Himachal Pradesh High Court
Smt. Savitri Devi Widow Of Late Shri ... vs Sh. Mohinder Pal Son Of Shri Ram Lal & ... on 19 December, 2016
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
FAO (MVA) No. 121 of 2013
Judgement Reserved on 6th December 2016
.
Date of decision 19th December 2016
________________________________________________________
Smt. Savitri Devi widow of late Shri Balwant Singh
....Appellant/Petitioner
Versus
Sh. Mohinder Pal son of Shri Ram Lal & others
....Respondents.
of
_____________________________________________________
Coram
The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes.
rt __________________________________________________________ For the Appellant: Mr. J.L. Bhardwaj Advocate.
For Respondents Nos. 1 & 2: Mr. T.S. Chauhan Advocate.
For Respondent No.3: None.
P.S. Rana, Judge.
Decision:- Present appeal is filed under Section 173 of
Motor Vehicles Act 1988 against award passed by learned Motor Accident Claims Tribunal Fast Track Court Una (H.P.) announced in MAC petition No. 17 of 2008 title Savitri Devi vs. Mohinder Pal and others.
1Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 2Brief facts of the case
2. Smt. Savitri Devi filed claim petition under Section 166 of Motor Vehicles Act 1988 pleaded therein .
that deceased namely Balwant Singh had gone to pay electricity bill at Bijlighat near Mittal Industries Gagret and when he came after depositing the bill at 10.45 AM then deceased was standing on a portion of road near tractor repair shop at about 11 AM. It is pleaded that a maruti car of No. HP-19-5008 came from Gagret side which was driven by Mohinder Pal Suniara who was giving training of driving rt to his son namely Nitin @ Ladi. It is pleaded that as soon as Mohinder Pal handed over the car to his son Nitin who could not control the vehicle and hit the car with deceased Balwant Singh standing on road. It is pleaded that deceased fell upon motor cycle No. PB-08R-3285 which was driven by Vijay Kumar resident of village Panjawar and Manoj Kumar son of Deep Kumar was pillion rider over motor cycle and they also sustained injuries. It is pleaded that Vijay Kumar and Manoj Kumar were admitted in PHC Gagret and thereafter discharged. It is pleaded that Manoj Kumar son of Deep Kumar reported the matter at police station Gagret and FIR No. 25 of 2008 ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 3 dated 18.2.2008 was registered under Sections 279, 304A and 201 IPC in P.S. Gagret. It is pleaded that police officials did not conduct the investigation fairly and .
impartially and they did not associate the actual culprits named above during pendency of investigation. It is pleaded that petitioner thereafter filed written complaint to Director General of Police on 30.5.2008. It is pleaded that petitioner is poor lady and she has no source of of income and she was dependent upon income of deceased.
Age of deceased pleaded as 56 years and occupation of rt deceased pleaded as private business. Monthly income of deceased pleaded as Rs.6000/- (Rupees six thousand) per month. It is pleaded that deceased sustained head injury and also sustained damage to his skull bones. It is pleaded that deceased died at the spot. Compensation to the tune of Rs.612000/- (Rupees six lac tweleve thousand) sought.
3. Per contra response filed on behalf of co-
respondents Nos. 1 and 2 pleaded therein that petition is not maintainable and petitioner has no cause of action to file present petition. It is pleaded that co-respondents Nos. 1 and 2 were not driving the car No. HP-19-5008 at ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 4 the relevant time. It is pleaded that co-respondent No.1 has sold car No. HP-19-5008 to third person. Prayer for dismissal of petition sought.
.
4. Per contra separate response filed on behalf of co-respondent No. 3 namely Vijay Kumar pleaded therein that claim petition is not maintainable. It is pleaded that claim petition is bad for misjoinder of parties.
It is pleaded that co-respondent No. 3 was not driving of vehicle No. HP-19-5008 at the time of accident. It is pleaded that co-respondent No. 3 was not owner of rt vehicle No. HP-19-5008 at the time of accident. Prayer for dismissal of petition sought.
