Himachal Pradesh High Court
Monika Kumari And Another vs The United India Insurance Company And ... on 11 April, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(MVA) No. 576 of 2016.
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Date of decision: 11th April, 2018 Monika Kumari and another ...... Appellants/petitioners Versus The United India Insurance Company and others ..... Respondents Coram Whether approved for reporting? No The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. 1 For the appellants : Mr. Vijay Chaudhary, Advocate. For the respondents : Mr. G. D. Sharma, Advocate, for respondent No.1.
None for respondents No.2(i) to 2(iv).
Tarlok Singh Chauhan, Judge Taking into consideration the nature of the order I propose to pass, it is not at all necessary to delve into the facts in detail. Suffice it to state that the appellants/petitioners (hereinafter referred to as the petitioners) filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'Act') before the learned Motor Accident Claims Tribunal, Chamba, (for short 'Tribunal') claiming therein compensation to the tune of `15,00,000/- from the respondents on account of death of Kamal Kishore, who was the husband of petitioner No.1, father of petitioner No.2 and son of proforma respondent No.3 and died in a Motor Vehicle Accident on 14.1.2012 at about 7.30 near byepass barrier, G.T. Road, Gurdaspur. As per the petitioners, the deceased was travelling on Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 13/04/2018 23:00:57 :::HCHP ...2...
vehicle Activa No. PB06-LT-7550, which met with an accident at the byepass barrier G.T. Road, Gurdaspur, as a result whereof, the .
deceased sustained severe head injury and other multiple injuries and died on the spot. The accident occurred because of the rash and negligent driving of Arun Kumar, who also died in the accident. The deceased was 35 years and a shopkeeper by profession and was earning `30,000/- per month. The vehicle belonged to Anil Devi Singh (since deceased) and at the time of the accident was insured with the United India Insurance Company i.e. respondent No.1 herein.
2. The claim petition was contested by the Insurance Company by filing reply wherein preliminary objections regarding maintainability, non-joinder of necessary parties etc. were raised. On merits, it was contended that both the drivers of the scooty and truck involved in the accident were not having valid and effective driving licence and the vehicles were being driven in violation to the terms and conditions of the Insurance Policy as also Motor Vehicles Act. It was claimed that the deceased was not a shopkeeper as alleged, he was a casual labourer.
4. The learned Tribunal below on 12.5.2016 framed the following issues:
1. Whether the petitioners are entitled for compensation on account of death of Shri Kamal Kishore in the accident involving vehicle No. PB 06 LT-7550 on 14.1.2012 at about 7.30 PM near byepass Barrier G.T.Road, Distt. Gurdaspur due to rash and negligent driving of driver, who had also died in the said accident? OPP
2. If issue No.1 is proved in the affirmative, as to what amount of compensation the petitioners are entitled to and from whom?
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3. Whether this petition is bad for non-joinder of necessary parties?
OPR1 .
4. Whether the vehicle in question was being driven in violation of terms and conditions of insurance policy and without any driving license? OPR1
5. Whether the driver of vehicle which had hit the Scooty Activa on which the deceased was travelling, could not be traced out and untraced report has been filed after the investigation, if so, the effect thereto? OPR1
6. Whether driver of the vehicle which had hit the Scooty of the deceased was rash and negligent in driving the vehicle, hence present petition is not maintainable? OPR1
7. Relief.
5. After recording the evidence and evaluating the same, the learned Tribunal below has dismissed the claim petition constraining the appellants to file the instant appeal.
I have heard learned counsel for the parties and gone through the records of the case carefully.
6. A perusal of the award would disclose that one of the main reasons that weighed in the mind of the learned Tribunal was the FIR No. 20 of 2012 which was registered at the instance of Surinder Kumar and was alleged to be the third passenger on the Scooty. In the FIR so recorded, it was mentioned that the Scooty on which the deceased was pillion rider had been hit from backside by the truck/tralla. Admittedly, the FIR was not lodged at the instance of the claimants and, therefore, I really see no reason why they should be denied compensation in view of the contents thereof, more particularly, in light of the fact that an untraced report was filed by the police in this case. There is nothing on record that the claimants were associated in the investigation of the case or supported the contents thereof.
