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2016 DIGILAW 1937 (HP)

Jubeda Bibi v. Hassan Ali

2016-09-09

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. 1. This appeal is directed against the award, dated 17th October, 2013, passed by the Motor Accident Claims Tribunal, Mandi, District Mandi, H.P., (for short, “the Tribunal”) in Claim Petition No. 33 of 2012, titled Jubeda Bibi and another vs. Hassan Ali and others, whereby the claim petition came to be dismissed, (for short the “impugned award”). 2. Facts of the case, in brief, are that the claimants, being the parents of deceased Mohamad Usman Haider, who died in a vehicular accident, which took place on 10th July, 2009 at about 8.30 p.m. at Dhanotu, near Punjabi Dhaba and Sheetla Gas Agency, Tehsil Sundernagar, District Mandi, invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehicles Act, 1988, (for shot, the Act), for compensation to the tune of Rs.20.00 lacs, as per the break-ups given in the claim petition. 3. The claim petition was resisted by the respondents and following issues were framed: 1. Whether Sh.Mohamad Usman Haider died in a road side accident on 10-7-2009, involving vehicle No.HP-31A-4822, being driven by respondent No.2 in a rash and negligent manner? OPP 2. If issue No.1 is proved in affirmative, for what amount of compensation, the claimants are entitled and from whom? OPP 3. Whether the present claim petition is not maintainable in view of the preliminary objection No.1 as taken by the respondents No.1 and 2? OPR-1 & 2 4. Whether the petition is bad for non joinder of necessary party? OPR 1 & 2. 5. Whether the vehicle involved in the accident was being driven by the appellant who was not holding a valid and effective driving licence to drive the vehicle at the time of accident? OPR 6. Whether the vehicle in question was being plied in contravention of terms and conditions of insurance policy, if so its effect? OPR-3 7. Relief. 4. Claimant No.1 Jubeda Bibi, in support of the claim set out in the claim petition, appeared in the witness box as PW-1. The claimants also examined three more witnesses i.e. PW-2 Munish Mohamad, PW-3 HC Sanjeev Kumar and PW-4 Ravinder Kumar. Respondents No.1 and 2, i.e. the owner and the driver of the offending truck, appeared in the witness box as RW-1 and RW-2 respectively. The insurer has not examined any witness. 5. The claimants also examined three more witnesses i.e. PW-2 Munish Mohamad, PW-3 HC Sanjeev Kumar and PW-4 Ravinder Kumar. Respondents No.1 and 2, i.e. the owner and the driver of the offending truck, appeared in the witness box as RW-1 and RW-2 respectively. The insurer has not examined any witness. 5. It is apt to record herein that respondent No.4 i.e. National Insurance Company Limited was deleted from the array of respondents vide order dated 13th September, 2012, passed by the Tribunal in the Claim Petition. 6. The Tribunal, after scanning the evidence, held that the claimants had failed to prove that Sanjeev Kumar, (respondent No.2) had driven the offending truck bearing No.HP-31A-4822 rashly and negligently on the fateful day and had caused the accident. 7. After hearing the learned counsel for the parties and after having gone through the record, I am of the considered view that the said findings recorded by the Tribunal are not borne out from the record and are required to be set aside for the reasons given here in below. 8. The claimants have specifically pleaded in the claim petition that FIR bearing No.195/09, dated 10th July, 2009, under Sections 279, 337 and 304 of the IPC was registered at Police Station, Sundernagar, District Mandi, H.P. The said FIR has been proved on record as Ext.PW-3/A, a perusal of which clearly shows that the same was recorded against respondent No.2 Sanjeev Kumar, driver of the offending truck. Final report in terms of Section 173 of the Code of Criminal Procedure, (for short, Cr.P.C.) was presented before the Additional Chief Judicial Magistrate, Sundernagar, against respondent No.2 Sanjeev Kumar, which, as informed during the course of hearing, is still pending. 9. Thus, from the above, it is clear that the findings recorded by the Tribunal are erroneous and against the concept of granting compensation. The Tribunal, while dismissing the claim petition, seems to have applied the standard of proof required in criminal proceedings, which is against the spirit of awarding compensation in accident cases. While awarding compensation in Claim Petitions arising out of a vehicular accident, the Tribunal has to keep in mind that the victims of a vehicular accident have to establish prima facie that the injury or the death was due to the rash and negligent driving of a motor vehicle. 10. While awarding compensation in Claim Petitions arising out of a vehicular accident, the Tribunal has to keep in mind that the victims of a vehicular accident have to establish prima facie that the injury or the death was due to the rash and negligent driving of a motor vehicle. 10. It is beaten law of the land that the Courts, while determining the cases of compensation in vehicular accidents, must not succumb to the niceties and hyper technicalities of law. It is also well established principle of law that negligence in vehicular accident cases 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, 1988, (for short, the 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. 11. 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 . 12. 