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2016 DIGILAW 2058 (HP)

Pyar Chand v. Mangla Devi

2016-09-23

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against award, dated 25th March, 2011, made by the Motor Accident Claims Tribunal, Kinnaur Civil Division at Rampur Bushahr, H.P. (for short “the Tribunal”) in MAC Petition No. 58 of 2007, titled as Smt Mangla Devi and others versus Sh. Pyar Chand and another, whereby compensation to the tune of Rs.5,26,500/- with interest @ 7.5% per annum from the date of petition till its realization came to be awarded in favour of the claimants and owner-insured of the offending vehicle came to be saddled with liability (for short “the impugned award”). 2. The claimants and the insurer of the offending vehicle have not questioned the impugned award, thus, has attained finality so far it relates to them. 3. The appellant-owner-insured has questioned the impugned award on the grounds taken in the memo of appeal. 4. In order to determine this appeal, it is necessary to give a brief resume of the case, the womb of which has given birth to the instant appeal: 5. The claimants had invoked the jurisdiction of the Tribunal in terms of the mandate of Section 166 of the Motor Vehicles Act, 1988 (for short “MV Act”) for grant of compensation, as per the breakups given in the claim petition, was resisted by the respondents in the claim petition on the grounds taken in the respective memo of objections. 6. Following issues came to be framed by the Tribunal on 22nd May, 2009: “1. Whether on 16.5.2007 at 5.30 P.M. at Ganvi, the driver was driving Mahindra Pick up bearing No. HP66714 in rash and negligent manner and caused death of Balwant Singh? OPP 2. If issue No. 1 is proved, to what amount of compensation the petitioners are entitled to and from whom? OPP 3. Whether the driver of vehicle in question was not holding a valid and effective driving license at the time of the accident within the knowledge of insured, if so its effect? OPR 4. Whether the vehicle in question was being plied in violation of policy conditions i.e. without registration-cum-fitness certificate at the time of accident, if so its effect? OPR 5. Whether the deceased was travelling in the vehicle in question as gratuitous passenger at the time of accident? OPR 5A. Whether there was no privity of contract between respondents No. 1 and 2 insured and the insurer as alleged? OPR 5. Whether the deceased was travelling in the vehicle in question as gratuitous passenger at the time of accident? OPR 5A. Whether there was no privity of contract between respondents No. 1 and 2 insured and the insurer as alleged? OPR2 6. Relief.” 7. Parties have led the evidence. 8. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimants have proved that the driver, namely Shri Jitender alias Pappu, had driven Mahindra Pick Up, bearing registration No. HP660714, rashly and negligently, on 16th May, 2007, near place Ganvi, Police Station Jhakri and caused the accident in which deceased Balwant Singh sustained injuries and succumbed to the injuries. The driver of the offending vehicle also died in the accident. 9. I have gone through the findings recorded and perused the record and am of the considered view that the Tribunal has rightly recorded the findings. 10. Learned proxy counsel appearing on behalf of the appellant-owner-insured argued that the deceased was also negligent as he was not supposed to travel in the goods vehicles. Further argued that the appellant-owner-insured had strictly instructed the driver of the offending vehicle not to allow any person to travel in the vehicle. 11. The argument is not tenable for the reason that a passenger cannot be said to be negligent until the act of the passenger has not contributed towards the cause of the accident. Moreover, if the said argument is taken into consideration, it is admission on the part of the appellant-owner-insured that the deceased was travelling in the offending vehicle as gratuitous passenger. Having said so, the findings returned by the Tribunal on issue No. 1 are upheld. 12. Before dealing with issue No. 2, I deem it proper to determine issues No. 3 to 5A. Issue No. 3: 13. 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 to drive the same and the said fact was within the knowledge of the owner-insured. There is no proof on the file except mere statement of RW2, Shri Mohinder Sharma to this effect. 14. However, I have gone through the record. The driving licence of the driver of the offending vehicle is on the record as Ex. There is no proof on the file except mere statement of RW2, Shri Mohinder Sharma to this effect. 14. However, I have gone through the record. The driving licence of the driver of the offending vehicle is on the record as Ex. R3, the perusal of which does disclose that the driver was having a valid and effective driving licence to drive the offending vehicle. Accordingly, the findings returned by the Tribunal on issue No. 3 are upheld. Issue No. 4: 15. It was for the insurer to plead and prove that the offending vehicle was being plied in violation of policy conditions without registration-cum-fitness certificate at the time of the accident, has not led any evidence to this effect, thus, has failed to discharge the onus. Even otherwise, the relevant documents are on the record, which are valid and effective. Accordingly, the findings returned by the Tribunal on issue No. 4 are upheld. Issue No. 5: 16. The claimants have specifically pleaded in para 10 of the claim petition that the deceased was traveling in the ill fated vehicle and was going from Ganvi to Rampur. The appellant-owner-insured, in his reply, has specifically replied to para 10 of the claim petition as under: “Para 10 of the petition is denied for want of knowledge. It is further submitted that the replying respondent has specifically instructed his driver not to allow any person to travel in the vehicle of the respondent.” 17. I have gone through the discussion made by the Tribunal in paras 9 to 13 of the impugned award and am of the considered view that the Tribunal has rightly recorded the findings and held that the deceased was travelling as a gratuitous passenger in the offending vehicle. Having said so, the findings returned by the Tribunal on issue No. 5 are upheld. Issue No. 5A: 18. It was for the insurer to prove that there was no privity of contract between the insurer and the appellant-owner-insured, has failed to do so. Even otherwise, the findings recorded by the Tribunal on this issue are not in dispute. Accordingly, the findings returned by the Tribunal on issues No. 5A are upheld. Issue No. 2: 19. Learned proxy counsel appearing on behalf of the appellant-owner-insured argued that the amount awarded is excessive. 20. Even otherwise, the findings recorded by the Tribunal on this issue are not in dispute. Accordingly, the findings returned by the Tribunal on issues No. 5A are upheld. Issue No. 2: 19. Learned proxy counsel appearing on behalf of the appellant-owner-insured argued that the amount awarded is excessive. 20. The claimants have specifically averred in the claim petition that the deceased was a contractor and horticulturist by profession and his monthly income was Rs.10,000/- per month at the time of the accident. The Tribunal, after scanning the evidence, and exercising guess work, held that the income of the deceased was Rs.4,200/- per month. While deducting one third towards his personal expenses, the Tribunal has held that the claimants have suffered loss of dependency to the tune of Rs.2,800/- per month, which is not legally correct for the reason that the claimants were four in number and one fourth was to be deducted in view of the ratio laid down by the Apex Court in para 30 of the judgment rendered in the case titled as Sarla Verma (Smt) and others versus Delhi Transport Corporation and another, reported in, (2009) 6 SCC 121 . But, unfortunately, the claimants have not questioned the same, is reluctantly upheld. 21. The age of the deceased was 30 years at the time of the accident. The Tribunal has rightly applied the multiplier of 15' and has awarded compensation to the tune of Rs.5,04,000/- under the head 'loss of dependency'. The Tribunal has also awarded Rs.2500/- under the head 'funeral expenses', Rs.10,000/- under the head 'conventional amount' and Rs.10,000/- under the head 'loss of consortium', which is also maintained. 22. Having said so, the impugned award needs no interference. 23. Viewed thus, the impugned award is upheld and the appeal is dismissed. 24. The appellant-owner-insured is directed to deposit the awarded amount before the Tribunal 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 respective bank accounts. 25. Send down the record after placing copy of the judgment on the Tribunal's file.