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Himachal Pradesh High Court · body

2016 DIGILAW 2734 (HP)

Gian Chand v. Mohan Transport Company

2016-12-26

CHANDER BHUSAN BAROWALIA

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JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present appeal under Section 173 of the Motor Vehicles Act, 1988, is maintained by the appellants/claimants/petitioners (hereinafter referred to as the “petitioners”) for enhancing the amount awarded by learned Motor Accident Claims Tribunal, Bilaspur, District Bilaspur, H.P, in MAC Petition No.10 of 2007, vide impugned award dated 20.7.2011. 2. Brief facts giving rise to the present appeal are that on 8.10.2006 at about 11:00 PM, the offending vehicle Bulkar bearing No.HP-24-5740 came from Swarghat side in a very high speed and straightway struck against the STD booth and house of the petitioners and fell down on two latrines at village Chehari on National Highway-21, as a result of which, residential house, STD booth and two latrines of the petitioners were damaged. The wall of the house consisting of three storey residential building sustained cracks. It is further averred in the petition that at the time of accident, the bulkar vehicle was being driven by its driver, respondent No.2, in a very high speed and in a rash and negligent manner. There was a P.C.O machine, three telephones and the apparatus installed in the S.T.D booth, which stood completely damaged due to which the daily income earned by the petitioners from this booth has been completely stopped. The petitioners are poor persons and cannot afford expenditure to repair and rebuild the damaged portion of their house. 3. The respondents contested the claim petition. In reply on behalf of respondent No.1 preliminary objections has been raised that the petition is not maintainable and the petitioners have no locus standi to file the claim petition. On merits, it has been denied that the amount as claimed is highly excessive and exorbitant. In reply on behalf of respondent No.2, it has been submitted that no damage has been caused to the house, STD booth and other structure of the petitioners nor any accident took place due to rash and negligent driving of respondent No.2. It has been further submitted that the amount of compensation as claimed is highly excessive and exorbitant. Respondent No.2 further submitted that at the relevant time, suddenly a cow came in front of the bulker of the replying respondent and then respondent No.2 applied immediate brakes, due to which the vehicle slightly struck with the STD booth and no damage has been caused to the structure, as alleged. Respondent No.2 further submitted that at the relevant time, suddenly a cow came in front of the bulker of the replying respondent and then respondent No.2 applied immediate brakes, due to which the vehicle slightly struck with the STD booth and no damage has been caused to the structure, as alleged. In reply on behalf of respondent No.3, preliminary objections have been taken that the petition is not maintainable, the petition does not disclose any cause of action against the replying respondent, the replying respondent had not issued any policy of the insurance insuring or contracting to indemnify respondent No.1 for any loss, the vehicle was being driven without relevant documents i.e. Registration Certificate, Route permit, fitness certificate, the liability of the Insurance Company is limited to the extent of Rs. 6000/-. On merits, the replying respondent submitted that no particulars of the policy of insurance have been supplied by the concerned parties. 4. The learned Tribunal below framed the following issues on 27.11.2007: “1. Whether on 8.10.2006 at about 11:00 PM at village Chehri, the property of the petitioner i.e. residential house etc. was damaged due to the rash and negligent driving of bulker/truck No.HP-24-5740 being driven by respondent No.2, as alleged? OPP. 2. If Issue No.1 is proved in affirmative, to what amount of compensation, the petitioner is entitled to and from whom? OPP. 3. Whether respondent No.2 was not possessed of a valid and effective driving licence, at the relevant time? OPR-3. 4. Whether the offending truck/bulker was being plied without valid documents at the relevant time in contravention of provisions of Motor Vehicles Act? OPR-3. 5. Whether the liability of respondent No.3 is limited to the extent of Rs. 6000/-only? OPR-3. 6. Relief.” 5. After deciding Issue Nos.1 and 2 in favour of the petitioners, Issue Nos.3 to 5 against the respondents No.3. Learned tribunal below allowed the claim petition, as per operative portion of the award. 6. Learned counsel appearing on behalf of the petitioners has argued that the learned Tribunal below has not taken into consideration the report given by an independent person and has given the findings which are perverse. On the other hand, learned counsel appearing on behalf of respondent No.1 has argued that it is the insurance company, who is liable to pay the compensation, as the vehicle of respondent No.1 insured with respondent No.3. 