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Himachal Pradesh High Court · body

2019 DIGILAW 1833 (HP)

Usha Dhraik v. Himachal Baspa Power Co Ltd

2019-12-03

TARLOK SINGH CHAUHAN

body2019
JUDGMENT Tarlok Singh Chauhan, J. - Since both these appeals emanate out of common award, therefore, they are taken up together for hearing and are being disposed of by way of a common judgment. 2. Fao No. 49 of 2013 has been filed by the claimants seeking enhancement of award amount whereas FAO No. 4135/2013 has been filed by the Insurance Company questioning the fastening of the liability to pay the award amount upon it. Parties herein after referred to as the ''claimants'', ''driver'' and ''Insurance Company''. 3. The claimants claimed compensation to the tune of Rs.20,00,000/- on account of untimely death of Swaran Singh Dhraik in a vehicular accident involving vehicle No. HP-26A-0686 Tata LPK (for short ''Lorry''). It was averred that on 01.01.2008 the deceased was coming in his Wagon-R car (hereinafter referred to as Car) bearing registration No. HP-06-3975 from Solan to Rampur and at about 7:30 p.m., when his Car reached Talai near Nogli, the Lorry came from behind and knocked it down. Resultantly, the Car rolled down to a distance of 250/300 feet nearby Satluj river resulting in multiple injuries sustained by the deceased and eventually leading to his death. FIR No. 5 of 2008, dated 01.01.2008 came to be registered at Police Station Rampur. At the relevant time, the deceased was aged about 43 years and having monthly income of Rs.13489/- as he employed as a Sub Station Attendant (SSA) in H.P. Electricity Board. 4. The owner of the Lorry M/s Jai Parkash Associates contested the petition by raising preliminary objections qua maintainability and that the claimants had not approached the Tribunal with clean hands because they had concealed the material facts. It was averred that the deceased had died in accident due to his own rash and negligent driving. On merits, it was denied that he was a Government employee and drawing a monthly salary of Rs.13,489/- as alleged. It was further denied that the Lorry was being driven in a rash and negligent manner and it knocked down the Car. Lastly, it was averred that the Lorry was insured with the Reliance General Insurance Co. Ltd. 5. The Driver of the vehicle, who was arrayed as respondent No. 2, contested the claim petition by filing a separate reply wherein he raised preliminary objections qua maintainability. Lastly, it was averred that the Lorry was insured with the Reliance General Insurance Co. Ltd. 5. The Driver of the vehicle, who was arrayed as respondent No. 2, contested the claim petition by filing a separate reply wherein he raised preliminary objections qua maintainability. On merits, it was denied that he was driving the Lorry in a rash and negligent manner under the influence of liquor and had knocked down the Car being driven by the deceased while overtaking it in a rash and negligent manner. 6. The Insurance Company contested the petition by raising preliminary objections qua maintainability, validity and effectiveness of the driving licence and the vehicle being driven without valid permit and in violation of the terms and condition of the Insurance Policy. It was further averred that the petition had been filed in collusion with owner and driver of the vehicle. On merits, it was asserted that the amount as claimed was highly excessive and exaggerated. 7. On 23.07.2010, the learned Tribunal framed the following issues:- 1. Whether Sh. Swaran Singh Dhraik deceased died on 01.01.2008 at about 7:30 p.m. at Talai near Nogli due to rash and negligent driving of driver of vehicle No. HP-26A0686, as alleged? OPP 2. If issue No. 1 is proved to what amount of compensation and from whom the petitioners are entitled to?OPP 3. Whether the petitioners have no cause of action to file the present petition against the respondents?OPR-1. 4. Whether the petition is not maintainable against the respondents?OPR-1 to 3. 5. Whether the deceased Swaran Singh Dhraik had died in the accident due to his own rash and negligent driving of Wagon-R (car), as alleged?OPR-1 6. Whether the petition is not maintainable due to misjoinder of the parties, as alleged?OPR-1 7. Whether the driver of vehicle No. HP-26A-0686 was not holding a valid and effective driving licence and the vehicle was being plied without valid permit in violation of terms and conditions of the insurance policy?OPR-3 8. Whether the petition has been filed in collusion with respondents No. 1 and 2, if so its effect?OPR-3 9. Relief. 8. After recording evidence and evaluating the same, the learned Tribunal allowed the claim petition by awarding a sum of Rs.15,40,824/- alongwith interest at the rate of 8.5% per annum from the date of petition till realisation. 