5. Petitioner also filed rejoinder and re-asserted allegations mentioned in petition.
6. As per pleadings of parties learned MACT Una framed following issues on 23.2.2011:-
1. Whether deceased Balwant Singh died due to rash and negligent driving of car bearing registration No. HP-19-5008 on 18.2.2008 at 10.45 AM near electricity office Gagret by co-respondent No.1? OPP
2. If issue No. 1 is proved in affirmative whether the petitioner is entitled for ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 5 compensation if so how much and from whom? ....OPP
3. Whether petition is not maintainable in present form? ....OPR .
4. Whether petitioner has no cuase of action against the respondents? ....OPRs 1 & 2
5. Whether petition is bad for mis-joinder of party as alleged? ....OPR 3
6. Relief.7. Learned MACT Una decided issues Nos. 1, 3
of and 5 in negative and decided issue No. 4 in affirmative.
Learned MACT Una decided issue No. 2 as redundant.
Learned MACT dismissed petition filed under Section 166 rt of Motor Vehicles Act 1988.
8. Feeling aggrieved against award passed by learned MACT appellant namely Savitri Devi filed present appeal.
9. Court heard learned Advocate appearing on behalf of appellant and learned Advocate appearing on behalf of respondents and Court also perused entire record carefuly.
::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 610. Following points arises for determination in appeal:-
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum .
of grounds of appeal?
2. Relief.
11. Findings upon point No.1 with reasons 11.1 PW1 Savitri Devi has filed her affidavit in examination in chief. There is recital in affidavit that on of 18.2.2008 at about 10.45 AM deceased Balwant Singh went to electricity office at Gagret market and when he was standing near electricity office then car No. HP-19- rt 5008 came from Gagret market which was driven by Nitin Kumar @ Ladi and Mohinder Pal was sitting by side of seat of car No. HP-19-5008. There is further recital in affidavit that Mohinder Pal was giving training of driving to his son Ladi. There is recital in affidavit that said car struck against deceased Balwant Singh who fell on motor cycle No. PB-08R-3285. There is recital in affidavit that motor cycle was driven by Vijay Kumar and Manoj Kumar was sitting as pillion rider on motor cycle. There is recital in affidavit that FIR was lodged in police station Gagret and deceased was brought to PHC Gagret. There is recital in affidavit that post mortem of deceased was conducted in ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 7 District Hospital on 18.2.2008. There is recital in affidavit that age of deceased Balwant Singh was 56 years and he was earning Rs.6000/- (Rupees six thousand) per month.
.
There is further recital in affidavit that accident took place due to rash or negligent driving of vehicle by Mohinder Pal and his son Ladi. There is further recital in affidavit that deponent spent Rs.60000/- (Rupees sixty thousand) on cremation and for performing last religious ceremony.
of PW1 has stated that accident did not take place in her presence. PW1 has stated that accident took place in rt presence of Vijay and Manoj. PW1 has stated that post mortem of deceased was conducted. PW1 has stated that FIR was filed in police station. PW1 has denied suggestion that no accident took place. PW1 has admitted that deceased did not die due to fault of motor cycle No.PB-
08R-3285.
11.2. PW2 Bhajan Lal has filed affidavit in examination-in-chief. There is recital in affidavit that on 18.2.2008 deponent had gone to Gagret market and when he was standing near electricity Ghat at 10.45 AM he met Balwant Singh deceased who was standing there. There is recital in affidavit that Mohinder Pal and his son Nitin ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 8 Kumar @ Ladi came in car No. HP-19-5008. There is further recital in affidavit that Ladi was driving the car and Mohinder Pal was giving him training. There is recital in .
affidavit that Ladi was driving the car in rash and negligent manner and struck car against deceased Balwant Singh who fell on motor cycle No. PB-08R-3285 and died. There is further recital in affidavit that motor cycle No. PB-08R-3285 was driven by Vijay Kumar and of Manoj Kumar was sitting as pillion rider. There is further recital in affidavit that both of them took the deceased to rt PHC Gagret for his medical examination. There is recital in affidavit that Balwant Singh deceased was earning Rs.6000/- (Rupees six thousand) per month. There is further recital in affidavit that accident was informed by deponent to wife of deceased. PW2 has denied suggestion that accident did not take place in his presence. PW2 has stated that accident did not take place due to fault of driver of motor cycle No. PB-08R-3285.
11.3 PW3 Dr.Indu Bhardwaj medical officer Regional Hospital Una has stated that she is posted as medical officer in regional hospital Una since 1.3.2006.
