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2016 DIGILAW 2392 (HP)

Daulat Ram v. Krishan Lal

2016-11-11

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 20th May, 2011, passed by the Motor Accident Claims Tribunal, Bilaspur, District Bilaspur, H.P., (for short, “the Tribunal”) in Claim Petition No.74 of 2006, titled Daulat Ram vs. Krishan Lal and others, whereby the claim petition came to be dismissed, (for short the “impugned award”). 2. Facts of the case, in brief, are that on 11.6.2004, at about 9.30 a.m., the claimant was going to Dharamshala from Bilaspur in Maruti Car bearing No.HP-24A-1048. When the said car reached near Damri in District Hamirpur, a truck bearing No.HP-23A-1470, being driven by driver Amar Singh rashly and negligently, hit the Maruti Car in which the claimant was traveling, resulting into injuries to the claimant in his right leg and multiple injuries on the whole body, was taken to Zonal Hospital, Hamirpur, fromwhere was referred to IGMC, Shimla where he remained admitted as indoor patient. Hence, the claim petition for compensation to the tune of Rs.8.00 lacs, as per the break-ups given therein. 3. The claim petition was resisted by the respondents and following issues were framed: “1. Whether the injuries sustained by the petitioner on 11.6.2004 at about 1.30 P.M. near Vill. Damri, Distt. Hamirpur, H.P. were due to rash and negligent driving of Truck No.HP-23A-1470 by respondent No.2, as alleged, if so, its effect? OPP 2. If issue N.1 supra is proved in affirmative, whether the petitioner is entitled to compensation, if so, to what extent and from whom? OPP 3. Whether the present claim petition is bad for non-joinder and mis-joinder of necessary parties, as alleged? OPRs. 4. Whether the offending vehicle was being driven by its driver without valid and effective driving licence as alleged? OPR-3 5. Whether the offending vehicle was being driven without valid documents i.e. registration certificate, fitness certificate, route permit, as alleged? OPR-3. 6. Whether accident took place as a result of contributory negligence of petitioner and respondent No.2 as alleged? OPR-3 7. Relief.” 4. In order to prove his claim, the claimant stepped into the witness box as PW-1 and also examined three other witnesses, namely, Dr.M.I. Ahmad as PW-2, Hari Chand as PW-3, and Amar Nath as PW-4. On the other hand, driver of the offending truck appeared as RW-1. Respondents also examined RW-2 Naresh Kumar and RW-3 Usha. 5. Relief.” 4. In order to prove his claim, the claimant stepped into the witness box as PW-1 and also examined three other witnesses, namely, Dr.M.I. Ahmad as PW-2, Hari Chand as PW-3, and Amar Nath as PW-4. On the other hand, driver of the offending truck appeared as RW-1. Respondents also examined RW-2 Naresh Kumar and RW-3 Usha. 5. The Tribunal, after scanning the evidence, held that the claimant has failed to prove that the accident was the outcome of rash and negligent driving of the driver Amar Singh, which findings, factually and legally, are incorrect and wrong for the following reasons. 6. The claimant has specifically pleaded in the claim petition that the driver of the offending truck, namely, Amar Singh, had driven the offending truck rashly and negligently on the fateful date, and had caused the accident in which the claimant sustained injuries. The respondents have not specifically denied the said averment made by the claimant. All the witnesses examined by the claimant have stated that the accident was the outcome of rash and negligent driving of the driver of the offending truck. Rapat dated 11th June, 2004, was entered in Police Station, Hamirpur and has been proved on record as Ext.RW-2/A by Head Constable Naresh Kumar, who appeared as RW-2. He has admitted that the rapat Ext.RW-2/A was recorded at the instance of the claimant and one other person. 7. In the given circumstances, the lodging of FIR is immaterial and cannot be a ground to dismiss a claim petition. 8. 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. 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. 9. 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. 9. 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. 10. 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 . 11. 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. 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.” 12. 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.” 12. 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.” 13. This Court also, in the recent past, in series of judgments, has followed the similar principle and held that granting of compensation is just to ameliorate the sufferings of the victims and compensation is to be granted without succumbing to the niceties of law, hypertechnicalities and procedural wrangles and tangles. 14. This Court also, in the recent past, in series of judgments, has followed the similar principle and held that granting of compensation is just to ameliorate the sufferings of the victims and compensation is to be granted without succumbing to the niceties of law, hypertechnicalities and procedural wrangles and tangles. 