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2016 DIGILAW 2194 (HP)

Mansho Devi v. Meera Devi

2016-10-07

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Mr. Nitin Thakur, Advocate, put in appearance on behalf of respondents No. 1 and 2 and prayed that the exparte proceedings drawn against respondents No. 1 and 2 in terms of order, dated 12th August, 2016, be set-aside. His statement is taken on record. Ordered accordingly. 2. Subject matter of this appeal is award, dated 31st May, 2010, made by the Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur, Himachal Pradesh (Camp at Bilaspur) (for short “the Tribunal”) in M.A.C. No. 51 of 2005, titled as Mansho Devi versus Smt. Meera Devi and others, whereby the claim petition filed by the appellant-claimant came to be dismissed (for short “the impugned award”). 3. The appellant-claimant-injured has called in question the impugned award on the ground the Tribunal has fallen in an error in dismissing the claim petition on the ground that the claimant-appellant has failed to prove that the offending vehicle was being driven by its driver, i.e. respondent No. 2, rashly and negligently at the time of the accident. 4. In order to determine this appeal, it is necessary to give a flashback of the case, the womb of which has given birth to the appeal in hand. 5. The appellant-claimant invoked the jurisdiction of the Tribunal for grant of compensation to the tune of Rs. 15 lacs, as per the breakups given in the claim petition, on the ground that she has lost her husband in a vehicular accident, which was caused by the driver, namely Shri Desh Raj, while driving Mohindra Max Pick Up Number applied for, rashly and negligently on 26th September, 2004, at about 8.30 A.M. at Village Bharoli Lag, District Bilaspur, H.P., in which deceased Sukh Ram sustained injuries and succumbed to the said injuries. 6. The claim petition was resisted by the respondents on the grounds taken in the respective memo of objections. 7. On the pleadings of the parties, following issues came to be framed by the Tribunal on 20th November, 2008: “1. Whether the deceased Sukh Ram was crushed by Trala No. applied for being driven by respondent No. 2 negligently on 26.9.2004 at 8.30 p.m. at Bharoli Lag at Distt. Bilaspur as alleged? OPP 2. If issue No. 1 is proved in affirmative to what amount and from whom the petitioner is entitled for compensation? OPP 3. Whether the claim petition is not maintainable as alleged? Bilaspur as alleged? OPP 2. If issue No. 1 is proved in affirmative to what amount and from whom the petitioner is entitled for compensation? OPP 3. Whether the claim petition is not maintainable as alleged? OPR 1 to 3 4. Whether the petitioner has no cause of action to file the petition as claimed? OPR1 5. Whether no accident had taken place on 26.7.2004 at 8.30 p.m. near Bharoli Lag and Sukh Ram had not died in such an accident as alleged? OPR 3 6. Whether the alleged accident dated 26.9.2004 had taken place solely due to negligence of driver of the alleged Tralla and deceased had been crushed thereby as alleged? OPR3 7. Whether the vehicle in question was being driven by an unauthorised person having no valid and effective driving licence to drive such class of vehicle and was also being plied in violation of insurance policy if any, as alleged? OPR3 8. Relief.” 8. The appellant-claimant has examined three witnesses and herself stepped into the witness box in support of her claim. The insurer has examined Shri Mohinder Singh as RW1. The owner insured and the driver of the offending vehicle themselves stepped into the witness box as RW2 and RW3, respectively. 9. The Tribunal after scanning the evidence, oral as well as documentary, dismissed the claim petition in terms of the impugned award. Issue No. 1: 10. The Tribunal has held that the appellant-claimant has miserably failed to prove that the offending vehicle was owned by respondent No. 1 and at the time of the accident, was being driven by respondent No. 2 and decided the said issue against the appellant-claimant. 11. Admittedly, FIR No. 138 of 2004, dated 26th September, 2004 (Ext. PW3/A) was registered at Police Station Talai, District Bilaspur. The Tribunal has fallen in an error in holding that the driver of the offending vehicle, i.e. respondent No. 2, namely Shri Desh Raj, has not been prosecuted for causing this accident in the criminal case instituted on the basis of FIR No. 138 of 2004. The said finding is factually and legally incorrect for the following reasons: 12. The Tribunal has fallen in an error in holding that the driver of the offending vehicle, i.e. respondent No. 2, namely Shri Desh Raj, has not been prosecuted for causing this accident in the criminal case instituted on the basis of FIR No. 138 of 2004. The said finding is factually and legally incorrect for the following reasons: 12. It is apt to record herein that the appellant-claimant has moved CMP No. 70 of 2011 in terms of the mandate of Order 41 Rule 27 of the Code of Civil Procedure for placing on record the additional document, i.e. copy of the final report challan presented in case FIR No. 138 of 2004 in terms of Section 173 of the Code of Criminal Procedure before the Court of competent jurisdiction, i.e. Judicial Magistrate 1st Class, Court No. 1, Ghumarwin, District Bilaspur. The application is granted and copy of the final report challan is taken on record. CMP No. 70 of 2011 is disposed of accordingly. 13. Perusal of the said final report-challan does disclose that the final report challan in FIR No. 138 of 2004 has been presented against Shri Desh Raj, i.e. respondent No. 2, who was driving the offending vehicle at the time of the accident. 