Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Smt. Daljeet Kaur And Others on 2 December, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 4 of 2012.
Judgment reserved on: 25.11.2016 Date of decision: 02.12.2016.
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Oriental Insurance Company Ltd. ......... Appellant Versus Smt. Daljeet Kaur and others .....Respondents.
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
of Whether approved for reporting ?1 Yes.
For the appellant: Mr. Ashwani K. Sharma, Sr. rt Advocate with Mr. Jeevan Kumar, Advocate.
For the respondents: Mr. S.D. Gill, Advocate, for respondents No. 1 to 4.
Nemo for respondents No. 5 and 6. Mr. Neeraj Gupta, Advocate, for respondents No. 7 and 8.
Mr. Aman Sood, Advocate, for respondent No.9.
_________________________________________________ Mansoor Ahmad Mir, Chief Justice.
By the medium of this appeal, the appellant has thrown challenge to the judgment and award dated 19.10.2011, passed by the Motor Accident Claims Tribunal-I, Solan, District Solan, H.P. hereinafter referred to as "the Tribunal", for short, in MAC Petition No. 18-S/2 of 2009, titled Smt. Daljeet Kaur and others 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.::: Downloaded on - 15/04/2017 21:40:12 :::HCHP -2-
versus Hem Raj and others, whereby compensation to the tune of Rs.12,74,000/- alongwith interest @ 7.5% per annum came to be awarded in favour of the .
claimants and insurer was saddled with the liability, for short "the impugned award", on the grounds taken in the memo of appeal.
2. The claimants, owners, drivers and insurer-
of respondent No.9, have not questioned the impugned award on any ground, thus it has attained the finality, rt so far as it relates to them.
3. The insurer/appellant has questioned the impugned award on the grounds taken in the memo of appeal.
4. Learned counsel for the insurer-appellant argued that it is a case of contributory negligence. Both the drivers were negligent and at the best, the appellant has to satisfy 50% of the liability. He has further argued that the accident was outcome of rash and negligent driving of motorcyclist.
5. Learned counsel for respondent No. 9, i.e., the insurer of motor cyclist, vide order dated 4.11.2016 was asked to seek instructions to satisfy the award to ::: Downloaded on - 15/04/2017 21:40:12 :::HCHP -3- the extent of 50%. On 11.11.2016, he sought instructions and stated that he is under instructions to contest the lis.
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6. In order to determine the controversy, it is necessary to give a flash back of brief facts, the womb of which has given birth to the instant appeal.
7. The claimants being the victims of a of vehicular accident, have filed claim petition before the Tribunal for the grant of compensation to the tune of rt Rs.25 lacs, as per the break-ups given in the claim petition on account of death of Vikrant, who died in a motor vehicle accident which took place on 4.10.2007, near village Anji Tehsil and District Solan due to rash and negligent driving of driver of bus bearing registration No. HP-51-3651, as a result of which, the deceased, who was pillion rider on the motorcycle, bearing Registration No. HP-14-A-3841, sustained fatal injuries and succumbed to the injuries in the hospital.
8. The claim petition was resisted by the respondents and following issues came to be framed.
1. Whether the deceased Vikrant had died in an accident caused due to rash and negligent driving of the respondents No. 2 and 5? OPP.
::: Downloaded on - 15/04/2017 21:40:12 :::HCHP -4-2. If issue No. 1 is proved in affirmative, to what amount of compensation, the petitioners are entitled and from whom? OPP
3. Whether the vehicles were plied by the respondents No. 1 and 4 in violation of terms and conditions of the .
insurance policy and the respondents No. 3 and 6 are not liable to pay the amount of compensation? OPR-3 and 6.
4. Relief.
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9. Claimants have examined as many as six witnesses and one of the claimants, namely, Daljeet rt Kaur also stepped into the witness box as PW4.
Respondents have examined four witnesses and motor cyclist, namely, Harinder Grover stepped into the witness box as RW2.
