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Himachal Pradesh High Court · body

2025 DIGILAW 52 (HP)

Gulab Thakur v. Reeta Kumari

2025-01-06

SUSHIL KUKREJA

body2025
JUDGMENT : Sushil Kukreja, J. 1. The present appeal has been filed by appellant (respondent No. 2 before the learned Tribunal below) against the impugned award dated 30.07.2019, passed by learned Motor Accident Claims Tribunal Kinnaur at Rampur Bushahr, District Shimla, H.P., in MACT Case No. 0000019/2016, whereby, the petition filed by the petitioners (respondents No. 1 to 6 herein) was allowed and respondent No. 2 (appellant herein), being employer of the deceased, was held liable to pay compensation to the tune of Rs. 6,26,000/-, alongwith interest @ 6% per annum from the date of the petition, till the deposit of the amount, to the petitioners. 2. The brief facts of the case are that the petitioners filed a petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “MV Act”) before the learned Tribunal below, seeking compensation on account of death of Joginder Pal, who died in an accident while travelling in a vehicle, bearing registration No. HP-06A-3099 on 10.10.2015 and bringing stones to Kachin Ghati, where respondent No. 2 had taken contract of constructing the retaining wall. It has been averred in the petition that the driver of the vehicle was driving it in a rash and negligent manner and could not control the same, as a result of which, it met with an accident and rolled down about 30 meters out of the road towards nallah and deceased died on the spot. Consequently, FIR No. 90/2015, dated 10.10.2015 was registered at Police Station, Kumarsain. As per the petitioners, the deceased was 40 years of age at the time of his death and was employed by respondent No. 2, as a driver, on a monthly salary of Rs. 10,000/- besides this, he was earning Rs. 2,00,000/- per annum from agriculture. It has further been averred in the petition that they incurred more than Rs. 50,000/- on carrying the dead body from the place of accident to CHC, Kumarsain and thereafter to their native place for funeral. Hence, the petitioners filed the petition seeking compensation of Rs. 20,00,000/-. 3. In the reply filed by respondent No. 1-owner of the vehicle, preliminary objection qua maintainability has been taken. It has been pleaded that at the time of accident, respondent No. 3 was not driving the vehicle in question, but the vehicle in question was being driven by one Harish @ Raj Kumar Nepali. 20,00,000/-. 3. In the reply filed by respondent No. 1-owner of the vehicle, preliminary objection qua maintainability has been taken. It has been pleaded that at the time of accident, respondent No. 3 was not driving the vehicle in question, but the vehicle in question was being driven by one Harish @ Raj Kumar Nepali. It has further been pleaded that accident had not taken place due to rash and negligent driving of the driver of the vehicle and in fact, the road suddenly gave way, as a result of which, the vehicle rolled down 30 meters from the road. It has also been pleaded that the vehicle in question was insured with respondent No. 4. On merits, it has been admitted that the deceased was travelling in the vehicle from Karsog and was carrying stones. It has been averred that during investigation, the Investigating Agency has found that there was no rashness and negligence on the part of the driver of the vehicle and as such, a cancellation report in the matter was prepared and submitted to the Court of ld. ACJM, Rampur Bushahr. 4. In the reply filed by respondent No. 3-driver, preliminary objections qua maintainability and non-joinder of necessary parties have been taken. On merits, it has been admitted that on the date of accident, the deceased was travelling in the vehicle with his stones, but it has been denied that he was driving the vehicle in a rash and negligent manner. It has been averred that during investigation, Investigating Agency has found no rashness and negligence on his part. 5. In the reply filed by respondent No. 4-Insurance Company, preliminary objections qua maintainability, collusion and that the vehicle was being driven in violation of the terms and conditions of the Insurance Policy, that the driver of the vehicle was not possessing any valid and effective licence at the time of the accident and that the vehicle was not having any valid registration, fitness and permit, have been taken. On merits, it has been specifically denied that the deceased was working as driver by profession and his monthly income was Rs. 10,000/- and he was earning Rs. 2,00,000/- per annum from agriculture. It has been averred that the deceased was travelling as a gratuitous passenger in the goods vehicle and the vehicle was not hired at the time of alleged accident. 6. 10,000/- and he was earning Rs. 2,00,000/- per annum from agriculture. It has been averred that the deceased was travelling as a gratuitous passenger in the goods vehicle and the vehicle was not hired at the time of alleged accident. 6. On the pleadings of the parties, on 22.11.2018, the learned Tribunal below framed the following issues:- “(1) Whether Joginder Pal, the predecessor-in-interest of the petitioners had died on account of rashness and negligence on the part of respondent No. 3 in driving vehicle bearing registration No. HP-06A-3099, as alleged ? OPP (2) If issue No. 1 is proved in affirmative, whether the petitioners being dependents of the above name deceased are entitled to claim compensation in the sum of Rs. 20,00,000/- alongwith interest jointly and severally from respondent No. 1 being owner, respondent No. 2 being employer of the deceased, and respondent No. 4 being insurer of the ill-fated vehicle? OPP (3) Whether the accident in question had occurred due to caving in of the road in question, as alleged, if so, its effect? OPR-1 & 2. (4) Whether the deceased was gratuitous unauthorized passenger in the ill-fated vehicle, as alleged, if so, its effect? OPR-4. (5) Whether at the relevant time, the ill-fated vehicle had been plied without possessing valid contract carriage permit, as alleged, if so, its effect? OPR-4 (6) Relief.” 