9. Whether the petition has been filed in collusion with respondents No. 1 and 2, if so its effect?OPR-3 9. Relief. 8. After recording evidence and evaluating the same, the learned Tribunal allowed the claim petition by awarding a sum of Rs.15,40,824/- alongwith interest at the rate of 8.5% per annum from the date of petition till realisation. 9. Aggrieved by the inadequacy of the compensation, the claimants have filed FAO No. 49 of 2013, whereas aggrieved by the fastening of the liability of compensation, the Insurance Company has filed FAO No. 4135 of 2013. I have heard learned counsel for the parties and have minutely gone through the record of the case. 10. At the outset, it needs to be observed that the question of enhancement of award amount only arises in case the award is sustained. 11. As per the pleaded case of the claimants, the accident occurred due to rash and negligent driving of the driver of the Lorry, who was driving the same in a rash and negligent manner under the influence of the liquor and knocked down the Car at a place Talai near Nogli in the process of overtaking, as a result whereof the said Car plunged into a Satluj river at a distance of 250-300 feet from the National Highway. The deceased had suffered grievous injuries and instantly succumbed to the same. 12. In reply filed by the owner of the vehicle M/s Jai Parkash Associates, it was specifically stated that the deceased had died in the accident due to rash and negligent driving of the driver of the Car. It was denied that the driver of the Lorry was driving the vehicle in a rash and negligent manner. 13. Adverting to the reply filed on behalf of the driver of the Lorry, it would be noticed that he filed the same and similar reply to the one filed by the owner of the vehicle. 14. As regards the Insurance Company, as observed above, it has vehemently opposed the claim petition on various grounds. 15. In order to prove the accident, the claimants have examined Smt. Usha Dhraik (PW-1). Since her statement regarding the accident is based on hearsay, the same has to be ignored from consideration. 16. 14. As regards the Insurance Company, as observed above, it has vehemently opposed the claim petition on various grounds. 15. In order to prove the accident, the claimants have examined Smt. Usha Dhraik (PW-1). Since her statement regarding the accident is based on hearsay, the same has to be ignored from consideration. 16. Pw-2 Smt. Neelam is the alleged eye witness who in her affidavit Ext.PW-2/A stated that on 01.01.2008, she was coming from Shimla to Rampur in the vehicle of her relative. At about 7:30 p.m., she noticed that a Car was ahead of them and there is a big lorry behind it which was being driven in a rash and negligent manner, hit the Car, as a result of which, it plunged into the Satluj river. The driver of the Lorry took the Lorry away from the spot. Then many people gathered at the spot and she also stayed at the spot for quite some time. The people present at the spot followed the lorry and caught hold of its driver and beat him, who was under the influence of liquor. She further stated that the accident took place because of the high speed and negligence of the driver of the Lorry at the time of overtaking the Car being driven by the deceased. 17. Pw-4 Sanjiv Chauhan, in his affidavit Ext. PW-4/A stated that on 01.01.2008, he was driving his Alto Car (HP-06- 4072) from Bhadras towards Rampur alongwith Vicky Sharma and when they reached a place near Talai at about 7:30 p.m., they noticed that many people gathered there and accordingly he stopped his vehicle and came to know that an accident had taken place. The accident involved a small car and a big vehicle. The accident took place on account of the negligence and high speed of the driver of the big vehicle in the process of overtaking the small car and hit the same, as a result whereof the vehicle plunged into the Satluj river. He further claimed that the driver of the Lorry was drunk. PW-4 is not an eye witness and rather reached the spot after the accident had already taken place. 18. As against this evidence the driver of the vehicle filed his affidavit Ext. He further claimed that the driver of the Lorry was drunk. PW-4 is not an eye witness and rather reached the spot after the accident had already taken place. 