Himachal Pradesh High Court
Sh.Dhani Ram vs Director Of Health Services And Another on 24 June, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 217 of 2010 Judgment reserved on 17.6.2016. Date of decision: 24th June, 2016.
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Sh.Dhani Ram .....Appellant
Versus
Director of Health Services and another ....Respondents of Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting ?1 Yes.
rt For the appellant: Mr. Devinder K. Sharma, Advocate.
For the respondents: Mr. Kush Sharma, Deputy
Advocate General, for
respondent No.1.
Mr. Lonveesh Kanwar,
Advocate, for respondent No.2.
______________________________________________ Mansoor Ahmad Mir, Chief Justice .
The appellant has thrown challenge to the judgment and award dated 5.4.2010, made by the Motor Accident Claims Tribunal-II, Shimla, hereinafter referred to as "the Tribunal" for short, in M.A.C.T No. 28-S/2 of 2007, titled Sh. Dhani Ram 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.::: Downloaded on - 15/04/2017 20:40:01 :::HCHP -2-
versus Director of Health Services, and another, whereby the claim petition filed by the appellant herein came to be dismissed, hereinafter referred .
to as "the impugned award", for short, on the grounds taken in the memo of appeal.
2. The facts, as emerges from the record of are that the appellant herein is a horticulturist and has developed an apple orchard on his land rt situated at village Huli adjacent to Kotkhai Shimla road, had also planted red chief apple trees 14 years back. It is stated that on 11.3.2006, an accident took place due to which a vehicle, i.e. jeep, bearing registration No. HP-03-A-0628 being driven by respondent No. 2 Mukand Lal, fell into his orchard and on account of this, his five red chief apple plants were totally damaged. The accident is stated to have taken place due to rash and negligent driving of driver of jeep, referred to supra.
FIR under Sections 279 and 337 Indian Penal Code was registered against respondent No. 1 at ::: Downloaded on - 15/04/2017 20:40:01 :::HCHP -3- Police Station Kotkhai. It is further stated that due to this accident, he has suffered loss to the tune of Rs.1 lac, per annum, has claimed compensation to .
the tune of Rs.12 lacs, as per the break-ups given in paras 22 and 23 of the claim petition.
3. The claim petition was resisted and of contested by the respondents by filing separate replies. The appellant herein has also filed rt rejoinder to the replies filed by the respondents.
4. On the pleadings of the parties, following issues came to be framed by the Tribunal.
(i) Whether damage to the petitioner's orchard was caused due to rash and negligent driving of the vehicle by respondent No.2?OPP
(ii) If issue No. 1 is proved in affirmative, what amount of compensation the petitioner is entitled to ?OPP
(iii) Whether the petition is not maintainable in law? OPR1&2.
(iv) Whether the petition is bad for non supply of better particulars? OPR.
(v) Relief.::: Downloaded on - 15/04/2017 20:40:01 :::HCHP -4-
5. Respondent No. 1 has admitted that the accident has occurred and FIR was lodged against the driver which culminated into final report, in .
terms of Section 173 of the Code of Criminal Procedure, for short "the Cr.P.C", under Sections 279, 337 and 304-A of the Indian Penal Code. The of driver-accused faced trial before the Judicial Magistrate, Theog and after trial he was acquitted.
rt It is further averred that the departmental inquiry was also conducted against the driver and Inquiry Officer has come to the conclusion that the accident was outcome of mechanical defect in the vehicle. It is apt to reproduce relevant portion of reply filed by respondent No. 1 to para 23 of the claim petition herein.
"23......... Further, the report of departmental circumstantial inquiry submitted by Sh. D.C. Vaidya, the then District Family Planning Officer, Shimla on 17/5/2006 also concludes that the accident could be the result of some mechanical defect and the driver Sh. Mukand Lal was not rash and negligent to cause the accident, a photocopy of the inquiry report dated 17/5/2006 is also ::: Downloaded on - 15/04/2017 20:40:01 :::HCHP -5- annexed herewith as Ann-R-2 for kind perusal of this Ld. Court please......."
6. Respondent No. 2-driver has also filed .
the reply and admitted the factum of accident and damage caused to the apple trees. It is apt to reproduce para 11 of the reply filed by respondent of No. 2 herein.