7. On the other hand, learned counsel appearing on behalf of respondent No.1 has argued that it is the insurance company, who is liable to pay the compensation, as the vehicle of respondent No.1 insured with respondent No.3. 7. Learned counsel appearing on behalf of respondent No.3 has argued that the third party liability of Insurance Company under the Act, is to the tune of Rs. 6000/- and respondent No.1 has not paid extra premium for making the liability to the extent of rupees seven lacs. He has further argued that the learned Tribunal below has awarded an amount of Rs. 17,200/-, the Insurance Company has not chosen to file an appeal, as the amount was meager. 8. In rebuttal, learned counsel appearing on behalf of the petitioners has argued that the Insurance Company/respondent No.3 is liable to make the payment to the extent of full damages to the tune of Rs. 1,75,000/-. 9. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record of the case carefully. 10. The only question involved in the present case is with respect to the damages. In his statement PW-2, petitioner has deposed that as a result of the accident his S.T.D booth, latrines, bathroom and septic tank were damaged, his house sustained cracks and he had sustained loss. However, no cogent and satisfactory evidence has been led by the petitioners to prove the amount of loss sustained by them. In the valuation report Mark-A, the damages sustained by the petitioner has not been specified. The petitioners have failed to explain as to on what basis, the amount of damages have been assessed in the valuation report. In photographs Ex.PW3/A to Ex.PW3/D, it is not clear as to whether the latrines, bathrooms and septic tank have also been damaged. The damage allegedly sustained to the residential house has not been also shown in the photographs. PW-5 Mangal Nath, an eye witness had only stated that the S.T.D booth of the petitioners has been damaged and thereafter the bulkar fell down on the latrines and septic tank, however, he had not stated that the latrines and septic tank have been completely damaged. It was incumbent upon the petitioners to have led cogent and satisfactory evidence on record with respect to the damages sustained by him. It was incumbent upon the petitioners to have led cogent and satisfactory evidence on record with respect to the damages sustained by him. On the other hand, RW-1 Sita Ram, the surveyor of the Insurance company has categorically admitted in his cross-examination that in the alleged accident one P.C.O, one bathroom at the road level and one bathroom below the road level had sustained damages and no damage was caused to the latrines and septic tank. He has further deposed that he had assessed the damages in the presence of petitioner Gian Chand. In his report, Ex.RW1/A, he has stated that the P.C.O, one bathroom at the road level and one bathroom below the road level sustained damages, but no damage has been caused to the joint bathroom and septic tank. The report of Surveyor is an important document and it cannot be brushed aside unless satisfactory evidence to the contrary is brought on record. The petitioners have failed to lead any satisfactory evidence on record contrary to the report of Surveyor and also regarding the fact that he had sustained damages with respect to latrines and septic tank, the valuation report Mark-A cannot be accepted. Hence, in the facts and circumstances of the case, report Ex.RW1/A, it can be safely held that the petitioner has sustained damages in the sum of Rs. 17,200/- only. The petitioner also claimed damages in respect of the consequential loss of business, as it has been pleaded in the petition that the daily income of the petitioner from the S.T.D booth has completely stopped. 11. The only evidence which has come on record is the report of surveyor, who was an independent person and an expert, whose report is on record, who was assessed the damages to the tune of Rs. 17,200/-. So, I find no illegality or irregularity with the impugned award passed by the learned Tribunal below, hence the same needs no interference. As far as the liability of respondent No.3/Insurance Company is concerned, no findings are required to be given on this point, as no appeal/cross objections are maintained by the Insurance Company. No other points argued so, needs no consideration. 12. The net result of the above discussion is that the appeal is devoid of any merit deserves dismissal and the same is accordingly dismissed. No other points argued so, needs no consideration. 12. The net result of the above discussion is that the appeal is devoid of any merit deserves dismissal and the same is accordingly dismissed. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending applications, if any, shall also stands disposed of.