18. As against this evidence the driver of the vehicle filed his affidavit Ext. RW-1/2A and stated that on 31.12.2007, at about 7:00 a.m. he started from Bagha (Solan) in Lorry loaded with shuttering plates, for Chholtu (Kinnaur) and at about 7/7:30 p.m. (31.12.2007), when he reached 2 Kms short to Nogli, the driver of the Car, who was in high speed tried to overtake his Lorry on a curve. In the meantime, a vehicle (L.P. Truck) had also came from front side and for this reason the driver of the Car became perplexed and struck against the rear tyre of the truck coming from the opposite side, as a result whereof, it fell into a gorge. He specifically stated that at that time he had been driving his lorry in a slow speed, which had not hit the Car. In order to inform the police, he stopped his lorry on the side of the road but in the meantime some persons came there and on suspicion started beating him and it was with great difficulty, he managed to run away from the spot. At that time he was not driving the Lorry and consumed liquor as he was feeling pain due to the beatings given to him at Nogli. In cross-examination, this witness denied that it was on 01.01.2008 that accident had taken place involving the lorry driven by him. 19. Rw-3 H. C. Bakshi stated, from the summoned record, pertaining to FIR No. 5/2008 (Ext.PW-1/B, that after the investigation, an untraced report had been prepared and that the same was accepted by SDJM, Rampur vide order dated 11.09.2009. As per the supplementary statement of Sanjiv Chauhan, it had come on record that he had not seen the accident taking place. As per the police record, no scratch/dent had been found on the body of the Lorry. In cross-examination, he admitted that as per the FIR, many people had gathered at the spot. However, he stated that he had not prepared the untraced report. However, he specifically stated that the complainant had not raised any objection against the untraced report. 20. Rw-2 Sh. Pawan Kumar in his affidavit Ext. In cross-examination, he admitted that as per the FIR, many people had gathered at the spot. However, he stated that he had not prepared the untraced report. However, he specifically stated that the complainant had not raised any objection against the untraced report. 20. Rw-2 Sh. Pawan Kumar in his affidavit Ext. RW-2/A stated that in the investigation, no scratch/dent had been found on the Lorry and for this reason, it was handed over to him on Sapurdari. As per his information, the Lorry had not hit the Car. In cross-examination, he stated that he was not present on the spot at the time when the accident took place. This in entirety is the evidence led by the parties. 21. A perusal of the impugned award would reveal that it is on the sole testimony of PW2 that the learned Tribunal below reached a conclusion that it was on account of the rash and negligent driving of the driver of the Lorry that the accident in question had taken place, which finding according to the learned counsel for the Insurance Company and owner of the vehicle are totally perverse and based on a total misreading of the statement of this witness. 22. Therefore, before proceeding further, it would be necessary for this Court to scrutinise in detail the statement of PW2 Smt. Neelam. The relevant portion of examination-in-chief of PW2 Smt. Neelam has already been reproduced in para-16 of the judgment, therefore, there is no need to reiterate the same. However, adverting to the cross-examination, which has been conducted in detail by the Insurance Company as also the owner of the vehicle, it would be noticed that this witness in her crossexamination stated that she knew Usha Dhraik i.e. claimant for the last 7-8 years and she alongwith her family used to live in her neighbourhood at Jagat Khana. She used to visit the home of the claimant frequently and had a cordial relationship. She admitted that she had not received summons from the Court and she of her own had come to depose in this case. She claimed to be travelling in the Car and stated that she was sitting on the driver seat. She claimed that at the spot of occurrence, a Wagon R Car was moving head of a Lorry behind which she was also travelling in the vehicle. She claimed to be travelling in the Car and stated that she was sitting on the driver seat. She claimed that at the spot of occurrence, a Wagon R Car was moving head of a Lorry behind which she was also travelling in the vehicle. She categorically stated that all three of these vehicles were moving at their left sides. She had no idea about the length of the Lorry but stated that the same was long. She did not remember as to whether anything was loaded in the Lorry or not. She volunteered to state that it was dark and nothing was visible to her. The person driving the Lorry was trying to overtake the vehicle from his side and she saw the Lorry knock down the Wagon R Car from its left side. She claimed that the road was very wide on the spot but admitted that she had not given statement to the police regarding the incident. It is on the next date that