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2016 DIGILAW 2335 (HP)

Rameshwar v. Reshmi Devi

2016-11-04

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is award, dated 17th December, 2011, made by the Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P. (for short “the Tribunal”) in MAC Petition No. 40MAC/2 of 2009, titled as Rameshwar and another versus Reshmi Devi and another, whereby the claim petition filed by the appellants-claimants came to be dismissed (for short “the impugned award”). 2. Appellants-claimants had invoked the jurisdiction of the Tribunal under Section 163A 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 and the following issues came to be framed by the Tribunal on 6th April, 2010: “1. Whether Pawan Kumar had died on account of use of tractor No. HP184506 on 1052009 at about 7.20 AM near Tribhuwan, Shambhuwala, as alleged? OPP 2. In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP 3. Whether the petition is not maintainable in the present form, as alleged? OPR1& 2 4. Whether the vehicle was being plied in violation of the terms and conditions of insurance policy? OPR2 5. Relief.” 3. The Tribunal has only determined issues No. 1 to 3 and dismissed the claim petition without returning findings viz-a-viz issue No. 4. 4. The claimants have specifically pleaded that the deceased was engaged/employed as a driver by the owner-insured of the offending vehicle. The owner-insured, while filing reply to the claim petition, has denied the said fact, but has stated in para 4 of the reply that the deceased was not a driver, but was a labourer. 5. Thus, the deceased was in the employment of the owner-insured of the offending vehicle whether as a labourer or a driver. So, the claimants have a legal right to claim compensation in terms of the Workmen’s Compensation Act, 1923 (for short “WC Act”) without getting involved in the niceties of rashness, negligence and other legal grounds. 6. Section 167 of the MV Act provides another option to the claimants, other than filing a claim before an authority under the WC Act, to file a claim petition before the Claims Tribunal enabling them to have the compensation more than what is provided in terms of WC Act. 7. 6. Section 167 of the MV Act provides another option to the claimants, other than filing a claim before an authority under the WC Act, to file a claim petition before the Claims Tribunal enabling them to have the compensation more than what is provided in terms of WC Act. 7. The factum of deceased being a labourer and his death are admitted. It is also proved that the deceased had sustained injuries and succumbed to the said injuries because he was crushed under the offending vehicle. Having said so, the claimants have proved that the deceased had died on account of use of the motor vehicle, i.e. the offending vehicle. Accordingly, the findings returned by the Tribunal on issue No. 1 are set aside and it is decided in favour of the claimants and against the respondents. 8. Now, the question is – whether the claimants are entitled to compensation, if so, from whom and in which proportion? 9. The Tribunal had to determine issue No. 4 before dealing with issue No. 2. The Tribunal has held that the claim petition was not maintainable. The said findings are not legally correct for the simple reason that the claimants are the victims of a vehicular accident and, as discussed hereinabove, were entitled to compensation as per the mandate of WC Act or Section 167 of the MV Act. Thus, the claim petition was 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. 10. The Tribunal has not returned any finding on issue No. 4, which requires determination. The driving licence of the deceased, as it has been averred that he was working as a driver, is not on the record. The final report under Section 173 of the Code of Criminal Procedure (for short “CrPC”) is also not on record. 11. 10. The Tribunal has not returned any finding on issue No. 4, which requires determination. The driving licence of the deceased, as it has been averred that he was working as a driver, is not on the record. The final report under Section 173 of the Code of Criminal Procedure (for short “CrPC”) is also not on record. 11. In the given circumstances, the impugned award is set aside and the case is remanded to the Tribunal for determining issues No. 2 and 4 with a direction to the Tribunal to provide four opportunities with effect from 1st December, 2016 to 31st December, 2016 to the claimants for leading evidence, two opportunities to the owner-insured of the offending vehicle with effect from 1st January, 2017 to 15th January, 2017, thereafter, two opportunities to the insurer with effect from 16th January, 2017 to 31st January, 2017 and to conclude the proceedings by or before 1st March, 2017, after hearing the parties. 12. Parties are directed to cause appearance before the Tribunal on 1st December, 2016. 13. Send down the record after placing copy of the judgment on the Tribunal's file.