedure, for short “CPC” read with Sections 173 and 176 of the Motor Vehicles Act, for short “the Act”, the application is granted. The name of respondent No.5 is ordered to be read as “Priya” instead of “Miss Priyanka Kumari”, in the claim petition, impugned award and in the memo of parties of the present appeal. Amended memo of parties has been filed. Be taken on record. Registry to carry out necessary correction in the cause title. The application is accordingly, disposed of. FAO No. 226 of 2011. 2. This appeal is directed against the judgment and award dated 28.2.2011, made by the Motor Accident Claims Tribunal-II, Kangra at Dharamshala in MACP No. 61-D of 2006, titled Smt. Chanchla Devi and others versus Karam Chand and others, for short “the Tribunal”, whereby compensation to the tune of Rs.2,16,600/- alongwith interest @ 7½% per annum, came to be awarded in favour of the claimants and insured came to be saddled with the liability, hereinafter referred to as “the impugned award”, for short. 3. Claimants, driver and insurer have not questioned the impugned award on any ground. Thus, the same has attained the finality so far as it relates to them. 4. The appellant/owner has questioned the impugned award on the grounds taken in the memo of appeal. 5. The learned counsel for the appellant argued that the Tribunal has fallen into an error in saddling the owner with the liability for the reason that the claimants have failed to prove that the driver has driven the offending vehicle rashly and negligently. The argument though attractive, is devoid of any force, for the following reasons. 6. The claimants have examined five witnesses and claimant No. 1 also appeared in the witness box as PW3. Respondents have also examined the five witnesses. 7. The argument though attractive, is devoid of any force, for the following reasons. 6. The claimants have examined five witnesses and claimant No. 1 also appeared in the witness box as PW3. Respondents have also examined the five witnesses. 7. The Tribunal, after scanning the evidence held that the driver Raghubir Singh has driven the offending vehicle rashly and negligently and caused the accident. The driver has not questioned the said findings. 8. I have gone through the evidence on record. It is beaten law of the land that in civil cases, proof of preponderance of probabilities is required, in criminal cases, proof beyond reasonable doubt is required and in summary proceedings under Section 166 of the Motor Vehicles Act, 1988 for short “the Act”, prima facie proof is required. 9. 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 , and Oriental Insurance Co. versus Mst. Zarifa and others, reported in, AIR 1995 Jammu and Kashmir 81. 10. 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. Beena 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. 11. Having said so, I am of the considered view that Tribunal has rightly made the discussion from paras 6 to 16 of the impugned award, needs no interference. However, the Tribunal has fallen into an error in deducting 1/3rd while 1/4th was to be deducted. The amount awarded is also meager, but the claimants have not questioned the same, the same is reluctantly upheld. 12. In view of the discussion made hereinabove, the impugned award merits to be upheld and the appeal merits to be dismissed. Accordingly, the impugned award is upheld and the appeal is dismissed. 13. The appellant is directed to deposit the amount within eight weeks from today. 12. In view of the discussion made hereinabove, the impugned award merits to be upheld and the appeal merits to be dismissed. Accordingly, the impugned award is upheld and the appeal is dismissed. 13. The appellant 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 claimants, through payees’ cheque account or by depositing the same in their bank accounts. 14. At this stage, it is stated that an amount of Rs.1,50,000/- stands deposited in this Registry by the appellant. Registry is directed to release the same immediately in favour of the claimants, through payees’ cheque account or by depositing the same in their bank accounts. 15. Send down the record forthwith, after placing a copy of this judgment.