"11.That the contents of para 23 of the petition are again denied being wrong and incorrect. It is rt submitted for the kind perusal of this Hon'ble Tribunal that on the faithful day, the departmental vehicle No. HP-03A-0682 (Gypsy) was being driven by the replying respondent who was returning to Shimla from Rohru after attending Family and Planning Camp at Civil Hospital, Rohru, and at about 9.30 P.M met with an accident near Huli, Gumma. It is wrong on the part of the petition to allege that the accident took place due to the rash and negligent driving of the replying respondent. In case, the FIR No.18/06 registered with the police of Police Station, Kotkhai, under Sections 279, 337 and 304-A IPC, in which the replying respondent stands acquitted by the learned JMIC, Theog, Shimla on 26.2.2007, in case No. 102-1 of 2006. It is further submitted that Shri D.C. Vaidya, the then District Planning Officer, Shimla had conducted departmental inquiry on 17.5.2006, as such, he has come to the conclusion that the said accident was occurred ::: Downloaded on - 15/04/2017 20:40:01 :::HCHP -6- due to some unavoidable circumstances, as such, the accident was the result of some mechanical defect and replying respondent was never rash or negligent, as alleged. It is further submitted for the .
kind perusal of this Hon'ble Tribunals that there was neither any complaint nor any FIR regarding the uprooting of the trees as lodged by the petitioner in this petition, hence, the petition filed by the petitioner against the replying respondent is liable to be dismissed."
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7. Respondent No. 2-driver has also rt stepped into the wetness-box as RW1 and deposed that three apple trees were damaged.
8. Thus, the cause of accident and damage to the apple trees is virtually admitted.
9. The Trial Court judgment of acquittal of the accused-driver is also on the record which does disclose that the accused-driver has been acquitted as the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt.
Meaning thereby, in view of the doubt crept-in here and there, accused-driver stands acquitted.
10. Taking the above stated facts in view, it can be safely held that the accident was outcome ::: Downloaded on - 15/04/2017 20:40:01 :::HCHP -7- of the use of a motor vehicle, which has fallen in the orchard of the claimant and caused damage to the apple trees.
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11. There is sufficient proof on the file that the damage has been caused to the fruit bearing apple trees.
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12. The claimant has led evidence and has proved that the fruit bearing apple trees have been rt damaged. Keeping in view the statement made by the driver and other attending circumstances, I hold that the claimant has proved that, at least, damage was caused to three fruit bearing apple trees of the age of 14 years and claimant has been deprived of the income from those apple trees. In case, the claimant has to grow these trees, afresh, it will again take 14 years to become fruit bearing trees.
13. The question is how much compensation is to be awarded, in order to compensate the claimant.
::: Downloaded on - 15/04/2017 20:40:01 :::HCHP -8-14. The claimant has claimed Rs.12 lacs, as per the break-ups given in the claim petition and perhaps based his claim on the judgment made by .
the Motor Accident Claims Tribunal, Shimla in MAC No. 44-3/2 of 2005 decided on 1.11.2007 in which 15 top class 13 years fruit bearing apple trees of were damaged and Rs.10,54,766/- was granted as compensation. It is apt to reproduce paras 43 and rt 44 of the said judgment herein.
"43.So-far-as future loss is concerned, the same has been claimed for fourteen years because fresh plantation takes about 13-14 years for coming to fruit bearing stage. According to the petitioner, annual yield from such plants was roughly at Rs.1,50,000/-. In support of such contention, the petitioner has produced on record Sale receipts, Ex. P-23 to Ex. P-32. However, keeping in view the uncertainty and vagaries of nature and also after deducting the reasonable expenses for harvesting, marketing of crop, I take the net income at Rs.60,000/- per annum. Thus, the petitioner had suffered future loss to the tune of Rs.8,40,000/- that is, (Rs.60,000x14).
44.Calculated as above, the petitioner/claimant is held entitled to compensation of Rs.10,54,766/- (Rupees Ten Lacs Fifty Four Thousand Seven Hundred Sixty Six) only on account of actual loss as well as future loss. Such loss has been caused ::: Downloaded on - 15/04/2017 20:40:01 :::HCHP -9- due to rash and negligent driving of vehicle bearing No. HP-09A-0819 by the respondent No.2."
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15. It is beaten law of the land that while granting compensation under the Motor Vehicles Act, for short "the Act" , a guess work has to be of made. Apples are rich fruits and earn good income.
In view of para 14 supra, it can be safely said that, rt at least, minimum Rs.2 lacs were to be awarded under the head "Loss of Income" and, at least, Rs.10000/- under the head for "expenditure and maintenance".
16. Accordingly, a sum of Rs.2,10,000/- is awarded in favour of the claimant as compensation with interest @7.5% from the date of the impugned award till its realization.
17. Respondent No. 1 is saddled with the liability and is directed to deposit the same in the Registry within eight weeks from today. On deposit, the same be released to the claimant, ::: Downloaded on - 15/04/2017 20:40:01 :::HCHP
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through payees' cheque account, or by depositing the same in his bank account.
18. Accordingly, the appeal is allowed and .
the impugned award is set aside, as indicated hereinabove.
19. Send down the record forthwith, after of placing a copy of this judgment.
(cm Thakur) rt June 24, 2016 (Mansoor Ahmad Mir) Chief Justice.
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