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Himachal Pradesh High Court · body

2016 DIGILAW 2539 (HP)

Prit Pal Singh v. Radha Devi

2016-12-02

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Both these appeals are outcome of one vehicular accident and award, thus, I deem it proper to club both these appeals and determine the same by this common judgment. 2. Challenge in both these appeals is to award, dated 28th July, 2012, made by the Motor Accident Claims Tribunal, Fast Track Court, Solan, Himachal Pradesh (hereinafter referred to as “the Tribunal”) in MACT Petition No. 1FTC/2 of 2007, titled as Smt. Radha Devi and others versus Shri Lala Ram alias Lal and others, whereby compensation to the tune of Rs. 5,10,000/- with interest @ 9% per annum from the date of filing of the claim petition till its realization came to be awarded in favour of the claimants and the insurer of offending truck and motorcyclist and the owner of the offending motorcycle were saddled with liability in equal shares (hereinafter referred to as “the impugned award”). 3. The motorcyclist, owner insured, driver and insurer of the offending truck have not questioned the impugned award on any count, thus, the same has attained finality so far it relates to them. 4. Owner of the motorcycle, namely Shri Prit Pal Singh, has questioned the impugned award by the medium of FAO No. 449 of 2012 on the grounds taken in the memo of the appeal. 5. By the medium of FAO No. 33 of 2013, the claimants have called in question the impugned award on the ground of adequacy of compensation. 6. In order to determine both these appeals, it is necessary to give a brief resume of the facts of the case, the womb of which has given birth to the appeals in hand. 7. The claimants filed claim petition before the Tribunal for grant of compensation to the tune of Rs. 20,00,000/-, as per the breakups given in the claim petition, on the grounds taken in the memo of the claim petition, was resisted by the respondents and following issues came to be framed by the Tribunal on 1st March, 2008: “1. Whether Shiv Kumar @ Robin died in a motor vehicle accident which took place on 2252006 due to negligence of respondents No. 1 and 5? OPP 2. If issue No. 1 is proved in affirmative, whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP 3. Whether Shiv Kumar @ Robin died in a motor vehicle accident which took place on 2252006 due to negligence of respondents No. 1 and 5? OPP 2. If issue No. 1 is proved in affirmative, whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP 3. Whether driver of truck No. HP114331 was not holding a valid driving licence on the date of accident, if so its effect? OPR3 4. Whether vehicle i.e. truck No. HP114331 was not having valid registration certificate, route permit and other documents on the date of accident and was being driven in breach of terms and conditions of policy, as alleged, if so its effect? OPR3 5. Whether respondent No. 4 had sold motor cycle in question bearing No. HR492397 to respondent No. 6 Sanjeev Kumar on 1252006, if so its effect? OPR4 6. Whether the petition is not maintainable? OPR6 7. Whether the petitioners have no cause of action against respondent No. 6? OPR6 8. Whether the petition is bad for non-joinder of necessary parties? OPR6 9. Relief.” 8. The Tribunal, after scanning the evidence, oral as well as documentary, awarded compensation in favour of the claimants in terms of the impugned award. Hence, the instant appeals. FAO No. 449 of 2012: 9. Learned counsel appearing on behalf of the appellant in FAO No. 449 of 2012 argued that the accident was not outcome of the contributory negligence, but was the result of the rash and negligent driving of the offending truck by its driver, namely Shri Lala Ram alias Lal. 10. The argument of the learned counsel for the appellant is not tenable for the following reasons: 11. The claimants have specifically pleaded in the claim petition that the accident was outcome of contributory negligence, which fact has not specifically been denied by the respondents in the claim petition, thus, is held to be an admission on their part. 12. The final report under Section 173 of the Code of Criminal Procedure (hereinafter referred to as “CrPC”) is on the record as Ext. RW1/C, the perusal of which does disclose that the challan has been presented before the Court of competent jurisdiction against the diver of the offending truck as well as the motorcyclist, thus, is a case of contributory negligence. 13. The question is what is contributory negligence? RW1/C, the perusal of which does disclose that the challan has been presented before the Court of competent jurisdiction against the diver of the offending truck as well as the motorcyclist, thus, is a case of contributory negligence. 13. The question is what is contributory negligence? When the drivers of two vehicles involved in the accident have not taken due care and caution while driving their respective vehicles and have contributed in causing the accident, is contributory negligence. 