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2016 DIGILAW 1946 (HP)

Radhi Devi v. Savitri

2016-09-09

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. 1. Subject matter of this appeal is award, dated 6th August, 2011, made by the Motor Accident Claims Tribunal, Fast Track Court, Shimla, H.P. (for short “the Tribunal”) in M.A.C. No. 52-S/2 of 2008, titled as Smt. Radhi Devi and others versus Bhagwan Dass Chauhan and others, whereby the claim petition filed by the appellant-claimant-injured came to be dismissed (for short “the impugned award”). 2. The claimants invoked the jurisdiction of the Tribunal as per the mandate of Section 166 of the Motor Vehicles, Act, 1988 (for short “MV Act”) for grant of compensation to the tune of Rs.10,00,000/-, as per the breakups given in the claim petition, on the grounds taken in the memo of the claim petition. 3. The owner-insured and driver of the offending vehicle did not choose to appear before the Tribunal and were set ex-parte. 4. The claim petition was resisted by the insurer on the grounds taken in the memo of the objections. 5. On the pleadings of the parties, following issues came to be framed by the Tribunal on 17th August, 2009; “1. Whether Shri Ram Lal died due to the rash and negligent driving of vehicle No. HP-09A-0897 by the respondent/driver Shri Keshva Nand? OPP 2. If issue No. 1 is proved in affirmative, whether the petitioners are entitled to the compensation as claimed. If so, its quantum and from whom? OP Parties 3. Whether the vehicle was being plied in violation of the terms and conditions of the insurance policy as alleged. If so, its effect? OPR-3 4. Whether the petition is not maintainable in the present form? OPR-3 5. Whether respondent Shri Keshva Nand was not holding and possessing valid and effective driving licence to drive the vehicle, as alleged. If so, its effect? OPR-3 6. Whether late Shri Ram Lal was travelling as a gratuitous passenger, as alleged? OPR-3 7. Relief.” 6. Parties have led evidence Issue No. 1: 7. The Tribunal has recorded the findings in para 11 of the impugned award that the claimants have proved that deceased Ram Lal died due to the negligence of the driver of the offending vehicle. The owner-insured, driver and insurer of the offending vehicle have not questioned the said findings. Accordingly, the findings returned by the Tribunal on issue No.1 are upheld. 8. The owner-insured, driver and insurer of the offending vehicle have not questioned the said findings. Accordingly, the findings returned by the Tribunal on issue No.1 are upheld. 8. Before dealing with issue No. 2, I deem it proper to determine issues No. 3 to 6. Issue No. 3, 5 and 6: 9. It was for the insurer to plead and prove the said issues, have not led any evidence to this extent, thus, has failed to discharge the onus. 10. I deem it proper to record herein that in another claim petition arising out of the same accident, the insurer was saddled with liability by the Claims Tribunal. The insurer questioned the same by the medium of appeal before this Court in the case titled as Kala Devi & others versus Bhagwan Dass Chauhan & others, reported in, 2014 ACJ 2626, whereby appeal was dismissed and the findings of the Tribunal that the insurer has to satisfy the award were upheld, was questioned before the Apex Court by the claimants by the medium of C.A. No. 9972 of 2014, reported in 2014 ACJ 2875 , and the said findings came to be upheld. Thus, in this case also, the insurer has to be saddled with liability. Issues No. 3, 5 and 6 are accordingly decided against the insurer. Issue No. 4: 11. The Tribunal has decided the said issue against the claimants on the premise that the claimants had filed a claim petition, which was dismissed as withdrawn, thus, were caught in terms of Order XXIII Rule 1 (4) of the Code of Civil Procedure (for short “CPC”). 12. The Tribunal has fallen in a grave error in dismissing the claim petition as per the mandate of Order XXIII Rule 1 (4) CPC for the reasons to be recorded hereinafter. 13. The perusal of the record does disclose that the claim petition was withdrawn by the claimants with liberty to file fresh claim petition (the copy of the statement is at page 48 of the record). Thus, the claimants were within their rights to file fresh claim petition. Moreover, the claimants have not concealed the said fact and have mentioned the same in the opening portion of the claim petition. 14. The proceedings under the MV act are summary in nature and all the provisions of the CPC are not applicable. Thus, the claimants were within their rights to file fresh claim petition. Moreover, the claimants have not concealed the said fact and have mentioned the same in the opening portion of the claim petition. 14. The proceedings under the MV act are summary in nature and all the provisions of the CPC are not applicable. However, the State of Himachal Pradesh has framed Himachal Pradesh Motor Vehicles Rules, 1999 (for short “MV Rules”), in terms of which some of the provisions of CPC, including Order XXIII Rules 1 to 3, have been made applicable in terms of Rule 232 of the Rules. 15. The Tribunal has dismissed the claim petition in terms of the mandate of Order XXIII Rule 1 (4) CPC, which is not legally correct. Accordingly, the findings returned by the Tribunal on issue No.4 are set aside and it is decided in favour of the claimants and against the insurer. Issue No. 2: 16. I have gone through the assessment made by the Tribunal in paras 12 and 13 of the impugned award, is just, adequate and appropriate, needs no interference. 17. Viewed thus, the claimants are held entitled to compensation to the tune of Rs.8,23,000/- with interest @ 7.5 % per annum from the date of the claim petition till its realization and the insurer is saddled with liability. 18. Having glance of the above discussions, the claim petition is granted and the impugned award is modified, as indicated hereinabove, and the appeal is allowed. 19. The insurer is directed to deposit the awarded amount before the Registry within eight weeks. On deposition, the same be released in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee's account cheque or by depositing the same in their bank accounts. 20. Send down the record after placing copy of the judgment on Tribunal's file.