10. The Tribunal, after scanning the evidence held that the accident was outcome of rash and negligent driving of bus driver and accordingly, decided issue No.1 in favour of the claimants.
11. I have gone through the record. The claimants have examined witnesses who have deposed that the accident was outcome of rash and negligent driving of bus driver.
::: Downloaded on - 15/04/2017 21:40:12 :::HCHP -5-12. The official witnesses, namely, RW1 MHC Chander Mohan and Ramanand Sharma, Summary Clerk of the office of Civil Judge, (Senior Division) .
Solan have stated that FIR was lodged against motor cyclist Harinder Grover and final charge sheet was also presented against him in the court of competent jurisdiction and was facing trial.
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13. While going through the statements of the witnesses, some of the witnesses have stated that bus rt driver has also not taken due care and caution while driving bus. In para 24 of the claim petition, it is specifically pleaded that the bus driver was rash and negligent in driving the bus. Bus driver and owner have filed the reply. It is apt to reproduce para 24 of the reply filed by respondents No. 1 and 2, i.e., bus driver and owner herein.
"24.That the contents of para 24 of the petition are misleading in nature. It is denied that the deceased was sitting as pillion rider on the motor cycle. The manner in which the accident has occurred has not been explained properly in this para of the petition. The deceased himself was driving the motor cycle and the respondent No. 5 was sitting as a pillion rider on the motor cycle. As stated above the motor cycle was being driven by the deceasd himself and the accident ::: Downloaded on - 15/04/2017 21:40:12 :::HCHP -6- had occurred when the diver of the motor cycle i.e. the deceased was over taking a standing truck on a sharp curve and while taking the pass from the stranded truck, the motor cycle being driven by the deceased struck against the bus and the deceased caused the .
accident. Thus, the stand taken in the petition to the effect that the deceased was pillion rider on the motor cycle is wrong, rather he was driving the motor cycle. It is emphatically denied that the accident had occurred due to sole rash and negligent driving of respondent No. 2 as alleged."
of [Emphasis added]
14. Some of the witnesses have stated that motor cycle struck with the bus on a sharp curve and rt some of the witnesses have deposed that bus struck with the motor cycle. PW3 Saravjeet Singh stated that local bus came from Kumarhatti side was being driven in rash and negligent manner and struck with the motor cycle coming from the opposite direction over which there was one pillion rider alongwith motor cyclist, who fell down and suffered fatal injuries.
15. It is beaten law of the land that in claim petitions, the standard of proof is on different footings as compared to the standard of proof required in criminal cases. In a claim petition, only prima facie proof is required and strict pleadings and proofs are not required.
::: Downloaded on - 15/04/2017 21:40:12 :::HCHP -7-16. My this view is fortified by the judgment rendered by the Apex Court in the case titled as Dulcina Fernandes and others versus Joaquim Xavier Cruz and .
another, reported in (2013) 10 Supreme Court Cases
646. It is apt to reproduce relevant portion of paras 8 and 9 of the judgment herein:
"8. In United India Insurance Co. Ltd. v. Shila Datta, (2011) 10 SCC 509, while considering the of nature of a claim petition under the Motor Vehicles Act, 1988 a three-Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may rt be extracted hereinbelow:
"10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.
* * *
(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation.......
(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry."
9. The following further observation available in para 10 of the Report would require specific note:
(Shila Datta case, (2011) 10 SCC 509, SCC p.
519)
"10. ............We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an ::: Downloaded on - 15/04/2017 21:40:12 :::HCHP -8- adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute."
(Emphasis added) .
17. This Court in FAO No. 530 of 2008 titled National Insurance Company Ltd. versus Jagtamba and others, decided on 27.11.2015 and in series of cases has laid down the similar principles of law.
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18. It appears that both the drivers have not taken due care and caution while driving their rt respective vehicles.
19. The question is-what is contributory negligence? When two drivers have not taken due care and caution while driving their respective vehicles and have contributed in causing the accident, is contributory negligence.