she came to know that her neighbour had passed away in the accident. She claimed to have stopped at the spot for 4-5 minutes and thereafter many people gathered around there. She admitted that she was narrating the incident for the very first time. She denied the suggestion that Lorry was moving at a normal speed on its own side. She denied the suggestion that the driver of the Lorry was not under the influence of the liquor. She further denied the suggestion that while overtaking the Lorry in a rash and negligent manner, the deceased got perplexed when a vehicle came from front side and for this reason the accident occurred. She denied the suggestion that Lorry had not knocked down the Wagon R Car. She feigned ignorance regarding the police having visited the spot and having carried out the investigation. She feigned ignorance regarding the suggestion that on the basis of investigation carried out by the police, it had been found that the Lorry had not collided with the Wagon R Car, therefore, the police had not registered any case against the driver and left the vehicle at the spot. She denied the suggestion that accident took place due to the negligence of the deceased. 23. She denied the suggestion that accident took place due to the negligence of the deceased. 23. On being cross-examined by the Insurance Company, PW-2 stated that there was a distance of 4-5 meter between the Lorry and her vehicle and Lorry was moving ahead of the Wagon R Car. She denied the suggestion that at the site of accident, 100 metres towards Nirsu, the road is indented. She further denied that there is a curve between the spot and the indented road. She further denied that the spot is not visible from the area where there is a curve and the indented road. She denied the suggestion that she had not seen the spot and could not tell about the speed of the Lorry as well as that of vehicle. Voluntarily stated that the Lorry was being driven rashly. She denied the suggestion that she came to know about the incident after about an hour and denied having deposed falsely. 24. Now, in case the statement of PW-2 is minutely scrutinised, it would be noticed that it is a specific case that she knew the deceased and her family, who was residing in her neighbourhood at jagat Khana that too for the last 7-8 years and had been frequently visiting her home. If that be so, then it is very difficult and rather impossible to imagine that she does not know the car number of the deceased especially when it is not disputed that Jagat Khana in itself is a very small colony. This witness would at least know the make of the vehicle i.e. Wagon R and have a fair amount of idea that the vehicle belongs to some one in the locality. If the vehicle had, in fact, been knocked down, then the first reaction of the witness would have been to inform the police especially when it has come in her statement that she remained there at the spot for four to five minutes. 25. What casts serious doubt on the testimony of this witness is that even after she had came to know that it was her neighbour Swaran Singh Dhraik, who was the occupant of the Car and had died in the accident, she did not immediately contacted the police and assist the investigating agency after all her neighbour had died. 25. What casts serious doubt on the testimony of this witness is that even after she had came to know that it was her neighbour Swaran Singh Dhraik, who was the occupant of the Car and had died in the accident, she did not immediately contacted the police and assist the investigating agency after all her neighbour had died. This assumes importance because admittedly the investigating agency after carrying out thorough investigation filed a cancellation report and the same was accepted by the concerned Magistrate. Not only the testimony, but also the conduct of this witness does not inspire confidence and casts serious doubt regarding the veracity and correctness of her statement, as she appears to be a procured witness. 26. Lastly and more importantly, what casts serious doubt on the testimony of the PW2 is the statement made in the opening line of her cross-examination conducted by the Insurance Company wherein she specifically stated that Lorry was moving ahead of Wagon R Car. Once that be so, obviously, then there is no question of the Lorry overtaking the Wagon R Car as it was already ahead of it. 27. Unfortunately, the learned Tribunal has completely mis-read the statement of PW2. 