Himachal Pradesh High Court
Magni Devi & Others vs Suneel Kumar & Others on 13 March, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 4248 of 2013 Reserved on: 27.02.2015 .
Decided on: 13.03.2015
Magni Devi & others ...Appellant.
Versus
Suneel Kumar & others ...Respondents.
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. Whether approved for reporting? Yes.
For the appellants: Mr. Ashok K. Tyagi, Advocate.
For the respondents: Ms. Jyotsna Rewal Dua, Advocate, for respondents No. 1 and 2.
Mr. Jagdish Thakur, Advocate, for
respondent No. 3.
Mansoor Ahmad Mir, Chief Justice
By the medium of this appeal, the appellants-claimants have called in question the award, dated 1st November, 2013, made by the Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P. (hereinafter referred to as "the Tribunal") in MAC Petition No. 41-MAC/2 of 2010, titled as Smt. Magni Devi and others versus Suneel Kumar and others, whereby the claim petition filed by the appellants-claimants came to be dismissed (hereinafter referred to ::: Downloaded on - 15/04/2017 17:45:50 :::HCHP -: 2 :- as "the impugned award) on the grounds taken in the memo of appeal.
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2. It is profitable to give a brief resume of the facts of the case herein.
Brief facts:
3. The claimants invoked the jurisdiction of the Tribunal in terms of Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the MV Act") for grant of compensation to the tune of ` 25,00,000/-, as per the break-ups given in the claim petition, on the ground that their sole bread earner, Shri Mansha Ram, became the victim of the vehicular accident which was caused by driver-
respondent No. 2, namely Shri Ravinder, who had driven the vehicle, bearing registration No. HP-16A-1175, rashly and negligently on 17th August, 2010, at about 5.15 p.m., near Village Bandhala, District Sirmaur, H.P. He was taken to Hospital at Dadahu, was referred to Zonal Hospital, Nahan, where he succumbed to the injuries. The claimants have also claimed, rather pleaded, in the claim petition that the deceased was a government employee, was working as a Beldar in H.P.P.W.D. and his monthly salary was ` 13,000/-, was also earning ` 5,000/- from agricultural vocations.
::: Downloaded on - 15/04/2017 17:45:50 :::HCHP -: 3 :-4. The respondents have resisted the claim petition on the grounds taken in the respective memo of objections.
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5. Following issues came to be framed by the Tribunal on 2nd September, 2011:
"1. Whether Mansha Ram died on account of rash and negligent driving of offending vehicle No. HP-16A-1175 by respondent No. 2 Ravinder on 17-8-2010, at about 5:15 PM, near place Bandala, as alleged?
OPP
2. In case issue No. 1 is determined in affirmative, to what amount of compensation, the petitioners are entitled to and from whom?
OPP
3. Whether the petition is not maintainable in the present form, as alleged?
OPR-3
4. Whether the driver of the offending vehicle did not possess a valid and effective driving licence and that the vehicle was being plied in violation of the terms and conditions of the insurance policy, as alleged? OPR-3
5. Whether the petition has been filed in collusion with respondents No. 1 and 2, as alleged? OPR-3
6. Whether the deceased was travelling in the vehicle in question as an unauthorised passenger, as alleged?
OPR-3
7. Relief."
6. The claimants have examined Shri Madan Lal, Junior Assistant, HPPWD Sub Division Dadahu, as PW-1; Shri Mata Ram as ::: Downloaded on - 15/04/2017 17:45:50 :::HCHP -: 4 :- PW-3 and one of the claimants, Smt. Magni Devi, herself appeared in the witness box as PW-2. The claimants have also placed on .
record salary certificate as Ext. PW-1/A, affidavit of Smt. Magni Devi as Ext. PW-2/A, copies of FIR, post mortem report, Pariwar register & death certificate as Ext. PW-2/B, Ext. PW-2/C, Ext. PW-
2/D & Ext. PW-2/E, respectively; affidavit of Shri Mata Ram as Ext.
PW-3/A and copy of report under Section 173 of the Code of Criminal Procedure (hereinafter referred to as "the CrPC") as Ext.
