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2016 DIGILAW 790 (HP)

Dharam Pal v. Yoginder Pal

2016-05-13

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is the award, dated 12th October, 2009, passed by the Motor Accident Claims Tribunal (I), Mandi, H.P., (for short, the Tribunal), in Claim Petition No.91 of 2008, titled Yoginder Pal and another vs. Dharam Pal and others, whereby the claim petition was allowed and compensation to the tune of Rs.3,27,000/-, with interest at the rate of 7.5% from the date of filing of the petition till realization, came to be awarded in favour of the claimants and respondents No.1 and 2 i.e. owner and the driver came to be saddled with the liability, (for short, the impugned award). 2. Neither the claimants nor the insurer has questioned the impugned award, therefore, the same has attained finality so far as it relates to them. 3. Feeling aggrieved, the appellants i.e. the owner and the driver have questioned the impugned award on the ground that the Tribunal has wrongly fastened them with the liability. 4. Thus, the only question needs to be determined in this appeal is – Whether the Tribunal has rightly saddled the appellants with the liability. 5. In order to answer the said question, a brief reference may be made to the facts of the case. 6. Claimants invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehicles Act, 1988, (for short, the Act) and sought compensation to the tune of Rs.15.00 lacs, as per the break-ups given in the claim petition. It was averred in the claim petition that on 7th June, 2008, a truck bearing Chassis No. KNA 093144 & Engine No. KNH 535817, of Ashoka Leyland make, was hired for carrying articles and devotees to Naina Devi Temple from Rewalsar. The driver of the offending Truck, namely, Chuni Lal (appellant No.2), on return journey, parked the offending truck at village Sadhyani, at a sloppy place, due to which the truck rolled down the road, resultantly Kashaulya Devi, who was in the said truck, sustained multiple injuries and lateron succumbed to the same. An FIR bearing No.188/08 was registered at Police Station, Balh under Sections 279, 336, 337, 304 of the Indian Penal Code. Thus, the claimants, being the son and the husband of the deceased, filed the claim petition, as detailed hereinabove. 7. The respondents resisted the claim petition by filing replies. 8. An FIR bearing No.188/08 was registered at Police Station, Balh under Sections 279, 336, 337, 304 of the Indian Penal Code. Thus, the claimants, being the son and the husband of the deceased, filed the claim petition, as detailed hereinabove. 7. The respondents resisted the claim petition by filing replies. 8. On the pleadings of the parties, the following issues came to be settled: “1. Whether on 7.6.2008 at 3 p.m. at Sadhyani, truck applied for, rolled down the road due to negligence of the driver and as such, caused death of Kaushlya Devi? OPP 2. If issue No.1 is proved, to what amount the petitioner is entitled to and from whom? OPP 3. Whether deceased Kaushlya Devi was traveling in the truck Engine No.KNH535817 and Chasis No.KNA093144 was not holding a valid and effective driving licence to drive the truck at the time of accident? 4. Relief.” 9. In order to prove the case, the claimants examined PW-1 Dr. K.R. Sharma, PW-2 HC Narpat Ram, PW-3 Pradeep Kumar, PW-4 Yoginder Pal (claimant No.1) and PW-5 Keshav Ram, while respondents examined RW-1 Dhan Dev, RW-2 Sunder Lal and RW-3 Chuni Lal (driver of the offending truck). 10. The Tribunal, after examining the pleadings of the parties and the evidence, held that the accident had occurred due to the rash and negligent driving of the driver of the offending truck. It was also held that the driver of the offending truck was having a valid and effective driving licence to drive the vehicle in question. However, the Tribunal held that the deceased was traveling in the offending truck as gratuitous passenger, therefore, the Tribunal saddled the owner and the driver (present appellants) with the liability and the insurer was exonerated. 11. I have heard the learned counsel for the parties and have gone through the record. 12. It was argued by the learned counsel for the appellants that the Tribunal has fallen in error in holding that the deceased was a gratuitous passenger. The argument is devoid of any force for the following reasons. The claimants in the claim petition specifically pleaded that on the fateful day, the deceased Kaushalya Devi had gone to Naina Devi Temple as devotee in the offending truck and at the time of accident, was returning in the said truck. The argument is devoid of any force for the following reasons. The claimants in the claim petition specifically pleaded that on the fateful day, the deceased Kaushalya Devi had gone to Naina Devi Temple as devotee in the offending truck and at the time of accident, was returning in the said truck. It is not the case of the claimants that the deceased had hired the offending truck and, at the time of accident, was accompanying the articles, which were to be delivered at Naina Devi Temple. The positive case of the claimants was that the truck was hired for carrying some articles and devotees to the Naina Devi Temple and the deceased was one of the devotees. 13. PW-4 Yoginder Pal, claimant No.1, while appearing in the witness box as PW-4, has clearly stated that the offending truck, on the fateful day, was hired by one Inder Singh and not by any other person. Thus, the Tribunal has rightly made discussion in paragraphs 22 and 23 of the impugned award, has rightly held that the deceased was traveling in the offending truck as gratuitous passenger and the owner has committed willful breach of the terms and conditions of the insurance policy, needs no interference. 14. It was also argued by the learned counsel for the appellants that the compensation awarded by the Tribunal is on the higher side. 15. It has been pleaded by the claimants that the deceased was a housewife and her income was claimed to be Rs.6,000/- per month. The Tribunal, after exercising guess work, has rightly held that the claimants, who are son and husband of the deceased, have lost source of dependency to the tune of Rs.2,000/- per month. 16. The Tribunal, after referring to various documents, held that the deceased was 47 years of age at the time of accident and applied the multiplier of 13. However, keeping in view the mandate of the Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120, and second schedule attached to the Act, multiplier of 11 was appropriate and is applied accordingly. 17. 17. The amount awarded by the Tribunal under the head ‘conventional charges’ to the tune of Rs.15,000/- is upheld. 18. In view of the above, the claimants are held entitled to compensation to the tune of Rs.2,79,000/-, as under: i) Loss of source of dependency : Rs.2,64,000/-. ii) Conventional charges : Rs.15,000/- Total: Rs.2,79,000/-. 19. The above amount shall carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization. The amount be deposited by the appellants within a period of six weeks from today, if not already deposited, in the Registry of this Court, and on deposit, the Registry is directed to release the same in favour of the claimants forthwith, as per the terms contained in the impugned award. 20. The impugned award is modified as indicated above and the appeal stands disposed of accordingly.