28. It is settled that rash and negligent driving is sine qua non for maintaining the claim petition seeking compensation in terms of the provisions of Section 166 of the Act. 29. This view of mine is fortified by the judgment of the Hon''ble Supreme Court in Oriental Insurance Co. Ltd. vs. Premlata Shukla and others.,2017 13 SCC 446 , wherein it was observed as under:- "10. The insurer, however, would be liable to reimburse the insured to the extent of the damages payable by the owner to the claimants subject of course to the limit of its liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle is therefore, sine qua non for maintaining an application under Section 166 of the Act." 30. This view is further fortified by the judgment of the Hon''ble Supreme Court in Surender Kumar Arora and Anr. vs. Dr. Manoj Bisla and others, (2012) 4 SCC 552 , wherein it was observed as under:- "9. Admittedly, the petition filed by the claimant was under Section 166 of the Act and not under Section 163-A of the Act. This view is further fortified by the judgment of the Hon''ble Supreme Court in Surender Kumar Arora and Anr. vs. Dr. Manoj Bisla and others, (2012) 4 SCC 552 , wherein it was observed as under:- "9. Admittedly, the petition filed by the claimant was under Section 166 of the Act and not under Section 163-A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the parents of the deceased to have established that respondent No. 1 drew the vehicle in a rash and negligent manner which resulted in the fatal accident. Maybe, in order to help respondent No.1, the claimants had not taken up that plea before the Tribunal. Therefore, High Court was justified in sustaining the judgment and order passed by the Tribunal. We make it clear that if for any reason, the claimants had filed the petition under Section 163-A of the Act, then the dicta of this Court in the case of Kaushnuma Begum (Smt.) and Ors., (2001) AIR SC 485 would have come to the assistance of the claimants. 10. In our view the issue that we have raised for our consideration is squarely covered by the decision of this Court in the case of Oriental Insurance Co. Ltd., (2007) AIR SC 1609 . "....Therefore, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon. 31. Here it also needs to be mentioned that this Court is fully conscious of the fact that the plea of negligence set up by the claimants is required to be decided by the learned Tribunal on the touchstone of preponderence of probability and certainly not on the basis of proof beyond reasonable doubt but even the preponderence of probability in this case negates the plea of negligence set up by the claimants. 32. The learned Tribunal stricto sensu is not bound by the pleadings of the parties, its function being to determine the fair compensation in the event of an accident that is alleged to have taken place due to negligence of the driver of a motor vehicle. 33. Noticeably, there is no other evidence led by the claimants. 32. The learned Tribunal stricto sensu is not bound by the pleadings of the parties, its function being to determine the fair compensation in the event of an accident that is alleged to have taken place due to negligence of the driver of a motor vehicle. 33. Noticeably, there is no other evidence led by the claimants. At this stage, it also needs to be mentioned that the entire case set up by the claimants does not inspire confidence as it is difficult to appreciate as to why there would be people in a secluded rural area on the road at 7:30 p.m., just nearly two hours after the sun set, that too, in a freezing temperature with no rhyme or reason. 34. What further cannot be brushed aside easily is the fact that during the course of investigation, it has specifically come on record that in the investigation carried out by the police not a single scratch was found anywhere on any part or body of the Lorry which totally belies the version put-forth by the claimants. Had Wagon R Car being hit by the Lorry then there was bound to be some scratch(s) if not dent(s) in the body of the lorry. All these facts have been ignored by the learned Tribunal, as such the findings so recorded by it are perverse and are liable to be set aside. 35. Now, that this Court has come to a firm conclusion that the vehicle of the owner i.e. M/s Himachal Baspa Power Co. Ltd. was not at all involved in the accident nor there is any proof and further there is no proof of the vehicle being driven in a rash and negligent manner, therefore, neither the owner much less the Insurance Company, who is only under the obligation to indemnify the owner can be asked to pay compensation for the death of Swaran Singh Dhraik. 36. Accordingly, the appeal filed by the Insurance Company being FAO No. 4135 of 2013 is allowed and the appeal filed by the claimants for enhancement of the award amount being FAO No. 49 of 2013 is dismissed. Consequently, the claim petition filed by the claimants is ordered to be dismissed, leaving the parties to bear their own costs.