20. The apex Court in case titled Kamlesh and others versus Attar Singh and others reported in 2015 AIR SCW 6158 in para 8 has held as under:
"8. We have heard learned counsel for the parties and perused, inter alia, the evidence on record of Ram Parshad PW2 and Devender PW.3. The method and manner in which the accident has taken place leaves no room for doubt that it was a case of composite negligence of drivers of both the vehicles, that is the ::: Downloaded on - 15/04/2017 21:40:12 :::HCHP -9- driver of Maruti car and driver of tempo. Though Police has registered a case against driver of the tempo Attar Singh and has filed a chargesheet but the same cannot be said to be conclusive. Though, Attar Singh has stated that it was in order to oblige the driver of the .
Maruti car, a case was registered against him. Be that as it may. It appears both the drivers have tried to save their liability. In such circumstances, the version of eye-
witnesses, PW.2 and PW.3 assumes significance. The fact remains that car had dashed the tempo on the middle portion near footstep. Thus the method and of manner in which the accident has taken place leaves no room for doubt that both the drivers were negligent. Man may lie but the circumstances do not is the rt cardinal principle of evaluation of evidence. No effort has been made by the High Court to appreciate the evidence and method and manner in which the accident has taken place. Both the aforesaid witnesses have stated Maruti Car was in excessive speed. However, it appears driver of tempo also could not remove his vehicle from the way of Maruti Car. Thus, both the drivers were clearly negligent. It appears from the facts and circumstances that both the drivers were equally responsible for the accident. Thus, it was a case of composite negligence. Both the drivers were joint "tort-feasors", thus, liable to make payment of compensation."
21. The apex Court in another judgment in case titled Meera Devi and another versus H.R.T.C. and others reported in 2014 AIR SCW 1709 has laid down the similar principles of law. It is apt to reproduce para 10 of the said judgment herein.
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"10.To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to .
prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case."
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22. The Apex Court in Khenyei versus New rt India Assurance Co. Limited & others, reported in 2015 AIR SCW 3169 has laid down the same principles of law.
23. Applying the test, it can be safely held that both the drivers have driven the vehicles rashly and negligently and the accident was outcome of contributory negligence.
24. The factum of insurance of both the vehicles is not in dispute. The insurer of both the vehicle have failed to prove that the owners of offending vehicles have committed any willful breach in terms of the insurance policy and issue No. 3 rightly came to be ::: Downloaded on - 15/04/2017 21:40:12 :::HCHP
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decided in favour of claimants and against both respondents No. 3 and 6 in the claim petition.
25. The adequacy of compensation is not in .
dispute. Even the claimants have not questioned the adequacy of compensation.
26. Having said so, both the drivers have contributed in causing the accident in which deceased, of a pillion rider, sustained injuries and succumbed to the same. Thus, the insurers of both the offending vehicles rt are saddled with the liability in equal shares.
27. The rate of interest, as awarded by the Tribunal is maintained.
28. Respondent No. 9, i.e., Bajaj Allianz Insurance Company Ltd. is directed to deposit the 50% of the awarded amount alongwith interest in the Registry of this Court within eight weeks from today.
On deposit, Registry to release the same in favour of the claimants, strictly in terms of the conditions contained in the impugned award through payees' cheque account, or by depositing the same in their bank accounts, after proper verification.
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29. Out of the amount already deposited by the appellant-insurer-Oriental Insurance Company, 50% be released to the claimants, strictly in terms of the .
conditions contained in the impugned award through payees' cheque account, or by depositing the same in their bank accounts, after proper verification and rest of the amount be refunded to the insurer/ Oriental of Insurance Company Ltd. through payees cheque account. rt
30. Viewed thus, the appeal is allowed and the impugned award is modified, as indicated hereinabove.
31. Send down the record forthwith, after placing a copy of this judgment.
December 02, 2016. (Mansoor Ahmad Mir) (cm Thakur) Chief Justice.
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