14. The Apex Court in case titled as Kamlesh and others versus Attar Singh and others reported in 2015 AIR SCW 6158, in para 8 has held as under: “8. We have heard learned counsel for the parties and perused, inter alia, the evidence on record of Ram Parshad PW2 and Devender PW.3. The method and manner in which the accident has taken place leaves no room for doubt that it was a case of composite negligence of drivers of both the vehicles, that is the driver of Maruti car and driver of tempo. Though Police has registered a case against driver of the tempo Attar Singh and has filed a charge-sheet but the same cannot be said to be conclusive. Though, Attar Singh has stated that it was in order to oblige the driver of the Maruti car, a case was registered against him. Be that as it may. It appears both the drivers have tried to save their liability. In such circumstances, the version of eyewitnesses, PW.2 and PW.3 assumes significance. The fact remains that car had dashed the tempo on the middle portion near footstep. Thus the method and manner in which the accident has taken place leaves no room for doubt that both the drivers were negligent. Man may lie but the circumstances do not is the cardinal principle of evaluation of evidence. No effort has been made by the High Court to appreciate the evidence and method and manner in which the accident has taken place. Both the aforesaid witnesses have stated Maruti Car was in excessive speed. However, it appears driver of tempo also could not remove his vehicle from the way of Maruti Car. Thus, both the drivers were clearly negligent. It appears from the facts and circumstances that both the drivers were equally responsible for the accident. Thus, it was a case of composite negligence. However, it appears driver of tempo also could not remove his vehicle from the way of Maruti Car. Thus, both the drivers were clearly negligent. It appears from the facts and circumstances that both the drivers were equally responsible for the accident. Thus, it was a case of composite negligence. Both the drivers were joint "tortfeasors", thus, liable to make payment of compensation.” 15. The Apex Court in another case titled as Meera Devi and another versus H.R.T.C. and others, reported in 2014 AIR SCW 1709, has laid down the similar principles of law. It is profitable to reproduce para 10 of the said judgment herein. “10. To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case.” 16. The Apex Court in the case titled as Khenyei versus New India Assurance Co. Limited & others, reported in 2015 AIR SCW 3169, has laid down the same principles of law. 17. Applying the test and while going through the facts of the case and the record, it can be safely held that both the drivers have driven the offending vehicles rashly and negligently and the accident was outcome of contributory negligence. 18. The Tribunal, while making discussions in para 14 of the impugned award, has rightly decided issue No. 1, needs no interference. 19. Viewed thus, the appeal filed by the owner of the motorcycle, i.e. FAO No. 449 of 2012, merits to be dismissed. FAO No. 33 of 2013: 20. The question to be determined in this appeal is – whether the amount awarded is inadequate? The answer is in the negative for the following reasons: 21. I have gone through the impugned award as well as the record and am of the considered view that the Tribunal has rightly assessed income of the deceased at Rs. 5,000/- per month, i.e. Rs. 60,000/- per annum, from all sources. 22. The answer is in the negative for the following reasons: 21. I have gone through the impugned award as well as the record and am of the considered view that the Tribunal has rightly assessed income of the deceased at Rs. 5,000/- per month, i.e. Rs. 60,000/- per annum, from all sources. 22. The deceased was a bachelor. Thus, the Tribunal has rightly made deductions to the extent of 50% towards his personal expenses in view of the law 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 was upheld by a larger Bench of the Apex Court in Reshma Kumari & Ors. versus Madan Mohan & Anr., reported in 2013 AIR SCW 3120. 23. Admittedly, the deceased was 21 years of age at the time of the accident. The multiplier of 15' was applicable in view of the ratio laid down by the Apex Court in Sarla Verma's and Reshma Kumari's cases (supra) read with the Second Schedule appended with the Motor Vehicles Act, 1988 (hereinafter referred to as “MV Act”). However, the multiplier of 16' applied by the Tribunal is maintained. 24. Viewed thus, the Tribunal has rightly made the discussions in paras 15 to 18 of the impugned award. The amount awarded cannot be said to be inadequate in any way, is upheld accordingly. 25. Having said so, the appeal filed by the claimants, i.e. FAO No. 33 of 2013, deserves to be dismissed. 26. Having glance of the above discussions, the impugned award is upheld and both the appeals are dismissed. 27. Registry is directed to release the awarded amount 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 after proper identification. 28. Send down the record after placing copy of the judgment on the Tribunal's file.