PW3 has stated that on 18.2.2008 she conducted post ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 9 mortem of deceased Balwant Singh. PW3 has stated that cause of death was fracture of skull and brain haemorrhage. PW3 has stated that post mortem report is .
Ext.PW3/A which is in her hand and bears her signatures.
PW3 has stated that injury could be caused if person would strike against car and fall on hard surface with big impact. PW3 has stated that deceased died within 2/3 minutes. PW3 has stated that if motor cycle would run and of if struck then injury could be possible.
11.4 RW1 Mohinder Pal has filed affidavit in his rt examination in chief. There is recital in affidavit that no accident caused by deponent or his son namely Nitin.
There is further recital in affidavit that deponent and Nitin were not driving car at the relevant time. There is further recital in affidavit that false petition filed against deponent and his son. RW1 has admitted that Nitin Kumar is his son. RW1 has admitted that he was owner of car having registration No. HP-19-5008. RW1 has admitted that Savitri has filed complaint against him before Director General of Police. RW1 has denied suggestion that his son Nitin was learning driving and he was helping him to drive ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 10 car. RW1 has stated that he has sold vehicle No. HP-19- 5008.
12. Following documentaries evidence adduced .
by parties. (1) Mark A is death certificate of deceased Balwant Singh. (2) Ext.PW3/A is post mortem report of deceased Balwant Singh. As per post mortem report deceased died due to head injury leading to severe damage. (3) Mark C is complaint filed by Savitri Devi to of Director General of Police. (4) Mark D is FIR No. 25 of 2008 dated 18.2.2008 registered under Sections 279, 304-A rt and 201 IPC.
13. Submission of learned Advocate appearing on behalf of appellant that it is proved by way of testimony of PW2 Bhajan Lal who is eye witness of accident that deceased had died due to rash and negligent driving of maruti car No. HP-19-5008 is accepted for the reasons hereinafter mentioned. Court has carefully perused affidavit filed by PW2 Bhajan Lal placed on record. There is recital in affidavit that Mohinder Pal and his son Nitin Kumar @ Ladi came in car No. HP-19-5008. There is further recital in affidavit that Ladi was driving the car and Mohinder Pal was associating him in driving car. There is ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 11 recital in affidavit that Ladi was driving the car in rash and negligent manner and struck car against deceased Balwant Singh who fell and died. Testimony of PW2 .
Bhajan Lal who is eye witness of accident is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve testimony of PW2 Bhajan Lal who was eye witness of accident. There is no evidence on record in order to prove that PW2 Bhajan Lal has hostile animus of against Mohinder Pal or Nitin @ Ladi at any point of time.
Testimony of PW2 Bhajan Lal is corroborated by post mortem rt report Ext.PW3/A wherein it is specifically mentioned that deceased had died due to head injury leading to severe damage.
14. Submission of learned Advocate appearing on behalf of appellant that appellant is widow of deceased and was dependent upon deceased at the time of his death and is entitled for compensation is accepted for reasons hereinafter mentioned. Age of deceased at the time of his death was 56 years. There is no positive direct evidence relating to income of deceased. No income certificate placed on record issued by competent authority of law. Hence Court assess the monthly income of ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 12 deceased as Rs.3000/- (Rupees three thousand) per month at the time of death. 1/3rd income of deceased is deducted for his personal expenses and dependency of .
appellant is assessed at Rs.2000/- (Rupees two thousand).
As age of deceased was 56 years multiplier of 8 is applied.
Following compensation is awarded:-
(i) Compensation for loss of dependency awarded(2000X12X8)=Rs.192000-00 of
(ii) Compensation for funeral expenses awarded = Rs. 10000-00
(iii) Compensation for loss of love and affection awarded:
rt = Rs. 10000-00
(iv) Loss of consortium awarded = Rs. 10000-00
(v) Compensation for medical
expenses awarded = NIL
(As no medical certificate placed on record) ____________________________ Total compensation awarded = Rs.222000-00 (Two lacs twenty two thousand)
15. See (2009)6 SCC 121 Sarla Verma & others vs. Delhi Transport Corporation and others. See AIR 2013 SCW 3120 Reshma Kumari and others vs. Madan Mohan and another.