PX. The respondents have not led any evidence and has placed on record copy of the driving licence as Ext. RX.
7. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimants have failed to prove that the driver had caused the accident and the vehicle was involved in the accident. Accordingly, issue No. 1 came to be decided against the claimants and in favour of the respondents and consequently, the claim petition also came to be dismissed.
8. I have heard the learned counsel for the parties and have gone through the record.
9. I am of the considered opinion that the Tribunal has fallen in an error in deciding issue No. 1 for a simple reason that the claimants have not to prove their case beyond reasonable doubt, ::: Downloaded on - 15/04/2017 17:45:50 :::HCHP -: 5 :- but have to, prima facie, prove their case by adopting summary procedure and strict proof is not required.
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10. Granting of compensation is just to ameliorate the woes of the victims of the vehicular accidents and to save them from succumbing to the social evils. It is just a source of help to the victims/claimants/affected parties, who have lost their bread earner.
11. It is beaten law of land that granting of compensation is a welfare legislation and the hypertechnicalities, mystic maybes, procedural wrangles and tangles have no role to play and cannot be made ground to defeat the claim petitions and to defeat the social purpose of granting compensation.
12. My this view is fortified by the judgment of the Apex Court in the case titled as N.K.V. Bros. (P.) Ltd. versus M. Karumai Ammal and others etc., reported in AIR 1980 Supreme Court 1354. It is apt to reproduce relevant portion of para 3 of the judgment herein:
"3. Road accidents are one of the top killers in our country, specifically when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accident Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain ::: Downloaded on - 15/04/2017 17:45:50 :::HCHP -: 6 :- cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, .
technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
Indeed, the State must seriously consider no- fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parcimony practised by tribunals. We must remember that judicial rtribunals are State organs and Art. 41 of the Constitution lays the jurisprudential foundation for state relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Court should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard.
Emphasis supplied"
13. The Jammu and Kashmir High Court in the case titled as Oriental Insurance Co. versus Mst. Zarifa and others, reported in AIR 1995 Jammu and Kashmir 81, held that the MV Act is Social Welfare Legislation and the procedural technicalities ::: Downloaded on - 15/04/2017 17:45:50 :::HCHP -: 7 :- cannot be allowed to defeat the purpose of the Act. It is profitable to reproduce para 20 of the judgment herein:
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"20. Before concluding, it is also observed that it is a social welfare legislation under which the compensation is provided by way of Award to the people who sustain bodily injuries or get killed in the vehicular accident. These people who sustain injuries or whose kith and kins are killed, are necessarily to be provided such relief in a short span of time and the procedural technicalities cannot be allowed to defeat the just purpose of the Act, under which such compensation is to be paid to such claimants."
14. It is also apt to reproduce relevant portion of para 12 of the judgment of the Apex Court in the case titled as Sohan Lal Passi versus P. Sesh Reddy and others, reported in AIR 1996 Supreme Court 2627, herein:
"12. ........................While interpreting the contract of insurance, the Tribunals 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 ::: Downloaded on - 15/04/2017 17:45:50 :::HCHP -: 8 :- execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle.
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The procedure and result of the execution of the decree is well known."
15. The Apex Court in a case titled Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another, reported in (2013) 10 Supreme Court Cases 646 has laid down the same principle and held that strict proof and strict links are not required.
16. Admittedly, FIR was lodged against the driver, i.e. respondent No. 2, investigation was conducted and final report was presented against him before the Court of competent jurisdiction, i.e. Judicial Magistrate, Ist Class, Nahan, District Sirmaur, Himachal Pradesh (hereinafter referred to as "the trial Court"), who has dismissed the challan and acquitted the accused/driver-respondent No. 2 on the grounds that the identity of the vehicle was not established by the prosecution and it has failed to bring home the guilt to the accused.