14. Thus, it has, prima facie, been proved that the driver, namely Shri Desh Raj, had driven the offending vehicle rashly and negligently at the relevant point of time. 15. Moreover, respondent No. 3, i.e. the insurer, while filing reply before the Tribunal, has admitted that the accident was outcome of negligent driving of the offending vehicle by its driver. It is apt to reproduce the relevant portion of para 3 of the preliminary submissions of the reply filed on behalf of insurer respondent No. 3 hereinbelow: “3. …....... It is submitted that the alleged accident on 26.9.04 also took place solely due to the negligence of the driver of the alleged “Tralla” as he kept it start and he, himself, got down from it where the road was narrow and sloppy and suddenly the said “Tralla” came back itself and crushed the deceased. …...” 16. Viewed thus, it is held that the Tribunal has fallen in an error in determining issue No. 1. …...” 16. Viewed thus, it is held that the Tribunal has fallen in an error in determining issue No. 1. The findings returned by the Tribunal on this issue are set aside and it is held that the driver of the offending vehicle had driven the offending vehicle rashly and negligently at the relevant point of time and caused the accident, in which deceased Sukh Ram sustained injuries and succumbed to the said injuries. Accordingly, issue No. 1 is decided in favour of the appellant-claimant. 17. Before dealing with issue No. 2, I deem it proper to determine issues No. 3 to 7. Issue No. 3 and 4: 18. It was for the respondents to plead and prove that the claim petition was not maintainable and the appellant-claimant has no cause of action to file the claim petition. As discussed hereinabove, the appellant-claimant became the victim of the vehicular accident, thus, was well within her rights to maintain the claim petition. The Tribunal, without making any discussion, decided both these issues in favour of the respondents. The findings recorded by the Tribunal on both issues No. 3 and 4 are set aside and the said issues are decided in favour of the appellant-claimant and against the respondents. Issues No. 5 and 6: 19. Learned counsel for the insurer respondent No. 3 had not pressed both these issues before the Tribunal and the same came to be decided against it, has not questioned the said findings. Accordingly, the findings returned by the Tribunal on issues No. 5 and 6 are upheld. Issue No. 7: 20. The driving licence of the driver of the offending vehicle is on the record as Mark R2, the perusal of which does disclose that the driver of the offending vehicle was having a valid and effective driving licence to drive the same. There is no proof on the file to show that the offending vehicle was being driven in violation of the insurance policy. Accordingly, the findings returned by the Tribunal on issue No. 7 are set aside and the said issue is decided against respondent No. 3 insurer. Issue No. 2: 21. Admittedly, the deceased was 65 years of age at the time of the accident, left behind his wife, i.e. the appellant claimant, who was 55 years of age at the time of filing of the claim petition. Issue No. 2: 21. Admittedly, the deceased was 65 years of age at the time of the accident, left behind his wife, i.e. the appellant claimant, who was 55 years of age at the time of filing of the claim petition. She is the sufferer and only she knows what difficulties she has faced right from the date of the accident till today. She is not only deprived of her source of income, but is also deprived of her matrimonial home and matrimonial life in her old age because of the accident due to which she had to part away with her counterpart. 22. It has been averred that the deceased was earning Rs. 10,000/- per month as shopkeeper and agriculturist. Roughly, it can safely be held that he was earning not less than Rs. 6,000/- per month from all sources. One-third has to be deducted towards his personal expenses. Thus, it is held that the appellant-claimant has lost source of income/ dependency to the tune of Rs. 4,000/- per month. 23. Keeping in view the ratio laid down by the Apex Court in the case titled as Sarla Verma (Smt) and others versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 , which has been upheld by a larger Bench of the Apex Court in Reshma Kumari & Ors. versus Madan Mohan & Anr., reported in 2013 AIR SCW 3120, read with the Second Schedule appended with the Motor Vehicles Act, 1988 (for short “MV Act”), multiplier of 5' is just and appropriate. 24. Accordingly, it is held that the appellant-claimant is entitled to compensation to the tune of Rs. 4,000/x 12 x 5 = Rs. 2,40,000/- under the head 'loss of income'. 25. The appellant-claimant is also held entitled to compensation to the tune of Rs. 10,000/- each under the heads 'loss of consortium', 'loss of love and affection' 'loss of estate' and 'funeral expenses'. 26. Viewed thus, the appellant-claimant is held entitled to compensation to the tune of Rs. 2,40,000/- + Rs. 10,000/- + Rs. 10,000/- + Rs. 10,000/- + Rs. 10,000/- = Rs. 2,80,000/- with interest @ 7.5% per annum from the date of the claim petition till its realization. 27. The question is – who is to be saddled with liability? There is no dispute viz-a-viz the factum of insurance. Accordingly, respondent No. 3insurer is saddled with liability. 28. 10,000/- + Rs. 10,000/- + Rs. 10,000/- + Rs. 10,000/- = Rs. 2,80,000/- with interest @ 7.5% per annum from the date of the claim petition till its realization. 27. The question is – who is to be saddled with liability? There is no dispute viz-a-viz the factum of insurance. Accordingly, respondent No. 3insurer is saddled with liability. 28. Having glance of the above discussions, the impugned award is set aside, appeal is allowed, compensation is awarded and claim petition is granted, as indicated hereinabove. 29. 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 appellant-claimant through payee's account cheque or by depositing the same in her bank account. 30. Send down the record after placing copy of the judgment on Tribunal's file.