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. 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.” 13. 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. ......... 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.” 14. The procedure and result of the execution of the decree is well known.” 14. This Court also, in the recent past, in series of judgments, has followed the similar principle and held that aim and object of awarding compensation in vehicular accident cases is just to ameliorate the sufferings of the victims and compensation is to be granted without succumbing to the niceties of law, hyper-technicalities and procedural wrangles and tangles. 15. Having said so, it is held that the claimants have proved that the driver, namely, Sanjeev Kumar, respondent No.2, had driven the offending truck rashly and negligently on the fateful day and had caused the accident in which the son of the claimants lost his life. Accordingly, the findings recorded by the Tribunal on issue No.1 are set aside. 16. Before dealing with issue No.2, I deem it proper to deal with other issues. Issues No.3 17. This issue pertains to the maintainability of the claim petition and the onus to prove the same was cast on respondents No.1 and 2 i.e. the owner and the driver of the offending vehicle, have not led any evidence to prove the said issues and discharged the onus. On the other hand, as discussed above, FIR was recorded against respondent No.2 Sanjeev Kumar, driver of the offending truck and final report in terms of Section 173 of the Cr.P.C. was also presented before the court of competent jurisdiction against the said Sanjeev Kumar. Therefore, I am of the view that the Tribunal has erroneously held that the claim petition was not maintainable. Accordingly, the findings recorded by the Tribunal on issue No.3 are set aside and it is held that the claim petition was maintainable. Issues No.4 18. The Tribunal under this issue has held that respondents No.1 and 2 have failed to prove how the claim petition was bad for non-joinder of necessary parties, and accordingly decided the said issue against respondents No.1 and 2. The said respondents have not challenged the findings recorded by the Tribunal by filing an appeal or cross objections. Accordingly, the findings returned by the Tribunal on this issue are upheld. Issues No.5 and 6 19. The said respondents have not challenged the findings recorded by the Tribunal by filing an appeal or cross objections. Accordingly, the findings returned by the Tribunal on this issue are upheld. Issues No.5 and 6 19. It was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence at the time of accident or the offending vehicle was being plied in contravention of the terms and conditions contained in the insurance policy, has not led any evidence. The Tribunal has decided these issues against the insurer and the insurer has not challenged the said findings. Accordingly, the findings returned by the Tribunal on these issues are upheld. Issue No.2 20. The claimants have pleaded that the deceased was a student of Engineering and was 19 years of age at the time of accident. However, there is nothing on the record suggestive of the fact that the deceased was pursuing Engineering at the time of death. Since the claimants attained the age of majority at the time of death, therefore, by exercising guess work, his income can be treated at par with a labourer and cannot be said to be less than Rs.4,000/- per month. The deceased was bachelor at the time of death. In view of the law laid down by the Apex Court in Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in, AIR 2009 SC 3104 , upheld by a larger Bench of the Apex Court in a case titled as Reshma Kumari & others versus Madan Mohan and another, reported in, 2013 AIR (SCW) 3120, 50% amount has to be deducted from the income of the deceased towards his personal expenses. Thus, the monthly loss of source of dependency to the claimants can be said to be Rs.2,000/-. 21. It has come on record that the deceased, at the time of accident, was 19 years of age, therefore, as per the dictum of the Apex Court in Sarla Verma’s case supra and 2nd Schedule attached to the Act, and also the ratio laid down in Munna Lal Jain and another vs. Vipin Kumar Sharma and others, JT 2015 (5) SC 1, multiplier of 15 is just and appropriate and is applied in the instant case. 22. 22. In view of the above, the claimants are held entitled to Rs.2000x12x15 = Rs.3,60,000/- as compensation under the head loss of source of dependency. 23. Apart from the above, the claimants are also held entitled to Rs.10,000/- each i.e. Rs.30,000/- in all, under the heads ‘loss of love and affection’, ‘loss of estate’ and ‘funeral expenses’. 24. Thus, in all, the claimants are held entitled to compensation to the tune of Rs.3,60,000/- + Rs.30,000/- = Rs.3,90,000/-, with interest at the rate of 7.5% per annum from the date of filing of the claim petition till deposit. 25. The factum of insurance is admitted. Therefore, the insurer/respondent No.3 is saddled with the liability. 26. The insurer is directed to deposit the amount, alongwith interest, in the Registry of this Court within a period of eight weeks from today, and on deposit, the same be released in favour of the claimants, in equal shares, through their respective bank accounts. 27. In view of the above discussion, the appeal is allowed, the impugned award is set aside and the claim petition is granted. The appeal stands disposed of accordingly.