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7. 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. Granting of compensation is a welfare legislation and the hyper- technicalities, 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. This was so held by the Hon'ble Supreme Court in case titled N.K.V. Bros.(P) Ltd. versus M. Karumal Ammal and others etc. AIR 1980 Supreme Court, 1354 wherein it was held as under:
"3. Road accidents are one of the top killers in our country, specially 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 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 emphasizing 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 "neighbor". Indeed, the State must seriously consider no-fault liability by legislation. A second ::: Downloaded on - 13/04/2018 23:00:57 :::HCHP ...5...
aspect which pains us is the inadequacy of the compensation or undue parcimony practiced by tribunals.
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We must remember that judicial tribunals 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."
8. Even otherwise the issue of negligence was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not on the basis of proof beyond reasonable doubt as was held by the Hon'ble Supreme Court in Dulcina Fernandes & Ors. vs. Joaquim Xavier Cruz & Anr. AIR 2012 SCW 6014 wherein it was observed as under:
"7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probability and certainly not on the basis of proof beyond reasonable doubt. [Bimla Devi & Ors. vs. Himachal RTC (2009) 13 SCC 530:( AIR 2009 SC 2819: 2009 AIR SCW 4298)]. In United India Insurance Company Limited vs. Shila Datta & Ors. (2011) 10 SCC 509:
(AIR 2012 SC 86: 2011 AIR SCW 6541) while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three-judge bench of this Court has culled out certain ::: Downloaded on - 13/04/2018 23:00:57 :::HCHP ...6...
propositions of which propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may .
be extracted hereinbelow:
"(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."
The following further observation available in paragraph 10 of the report would require specific note:
"We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an 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."
9. Similar reiteration of law can be found in the judgments rendered by this Court in Asha & others vs. Sh. Moti Ram and others 2014 (2) Him.L.R. 937, Ram Pyari and Anr. Vs. The New India Assurance Co. Ltd. and Anr 2014 (Suppl.) Him.L.R. 2527 and Oriental Insurance Company vs. Daljeet Kaur 2016 (6) ILR (HP) 1173.
10. At this stage, Mr. G.D. Sharma, learned counsel for the Insurance Company i.e. respondent No.1 has vehemently argued that irrespective of the claim of the petitioners once it is proved on record that there were three passengers travelling on the scooty, then there is a breach of the policy and obviously, therefore, the liability to pay the compensation, if any, cannot be fixed upon the Insurance Company and ::: Downloaded on - 13/04/2018 23:00:57 :::HCHP ...7...
at best it can initially satisfy the award and thereafter recovered the same from the owner.
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11. I find merit in this contention as it is duly established and proved on record that there is a breach of the policy inasmuch as scooter/scooty is a vehicle which permits only a single adult pillion rider, whereas in the instant case there were two pillion riders. Therefore, while accepting the plea of the Insurance Company that in the event of the compensation being awarded to the petitioners, it would be initially paid by the Insurance Company which, in turn, will have the right to recover the same from the owner of the scooty.
12. In view of the aforesaid discussion, the findings of the learned Tribunal below on issues No. 1, 3 and 6 are not sustainable in the eyes of law and are accordingly set-aside and the matter is remitted back to the learned Tribunal to decide the remaining issues bearing in mind the aforesaid observations.
13. The parties through their counsel(s) are directed to appear before the learned Tribunal below on 25.4.2018 when the learned Tribunal shall issue notice to the unrepresented parties and thereafter decide the petition as expeditiously as possible and in no event later than 31st July, 2018.
14. The appeal is disposed of in the aforesaid terms, so also the pending application(s) if any. The parties are left to bear their own costs.
11th April, 2018. (Tarlok Singh Chauhan),
(GR) Judge
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