17. It is apt to mention herein that the learned counsel for respondents No. 1 and 2 has made available the certified copy of the judgment made by the trial Court in the criminal proceedings, which was made part of the file. It is apt to reproduce paras 29 and 30 of the judgment herein:
"29. Likewise, ASI Ranjeet Singh, who investigated the matter has been examined ::: Downloaded on - 15/04/2017 17:45:50 :::HCHP -: 9 :- as PW11, who has simply stated about the various steps having been taken by him in the investigation of the case but on the basis .
of his statement also, it cannot be said that identity of the offending pick-up as well as the accused have been proved in the commission of crime. Moreover, he has no where stated that at the time of accident, accused was not having a valid driving licence to drive the offending pick-up. Had such evidence been led by him that accused was possessing a driving licence of light motor vehicles and not of light goods vehicle, even then, when it has not been proved, on record, that he was driving the offending pick-up at the time of accident, prosecution cannot be said to have succeeded in proving even the ingredients of offence punishable r under Section 181 of the Act.
30. Likewise, when it has not been proved, on record, that accused was driving the offending pick-up and the offending pick-up was involved in the commission of crime, I am of the view that accused cannot be held liable for commission of offences punishable under Sections 279, 304-A and 201 of the Code as well as under Section 187 of the Act. Thus, all the points under discussion are held against the prosecution."
18. Respondents No. 1 and 2 have filed reply in the claim petition and have admitted that the accident was caused, but have stated that it was caused due to the negligence of the deceased and not of the driver. It is apt to reproduce paras 1, 8 to 13 and last three lines of para 22 of their reply herein:
"1. That introductory para No. 1 of the petition as laid is not admitted. The deceased was not travelling in the vehicle owned by the respondent No. 1 and driven by respondent No. 2. Rather ::: Downloaded on - 15/04/2017 17:45:50 :::HCHP -: 10 :- the deceased attempted to board the moving vehicle, un-noticed by the respondent No. 2 and fell on the ground .
in this process.
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8 to 13. That paras 8 to 13 of the petition as stated, are not admitted. the deceased attempted to board the moving vehicle bearing Registration No. HP-16-A-1175 without the consent, permission or knowledge of the respondent No. 2 and probably fell down, while climbing and boarding the same. He might have received injuries, but the treatment given in R.H. Nahan is free of charge, therefore the averment that a sum of Rs. 15000/-
r were spent on his treatment is categorically denied.
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22. ...............The manner in which the deceased tried to board the aforesaid vehicle in an illigal and irresponsible manner reflects that the deceased himself and non else has to be blamed for the alleged accident. The amount claimed in highly exaggerated and disproportionated."
19. Thus, the identity of the driver as well as the vehicle was established. The only point to be determined was - whether the deceased, of his own, attempted to board the moving vehicle? The Tribunal has not returned any finding on this issue. This issue could have been determined by examining the Investigating Officer of the said criminal case, but he has not been examined.
::: Downloaded on - 15/04/2017 17:45:50 :::HCHP -: 11 :-20. The appellants-claimants have also moved an application under Order 41 Rule 27 of the Code of Civil Procedure .
(hereinafter referred to as "the CPC") and have sought leave of this Court to lead additional evidence and also to examine the Investigating Officer.
21. In the given circumstances, the impugned award is set aside and the case is remanded with a direction to the Tribunal to provide opportunity to the claimants to examine the Investigating Officer or any other police official or witnesses, who have participated in the investigation of the case or whose statements have been recorded during investigation in terms of Section 161 CrPC and to bring on record any evidence. The claimants can also apply for procuring the attendance of the witnesses through Court process. The respondents are also at liberty to lead evidence in rebuttal. The Tribunal is directed to conclude the claim petition within six months with effect from 23rd March, 2015.
22. Parties are directed to cause appearance before the Tribunal on 23rd March, 2015.
23. Registry to send the record alongwith copy of this judgment to the Tribunal by or before 23rd March, 2015.
::: Downloaded on - 15/04/2017 17:45:50 :::HCHP -: 12 :-24. The appeal is disposed of, as indicated hereinabove, alongwith all pending applications, if any.
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(Mansoor Ahmad Mir)
Chief Justice
March 13, 2015
( rajni )
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