14. Having said so, I am of the considered view that the Tribunal has fallen in an error in holding that the claimant has failed to prove that the accident was the outcome of rash and negligent driving of the driver of the offending truck. Accordingly, the findings returned by the Tribunal on issue No.1 are set aside, and it is held that the accident was the outcome of rash and negligent driving of the driver of the offending truck, namely, Amar Singh. 15. Before issue No.2 is determined, I deem it proper to decide issues No.3 to 6 at the first instance. 16. Onus to prove issue No.3 was on the respondents, have not led any evidence to prove the same. However, I have gone through the claim petition. The respondents have failed to show how the claim petition was not maintainable due to non-joinder and mis-joinder of necessary parties. The Tribunal has rightly decided the said issue against the respondents and the said findings are accordingly upheld. 17. In order to prove Issue No.4, the insurer was to plead and prove that the driver of the offending truck, namely, Amar Singh, was not having a valid and effective driving licence, has not led any evidence. However, I have gone through the pleadings and the record. Copy of the driving licence has been proved on record as Ext.RA, a perusal whereof does disclose that the driver of the offending truck had valid and effective driving licence at the time of accident. Accordingly, the findings returned by the Tribunal on this issue are also upheld. 18. As far as issue No.5 is concerned, it is for the insurer to plead and prove, by leading evidence, that the owner of the offending vehicle had committed willful breach, has not led any evidence. In the absence of any evidence having been led by the insurer, the Tribunal has decided this issue against the insurer and the insurer has not challenged the said findings, either by way of appeal or cross objections. Thus, the said findings recorded by the Tribunal have attained finality. In the absence of any evidence having been led by the insurer, the Tribunal has decided this issue against the insurer and the insurer has not challenged the said findings, either by way of appeal or cross objections. Thus, the said findings recorded by the Tribunal have attained finality. Notwithstanding that, I have gone through the record. Smt.Usha, Clerk from the office of RTO, Bilaspur has been examined as RW-3, who has stated that the offending truck was having all documents at the time of accident. Having said so, the findings returned by the Tribunal on issue No.5 are also upheld. 19. Issue No.6 pertains qua contributory negligence of the claimant and the driver of the offending truck, namely, Amar Singh. The insurer has pleaded in its reply that the accident was the outcome of contributory negligence. The Tribunal has recorded the findings that the accident was not the outcome of rash and negligent driving of the driver of the offending truck, which findings have been set aside by this Court while discussing issue No.1 supra and it has been held that the accident was the outcome of rash and negligent driving of the driver of the offending truck. Accordingly, this issue is governed by the findings returned on issue No.1 and is accordingly, decided against the insurer. Issue No.2. 20. Now the question is, to what amount of compensation the claimant is entitled to. Due to the accident, the claimant sustained fracture on his leg and injuries on his body, was firstly taken to Zonal Hospital, Hamirpur wherefrom was referred to Indira Gandhi Medical College, Shimla remained admitted there till 23rd June, 2004. Discharge slips are placed on record as Exts.PW-1/A and PW-1/B. The claimant suffered 15% permanent disability, as per disability certificate Ext.PW-2/A. PW-2 Dr.M.I. Ahmad has stated that due to the injury sustained by the claimant, he would face difficulty in sitting on the ground and going upstairs/downstairs. In cross examination, this witness has admitted that the disability is in regard to the lower limb and not qua whole body. 21. The claimant has not placed on record anything about the amount he spent for the purchase of medicines etc. Thus, keeping in view the facts of the case, the injury sustained and the disability suffered, I deem it proper to award a sum of Rs.1,30,000/- in favour of the claimant, under the following heads: Sl. 21. The claimant has not placed on record anything about the amount he spent for the purchase of medicines etc. Thus, keeping in view the facts of the case, the injury sustained and the disability suffered, I deem it proper to award a sum of Rs.1,30,000/- in favour of the claimant, under the following heads: Sl. No. Heads Amount 1 Pain and sufferings Rs.35,000/- 2 Loss of amenities of life Rs.35,000/- 3 Attendant charges Rs.5,000/- 4 Transportation charges Rs.10,000/- 5 Future medical treatment Rs.10,000/- 6 Medical expenses incurred Rs.30,000/- 7 Special diet Rs.5,000/- Total Rs.1,30,000/- 22. The amount of compensation shall carry interest at the rate of 7.5% per annum from the date of impugned award till deposit. 23. The factum of insurance is admitted. Therefore, the insurer is saddled with the liability. The insurer is directed to deposit the entire amount alongwith interest within eight weeks from today and on deposit, the same be released in favour of the claimant forthwith through bank account. 24. The appeal is allowed and stands disposed of accordingly.