Rajinder Kumar vs Joginder Singh And Others on 6 May, 2016

[Cites 3, Cited by 1]

Himachal Pradesh High Court

Rajinder Kumar vs Joginder Singh And Others on 6 May, 2016

Bench: Mansoor Ahmad Mir

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 493 of 2009.

                                  Decided on :          06.05.2016
            Rajinder Kumar                            .....Appellant
                                  Versus




                                                           .
            Joginder Singh and others                ..... Respondents





    Coram:

The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice Whether approved for reporting? yes. For the appellant: Mr.Deepak Kaushal, Advocate.

of For the respondents: Nemo for respondents No.1 and 2.

                          Mr.J.S.   Bagga,    Advocate,     for
                          respondent No.3.

___________________________________________________________ Mansoor Ahmad Mir, Chief Justice(Oral) rt Subject matter of this appeal is the award, dated 31st August, 2009, passed by the Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P., (for short, the Tribunal), in Claim Petition No.148-MAC/2 of 2007, titled Rajinder Kumar vs. Joginder Singh and others, whereby the claim petition came to be dismissed, (for short, the impugned award).

2. Facts of the case, in brief, are that the claimant (appellant herein) invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehicles Act, 1988, (for short, the Act), claiming compensation to the tune of Rs.1,25,000/-

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as damages caused to his Maruti Van bearing registration No.HP-18A-1844. It was alleged in the claim petition that on 19th December, 2005, at about 3.45 p.m. near village .

Shambuwala, Nahan, the driver, namely, Joginder Singh (respondent No.1), had driven the truck bearing registration No.HP-17-9282, rashly and negligently, hit the van owned by the claimant and damaged the van extensively. Thus, the of claim petition filed by the claimant.

3. Respondents filed replies and on the pleadings of rt the parties, the following issues came to be settled:

"1. Whether the Maruti Van No.HP-18A-1844 had sustained damage due to rash or negligent driving of the truck No.HP-17-9282 by respondent No.1 on 19.12.2005 at about 3.45 PM near village Shambuwala, Nahan, as alleged? OPP

2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioner is 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 truck did not possess a valid and effective driving licence at the time of accident, as alleged? OPR-3 ::: Downloaded on - 15/04/2017 20:17:10 :::HCHP 3

5. Whether the truck in question was being plied in violation of the terms and conditions of the insurance policy and without any route permit, as alleged? OPR-

.

6. Whether the petition is bad for non-joinder of necessary party, i.e. driver and insurance company of Maruti Van No.HP-18A-1844, as alleged? OPR-3

7. Relief."

4. Claimant examined PW-2 Subodh Kumar and PW-3 Devi Dayal. The claimant himself also stepped into the witness box as PW-1. On the other hand, the respondents rt have not led any evidence. Thus, the evidence led by the claimant remained unrebutted.

5. The Tribunal, after scanning the evidence, held that the claimant failed to prove that the damage had been caused to the Van due to the rash and negligent driving of respondent No.1 Joginder Singh, which findings, are illegal, perverse and erroneous for the reasons to be recorded hereinbelow.

6. A perusal of paragraph 11 of the impugned award shows that in another claim petition, which was filed ::: Downloaded on - 15/04/2017 20:17:10 :::HCHP 4 by the legal heirs of deceased Sohan Lal (driver of Van bearing No. HP-18A-1844), being Claim Petition No.106- MAC/2 of 2006, titled Saroj Rani and others vs. Joginder .

Singh and others, settled before the Lok Adalat on 29th March, 2008, it was proved that the driver of the offending truck namely Joginder Singh was having a valid and effective driving licence to drive the offending truck.

7. In the given circumstances, how it can be said that the claimant has failed to prove that Joginder Singh rt had driven the offending truck rashly and negligently and had caused damage to his vehicle i.e. Van bearing No. HP-

18A-1844, as has been held by the Tribunal.

8. The Tribunal in paragraph 15 of the impugned award has recorded that the claimant himself had admitted in his statement that the driver of his van, namely, Sohan Lal and driven the van rashly and negligent, as a result of which the accident had occurred. However, while going through the statement of the claimant, it is apparent that he never stated so while appearing in the witness box as PW-1. The Tribunal in paragraph 8 of the impugned award, while ::: Downloaded on - 15/04/2017 20:17:10 :::HCHP 5 discussing the statement of the claimant, has recorded that the claimant had stated that the accident had occurred due to the rash and negligent driving of the truck driver i.e. .

respondent No.1 namely Joginder Singh. Thus, the findings recorded by the Tribunal are self contradictory and needs to be set aside.

9. In view of the above discussion, the pleadings of and the evidence, oral and documentary, and also the fact that another claim petition arising out of the same accident, rt stood settled before the Lok Adalat, as discussed supra, I am of the opinion that Joginder Singh, respondent No.1, had driven the offending truck rashly and negligent and had caused the accident.

10. Factum of insurance is admitted. Thus, the only question remains to be determined is quantum of compensation.

11. The claimant, in the claim petition, claimed compensation to the tune of Rs.1,25,000/-, but placed on record bill to the tune of Rs.1,07,291.95, and other bills (Exts.P-

1 to P-10), issued by Sumeet Motors for the repairs of the said ::: Downloaded on - 15/04/2017 20:17:10 :::HCHP 6 Van. The respondents have not led any evidence in rebuttal. Thus, as observed above, the evidence led by the claimant remained un-rebutted.

12. However, keeping in view the facts of the case in entirety, I deem it proper to award Rs.1.00 lac, in lump sum, without interest, in favour of the claimant and the insurer is held liable to pay the said amount. The amount be of deposited by the insurer within a period of six weeks from today and on deposit, the amount be released forthwith in rt favour of the claimant through his bank account. In case, the amount is not deposited within the stipulated period, it shall carry interest at the rate of 7.5% per annum from today till deposit.

13. The impugned award is set aside and the appeal is allowed accordingly.

Copy dasti.






    May 06, 2016.                             ( Mansoor Ahmad Mir )
          (Tilak)                                    Chief Justice





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