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2016 DIGILAW 78 (HP)

Baldev Singh v. Bhagwati Devi

2016-01-08

MANSOOR AHMAD MIR

body2016
Judgment Mansoor Ahmad Mir, Chief Justice Subject matter of this appeal is the award, dated 22nd September, 2008, passed by the Motor Accident Claims Tribunal, Fast Track Court, Mandi, District Mandi, H.P., (for short, the Tribunal), in Claim Petition No.29/2002 (27/2005), titled Bhagwati Devi and others vs. Attar Singh and others, whereby compensation to the tune of Rs.4.00 lacs, alongwith interest at the rate of 7.5% per annum, came to be awarded in favour of the claimants, and the owner and the driver (original respondents No.1 and 3) came to be saddled with the liability, (for short, the impugned award). 2. The claimants, 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. The legal representatives of the owner Attar Singh have questioned the impugned award by the medium of instant appeal on the grounds taken in the memo of appeal, after seeking leave to file appeal. Brief facts: 4. Mani Ram son of Balku Ram became the victim of a vehicular accident which was caused by driver Brij Lal Retka while driving the offending vehicle-tractor bearing registration No.HP-10-1203, who was traveling in the said vehicle, sustained injuries and succumbed to the same. It was specifically averred in the Claim Petition that the deceased was traveling in the offending vehicle as labourer, with other labourers, and while coming back after unloading the material, the accident had occurred. It was further pleaded in the Claim Petition that the deceased was earning Rs.5,000/- per month. Thus, as per the break-ups given in the claim petition, the claimants claimed compensation to the tune of Rs.6.00 lacs. 5. Claim petition was resisted by the original respondents No.1 and 2 (owner and insurer) by filing replies, while respondent No.3 (driver) adopted the reply filed by the owner. 6. On the pleadings of the parties, the following issues came to be framed: “1. Whether Mani Ram died as a result of rash & negligent driving of the Tractor No.HP-10-1203 being driven by Res.No.3 at Bhadyara on 29-9- 1999? OPP 2. Whether the Respondent No.3 was not possessing a valid and effective driving licence at the time of the accident? OPR-2. 3. Whether the vehicle in question was being driven by the respondent No.3 in-contravention of the terms & conditions of the Insurance Policy, if so its effect? OPR-2. OPP 2. Whether the Respondent No.3 was not possessing a valid and effective driving licence at the time of the accident? OPR-2. 3. Whether the vehicle in question was being driven by the respondent No.3 in-contravention of the terms & conditions of the Insurance Policy, if so its effect? OPR-2. 3-A. Whether the petitioners are entitled for compensation, if so to what amount and from whom? OPP 4. Relief.” 7. Claimants, in order to prove their claim, examined as many as three witnesses i.e. PW-1 Dalip Singh, PW-2 Inder Dev (one of the claimants) and PW-3 Jai Dev. On the other hand, respondents examined Partap Singh, Junior Assistant, in the office of Sub Divisional Magistrate Rohru. 8. The Tribunal, after scanning the evidence, held that the claimants have proved that the driver of the offending vehicle had driven the tractor rashly and negligently, as a result of which the deceased sustained injuries and succumbed to the same. The said findings are not in dispute. Accordingly, the findings returned on issue No.1 by the Tribunal are upheld. 9. The question to be determined in this appeal is – Whether the Tribunal has rightly fastened the owner Attar Singh with the liability and has rightly exonerated the insurer. 10. The said question revolves around issues No.2, 3 and partly issue 3-A. The Tribunal in paragraphs 20, 21 and 24 of the impugned award has held that the deceased was traveling on the offending vehicle as a gratuitous passenger, thus, the owner has committed willful breach and accordingly discharged the insurer from its liability and directed the owner and the driver to satisfy the award. 11. I have gone through the pleadings of the parties before the Tribunal. The claimants in paragraphs 10 and 24 of the claim petition have specifically averred that the deceased was traveling on the tractor as a labourer, alongwith others. It was further pleaded by the claimants that said tractor met with the accident because of the rash and negligent driving of the driver. It was not averred in the claim petition whether the deceased, alongwith others, was traveling on the tractor in connection with agriculture work and whether at the relevant point of time, the tractor was being used for agriculture purposes. 12. It was not averred in the claim petition whether the deceased, alongwith others, was traveling on the tractor in connection with agriculture work and whether at the relevant point of time, the tractor was being used for agriculture purposes. 12. The owner has filed the reply, which was adopted by the driver also, wherein they have specifically pleaded that the accident was the outcome of brake failure. In reply to paragraph 10, it has been pleaded that the deceased had boarded the tractor on his own, without the consent of the driver, when the tractor was in motion. In reply to paragraph 24 of the Claim Petition, it has specifically been pleaded that the accident was due to brake failure. It has also been averred that the driver of the offending tractor was acquitted of the criminal case by the court of competent jurisdiction. 13. Here, It is apt to reproduce paragraph 2 of the preliminary submissions, and Paragraphs 3 & 7 of the reply, on merits, filed by the owner and adopted by the driver: “2. That the death of Mani Ram is not on account of any rash and negligent act but it is due to the break failure of the tractor as is clear from the photo copy of Mechanical report attached herewith. 3. That para No.10 of the claim petition is also denied. The deceased boarded the tractor while moving on the road without the consent of the driver. 