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2016 DIGILAW 385 (HP)

Manoj Kumar v. Rajesh Kumar

2016-04-01

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is the award, dated 17th December, 2009, passed by the Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P., (for short, the Tribunal), in Claim Petition No.55-MAC/2 of 2008, titled Manoj Kumar and others vs. Rajesh Kumar and others, whereby compensation only to the tune of Rs.50,000/- under the head ‘no fault liability’ came to be awarded in faovur of the claimants, (for short, the impugned award). 2. The owner/insured, the driver and the insurer have not questioned the impugned award on any count, thus, the same has attained finality so far as it relates to them. 3. Feeling aggrieved and dissatisfied with the impugned award, the claimants have challenged the impugned award by the medium of instant appeal. 4. The claimants had invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehicles Act, 1988, (for short, the Act), for grant of compensation to the tune of Rs.6,71,000/-, as per the break-ups given in the Claim Petition. 5. Respondents resisted the claim petition by filing replies. 6. On the pleadings of the parties, the following issues came to be framed: “1. Whether Smt.Devo Devi died due to rash and negligent driving of bus No.HP-17-5410 being driven by respondent No.1 Rajesh Kumar on 19.4.2008 at about 9.40 AM near village Nariwala, as alleged? OPP 2. In case issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled top and from whom? OPP 3. Whether the drive of the bus did not possess a valid and effective driving licence at the time of accident, as alleged? OPR-3 4. Whether the bus in question was being plied in violation of the terms and conditions of Insurance policy, as alleged? OPR-3 5. Relief.” 7. In order to prove their claim, the claimants examined Head Constable Dhanbir Singh as PW-1, Shri Ran Singh as PW-2 and Smt.Reena Devi as PW-3. On the other hand, the respondents examined RW-2 Attar Singh and RW-3 Babu Ram, while the driver of the offending bus appeared in the witness box as RW-1. 8. In addition, the claimants have proved the documents produced before the Tribunal, the detail of which is given in the impugned award. 9. On the other hand, the respondents examined RW-2 Attar Singh and RW-3 Babu Ram, while the driver of the offending bus appeared in the witness box as RW-1. 8. In addition, the claimants have proved the documents produced before the Tribunal, the detail of which is given in the impugned award. 9. Qua the accident, FIR Ext.PW-1/A, bearing No.162/2008, dated 19.4.2008, was registered at Police Station, Paonta Sahib, a perusal whereof clearly establishes that the same was lodged against the driver of the offending bus. Challan was also presented against the driver of the offending vehicle under Sections 279 and 304-A of the Indian Penal Code before the court of competent jurisdiction. 10. Apart from it, Head Constable PW-1 Dhanbir Singh deposed that the driver of the offending vehicle, at the relevant point of time, had suddenly applied the brakes on the request of the Conductor of the bus, who was asked by the said deceased for stopping the bus. The Tribunal has discussed the said fact in paragraph 11 of the impugned award and held that the claimants were not able to prove the said factum by leading a reliable evidence and, therefore, the Tribunal concluded that the driver was not negligent in driving the vehicle in question. 11. However, while going through the evidence led by the claimants, particularly, the statement of PW-1 Head Constable Dhanbir Singh, one comes to an inescapable conclusion that the accident had taken place because of the rash and negligent driving of the driver. Had the driver not applied the brakes suddenly on the asking of the Conductor and had he taken due care while stopping the bus, the accident would have been averted. 12. It is beaten law of the land that the negligence on the part of the driver of the offending vehicle has to be decided on the hallmark of preponderance of probabilities and not on the basis of proof beyond reasonable doubt, as is required in civil and criminal cases. 13. Having said so, it is held that the driver of the offending vehicle had driven the bus in question rashly and negligent as a result of which the deceased fell down from the bus, sustained injuries and succumbed to the same lateron. 13. Having said so, it is held that the driver of the offending vehicle had driven the bus in question rashly and negligent as a result of which the deceased fell down from the bus, sustained injuries and succumbed to the same lateron. Accordingly, the findings recorded by the Tribunal on issue No.1 are set aside and issue No.1 is decided in favour of the claimants and against the respondents. 14. Before issue No.2 is taken up, I deem it proper to deal with issues No.3 and 4. Onus to prove these issues was on the insurer, has not led any evidence to prove both these issues. The Tribunal, while deciding these issues, has clearly held that the driver was having a valid and effective driving licence at the time of accident and that the bus was being plied as per the route permit, which findings have not been challenged by the insurer by filing an appeal, thus, the same have attained finality. 15. However, I have gone through the driving licence proved on record as RW-1/B, which shows that the driver was having a valid and effective driving licence to drive the offending vehicle. The factum of the offending vehicle being duly insured is not in dispute. The insurer has failed to prove that the owner had committed willful breach of the terms and conditions contained in the insurance policy. Accordingly, the findings returned by the Tribunal on these issues are upheld. 16. Coming to issue No.2, claimants No.1 to 3 are the sons and daughter of deceased Devo Devi while claimant No.4 is her husband. It is pleaded in the claim petition that the deceased, albeit being a house wife, was working in a factory and was earning Rs.3,000/- per month. Even if it is taken that the deceased was a house wife, her income cannot be said to be less than Rs.3,000/- per month. Thus, the monthly income of the deceased is taken to be Rs.3,000/-. After deducting 1/3rd amount from the income of the deceased towards her personal expenses, the monthly loss of source of dependency to the claimants can be said to be Rs.2,000/-. 17. Thus, the monthly income of the deceased is taken to be Rs.3,000/-. After deducting 1/3rd amount from the income of the deceased towards her personal expenses, the monthly loss of source of dependency to the claimants can be said to be Rs.2,000/-. 17. It has been pleaded in the claim petition that the age of the deceased, at the time of her death, was 32 years, while the postmortem report as well as other documents proved on record, do disclose that the age of the deceased, at the time of death, was 38 years. Thus, it is held that the deceased, at the time of death, was 38 years of age and the appropriate multiplier applicable is of 14. 18. In view of the above, it is held that the claimants lost source of dependency to the tune of Rs.2000 x 12 x 14 = Rs.3,36,000/-. 19. This Court cannot be oblivious to the fact that the claimants No.1 to 3 have lost the affection of their mother for their entire life and claimant No.4, being the husband of the deceased, has lost his life companion. Thus, the claimants, in addition to above, are also held entitled to Rs.10,000/- each under the heads ‘loss of love and affection’, ‘loss of estate’, loss of consortium’ and ‘funeral expenses’. 20. Having said so, the claimants are held entitled to Rs.3,76,000/- as compensation under the following heads: i) Loss of source of dependency Rs. 3,36,000/- ii) Loss of love and affection Rs.10,000/- iii) Loss of estate Rs.10,000/- iv) Loss of consortium Rs.10,000/- v) Funeral expenses Rs.10,000/- Total Rs. 3,76,000/- 21. The above amount shall carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till deposit. The insurer is directed to deposit the entire amount, alongwith up-to-date interest, in the Registry of this Court, within a period of six weeks from today and on deposit, the Registry is directed to release the said amount in favour of the claimants, in equal shares, through their bank accounts, after proper identification.