Compensation is awarded against co-respondents Nos. 1 and 2. Compensation amount will be paid by Mohinder Pal co-respondent No. 1 on the concept of vicarious liability.
There is no evidence on record that ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 13 vehicle was insured with insurance company and no insurance certificate placed on record.
16. Submission of learned Advocate appearing on .
behalf of respondents that petition is not maintainable is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record by way of testimony of eye witness PW2 Bhajan Lal that deceased had died due to rash and negligent driving of maruti car of No. HP-19-5008. Testimony of PW2 Bhajan Lal is corroborated by post mortem report placed on record. It is well rt settled law that widow of deceased can file application for compensation under Motor Vehicles Act 1988. Hence it is held that present petition is maintainable under Motor Vehicles Act 1988.
17. Submission of learned Advocate appearing on behalf of respondents that petitioner has no cause of action against respondents is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that cause of action is proved by way of oral as well as documentaries evidence placed on record. After careful perusal of oral and documentaries evidence placed on record it is held that petitioner has cause of action to ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 14 file compensation petition under Motor Vehicles Act 1988 against co-respondents Nos. 1 and 2.
18. Submission of learned Advocate appearing on .
behalf of respondents that petition is bad for non-joinder of necessary parties is rejected being devoid of any force for reasons hereinafter mentioned. There is no evidence on record in order to prove that petitioner has not impleaded necessary party in present petition. It is held of that petitioner has impleaded all necessary parties in petition as required in accordance with law. Plea of co-
rt respondents Nos. 1 and 2 that petition is bad for non-
joinder of necessary party is defeated on concept of ipse dixit (An assertion made without proof).
19. Submission of learned Advocate appearing on behalf of respondents that in FIR number of vehicle not mentioned in FIR and on this ground appeal be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that FIR is not substantive piece of evidence but FIR is only a corroborative piece of evidence. It is held that in view of positive testimony of PW2 Bhajan Lal who is eye witness ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 15 of accident non-mentioning of vehicle number in FIR is not fatal in present petition.
20. Submission of learned Advocate appearing on .
behalf of co-respondent No. 1 that co-respondent No.1 has sold vehicle No. HP-19-5008 and is not legally liable to pay compensation is rejected being devoid of any force for the reasons hereinafter mentioned. Co-respondent No.1 did not adduce any evidence on record in order to prove that of he has sold vehicle to some other person at the time of accident. No affidavit relating to sale of vehicle No. HP-19- rt 5008 at the time of accident is placed on record as required under Sales of Goods Act. It is well settled law that person who is owner at the time of accident is liable to pay compensation amount relating to accident. Hence it is held that co-respondent No.1 is liable to pay compensation amount in accordance with law.
21. Submission of learned Advocate appearing on behalf of respondents that petitioner Smt. Savitri Devi is not eye witness of accident and on this ground appeal be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. In present case Savitri Devi has examined eye witness namely PW2 Bhajan Lal.
::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 16PW2 Bhajan Lal has specifically stated in positive manner that deceased had died due to rash and negligent driving of vehicle No. HP-19-5008. Respondents did not adduce .
any independent rebuttal evidence in order to rebut testimony of PW2 Bhajan Lal. In view of above stated facts point No.1 is answered in affirmative.
Point No. 2 (Relief)
22. In view of findings upon point No.1 appeal is of allowed. Award passed by learned Motor Accident Claims Tribunal Fast Track Court Una in MAC petition No. 17 of rt 2008 is set aside and compensation to the tune of Rs.222000/- (Rupees two lac twenty two thousand) is awarded in favour of appellant and against co-respondent No. 1 and 2. Co-respondent No. 1 will be liable to pay compensation amount on concept of vicarious liability.
Petition against co-respondent No. 3 Vijay Kumar is dismissed. In addition interest at the rate of 9% per annum from the date of petition till realisation is also awarded upon compensation amount. Memo of costs be drawn accordingly. File of learned MACT Fast Track Court Una be sent back forthwith along with certified copy of decision. FAO No. 121 of 2013 is disposed of. All pending ::: Downloaded on - 15/04/2017 21:46:20 :::HCHP 17 miscellaneous application(s) if any also stands disposed of.
.
(P.S.Rana),
December 19,2016(ms) Judge.
of
rt
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