7. That the contents of para No.24 of the claim petition are denied for want of knowledge. However, while the tractor was coming from Devidhar to Rohru the deceased Mani Ram boarded the tractor at his own without the consent of the Driver and due to the failure of the break the tractor fell down. The deceased Mani Ram died in the accident and thereafter case against on Brij Lal Retka S/o Sh.Ajit Singh R/o Village Barara, Tehsil Rohru, District Shimla, H.P. was filed under Section 279, 337 and 304-A I.P.C. in the court of Ld.Addl.C.J.M. Rohru who acquitted the above Driver on the ground that the accident took place due to the break failure. Photo stat copy of the order dated 18-7-2000 is attached herewith for the kind perusal of this Hon’ble Tribunal. Photo stat copy of the order dated 18-7-2000 is attached herewith for the kind perusal of this Hon’ble Tribunal. Now it is clear that the Tractor is insured with the Oriental Insurance Company and the accident occurred due to the break failure as per the report of the mechanic. The respondent No.1 not at all liable to make the payment of compensation.” 14. The insurer has also filed the reply to the Claim Petition where it has been specifically averred in paragraphs 5 and 7 of the preliminary submissions that the deceased was a gratuitous passenger and his risk was not covered in terms of the conditions contained in the policy and the tractor was registered for agriculture purpose and not for commercial purpose. 15. The registration certificate of the offending tractor has been proved on record as Ext.R-2. RW-2 Pratap Singh has clearly stated that, as per the registration certification, the tractor was to be used for the purpose of agriculture works and not for commercial use. 16. The insurance policy, though comprehensive in nature, also provides that the tractor was to be used only for the purpose of agriculture works. It was also provided in the insurance policy that the risk of driver/two workmen was covered. 17. From the pleadings, as referred to above, it is not the case of the claimants that the deceased was traveling on the tractor in connection with any agriculture work. 18. The Tribunal, in paragraph No.12 of the impugned award, has discussed the statement of PW-3 Jai Devi, who specifically stated that, at the relevant point of time, the tractor was used for carrying stones. The positive case of the claimants, as discussed hereinabove, is that the deceased was traveling on the tractor as a labourer/trained mechanic. It is not the case of the owner that the deceased was engaged by him as workman/labourer in connection with any agriculture work. 19. No doubt, the driver and the owner have tried to carve out a case that the deceased had boarded the tractor on his own, which they have failed to prove. It was also established that at the relevant point of time, the tractor was not being used for agriculture purpose, but was being plied for commercial purpose. 19. No doubt, the driver and the owner have tried to carve out a case that the deceased had boarded the tractor on his own, which they have failed to prove. It was also established that at the relevant point of time, the tractor was not being used for agriculture purpose, but was being plied for commercial purpose. The Tribunal, after discussing the evidence, oral as well as documentary, rightly held that the deceased was traveling as gratuitous passenger and the owner had committed willful breach. The risk of gratuitous passenger was not covered and the Tribunal has rightly discharged the insurer from its liability. 20. Learned counsel for the appellants argued that the owner Attar Singh had died during the pendency of the Claim Petition i.e. on 9th August, 2006, thus, the award has been passed by the Tribunal against a dead person and is nullity in the eyes of law. Therefore, the learned counsel for the appellants pressed for the remand of the claim petition. 21. The argument, though attractive, is devoid of any force for the following reasons. In a Claim Petition, summary procedure is to be adopted and all provisions of Civil Procedure Code are not applicable, rather only some provisions have been made applicable in terms of Section 169 of the Motor Vehicle Act, 1988 (for short, the Act), read with Rule 232 of the Himachal Pradesh Motor Vehicles Rules, 1999 (for short, the Rules of 1999). It is apt to reproduce Rule 232 of the Rules of 1999, hereunder: “232. The Code of Civil Procedure to apply in certain cases:- The following provisions of the First Schedule to the Code of Civil Procedure, 1908, shall so far as may be, apply to proceedings before the Claims Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX; Order XIII; Rule 3 to 10; Order XVI, Rules 2 to 21; Order XVII; Order XXI and Order XXIII, Rules 1 to 3.” 22. It is beaten law of the land that the claimants claiming compensation in terms of Section 166 of the Motor Vehicles Act is not to be seen as adversial litigation, but is to be determined while keeping in view the aim and object of granting compensation. It is beaten law of the land that the claimants claiming compensation in terms of Section 166 of the Motor Vehicles Act is not to be seen as adversial litigation, but is to be determined while keeping in view the aim and object of granting compensation. 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 . 23. 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.” 24. 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. ........................ 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.” 25. 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 is to be taken to its logical end without succumbing to the niceties of law, hyper-technicalities and procedural wrangles and tangles. 26. The argument of the learned counsel for the appellants is also not tenable for another reason that the owner Attar Singh had filed the reply to the claim petition and contested the same. He had specifically pleaded in the reply that the deceased was not traveling in the said tractor and he was not engaged as workman and that the deceased had boarded the tractor on his own, without the consent of the driver. The legal representatives have to follow the defence projected by Attar Singh. They cannot take any other ground. 27. Another aspect which cannot be lost sight of is that the owner Attar Singh was duly represented by the counsel before the Tribunal till the passing of the impugned award. The legal representatives have to follow the defence projected by Attar Singh. They cannot take any other ground. 27. Another aspect which cannot be lost sight of is that the owner Attar Singh was duly represented by the counsel before the Tribunal till the passing of the impugned award. The learned counsel representing the deceased never informed the Tribunal about the factum of his death, which he was supposed to do. 28. Viewed thus, the contention raised by the learned counsel for the appellants is rejected. 29. In view of the above discussion, there is no merit in the appeal and the same is dismissed. Consequently, the impugned award is upheld.