7. After hearing the learned counsel for the contesting parties, the petition was allowed and the petitioners were held entitled for compensation to the tune of Rs. 6,26,000/- alongwith interest @ 6% per annum from the date of the petition, till the deposit of the amount and the present appellant (respondent No. 2 before the learned Tribunal below) was directed to deposit the amount of compensation. 8. I have heard the learned counsel for the parties and have also gone through the records. 9. Learned counsel for the appellant contended that the learned Tribunal below had committed grave error while fastening the liability upon the appellant, as he was neither owner nor driver of the vehicle in question and the claim petition was filed by the claimants under the Motor Vehicles Act 1966 and not under the Employees Compensation Act. 10. 9. Learned counsel for the appellant contended that the learned Tribunal below had committed grave error while fastening the liability upon the appellant, as he was neither owner nor driver of the vehicle in question and the claim petition was filed by the claimants under the Motor Vehicles Act 1966 and not under the Employees Compensation Act. 10. It is not in dispute that deceased Joginder Pal was travelling in the offending vehicle bearing registration No. HP-06A-3099 on 10.10.2015, which was owned by respondent No. 1, Bhupesh Dhiman and insured with respondent No 4, New Tata India Insurance Company Ltd. It is also not in dispute that the aforesaid vehicle met with an accident on the aforesaid date, as a result of which, Joginder Pal had died. While deciding issue No. 1, learned Tribunal below had specifically arrived at the conclusion that the accident took place due to rash and negligent driving of respondent No. 3, Harish, who was driving the offending vehicle at the time of the accident. The relevant portion of the judgment reads as under:- “14. From the evidence led by the parties, FIR and other documents post-mortem report which leads to the presumption that the tipper met with an accident when it was being driven by respondent No. 3 in a rash and negligent manner and the possibility of rash and negligent driving on behalf of respondent No. 3 cannot be ruled out as principle of res ipsa loquitur applies. Though the respondent has placed on record cancellation report prepared by the police but in the statement he has admitted that so many buses had crossed from that spot and if the road was not proper and the driving of vehicle from such a place by the driver leads to the inference that he was rash and negligent in driving his vehicle. Hence, issue No. 1 is decided in favour of the petitioners and issue No. 3 against respondents No. 1 and 2.” 11. It has categorically been held by the learned Tribunal below that the present is a case of motor accident and death took place due to motor accident. The relevant portion of the judgment reads as under:- “21. Hence, issue No. 1 is decided in favour of the petitioners and issue No. 3 against respondents No. 1 and 2.” 11. It has categorically been held by the learned Tribunal below that the present is a case of motor accident and death took place due to motor accident. The relevant portion of the judgment reads as under:- “21. Since the present case is a case of motor accident and death had taken place due to motor accident and he was working with Gulab Thakur, respondent No. 2, as his employee and the petitioners are at liberty to claim compensation either under the Employees Workmen’s Compensation Act or Motor Vehicles Act. Hence, respondent No. 2 is liable to pay the compensation.........” 12. The respondent No. 2 did not chose to appear before the learned Tribunal below and was proceeded against ex parte and the liability was fastened upon him, as according to learned Tribunal below, the deceased was working as his employee, who had hired the vehicle of respondent No. 1 being driven by respondent No. 3 and the petitioners were at liberty to claim compensation either under the Employees Workmen’s Compensation Act or Motor Vehicles Act. 13. No doubt Section 167 of Motor Vehicles Act gives option to claimants to elect the forum where death of any person might give rise to claim for compensation under the Motor Vehicles Act and also under Workmen Compensation Act 1923. However, in the present case, the petitioners who are the legal representatives of the deceased had elected to file the petition under Section 166 of the Motor Vehicles Act and not under the Employees Compensation Act 1923. As observed earlier, learned Tribunal below had given the specific findings that the accident had occurred due to rash and negligent driving of respondent No. 3, who was driving the offending vehicle No. HP-06A-3099, which was owned by respondent No. 1 and insured with respondent No. 4 but despite that the liability was erroneously fastened upon the appellant alleged to be the employer of the deceased. In the facts and circumstances of the case, learned Tribunal below had committed grave error in fastening the liability on respondent No. 2, who was neither the owner nor driver of the vehicle in question. In the facts and circumstances of the case, learned Tribunal below had committed grave error in fastening the liability on respondent No. 2, who was neither the owner nor driver of the vehicle in question. Accordingly, the impugned award dated 30.07.2019, passed by learned Motor Accident Claims Tribunal Kinnaur at Rampur Bushahr, District Shimla, H.P., in MACT Case No. 0000019/2016, which is highly perverse and illegal is set aside and the case is remanded back to the learned Tribunal below to decide the same afresh, in accordance with law after giving reasonable opportunity of being heard to all the parties. The parties are directed to appear before the learned Tribunal below on 13.03.2025 14. The appeal, so also pending application(s), if any, stands disposed of. 15. Records be send back forthwith.