Biason Devi and Others vs Kartar Chand and Others

Mansoor Ahmad Mir, C.J.�The claimants have invoked the jurisdiction of this Court by the medium of this appeal under Section 173 of the Motor Vehicles Act, hereinafter referred to as "the Act" for short, for setting aside the award dated 16.1.2013, passed by the Motor Accident Claims Tribunal, Hamirpur, H.P., for short "The Tribunal" in MAC Petition No. 63 of 2010 titled Smt. Biasan Devi and Others v. Shri Kartar Chand and Others, whereby the claim petition of the claimants came to be dismissed, hereinafter referred to as "the impugned award", for short, on the grounds taken in the memo of appeal. The claimants/appellants being the victims of a vehicular accident had filed claim petition before the Tribunal below for the grant of compensation to the tune of Rs. 10 lacs with interest @ Rs. 12% per annum, as per the break-ups given in the claim petition.

Brief Facts:

It is averred in the claim petition that the deceased Rattan Chand was an ex-serviceman, drawing Rs. 10,000 per month as pension, was also employed as clerk in Dev Bhumi Tralla Union, Hamirpur, drawing a salary of Rs. 4,000 per month, became victim of a vehicular accident on 1.6.2008 while going to his home in a vehicle (Tralla) bearing registration No. HP-22-6618, being driven by respondent No. 2 Rakesh Khan in a rash and negligent manner, sustained injuries and succumbed to the injuries. FIR No. 174 of 2008 came to be registered in Police Station, Hamipur under Sections 279 and 304A, Indian Penal Code, for short "IPC".

Respondents resisted the clam petition by filing replies.

The following issues came to be framed by the Tribunal on 19.8.2011:

(i) Whether Rattan Chand died in accident, which had taken place due to rash and negligent driving of vehicle No. HP-22-6618 by its driver Rakesh Khan, as alleged?

--OPP

(ii) If issue No. 1 is proved in affirmative, whether the petitioners are entitled for compensation, if so, to what amount and from whom?

--OPP

(iii) Whether the petition is not maintainable?

--OPRs

(iv) Whether the petitioners have no cause of action and locus standi to file the present petition?

--OPRs

(v) Whether the driver of the vehicle No. HP-22-6618 was not holding a valid and effective driving licence at the time of accident?

--OPR3

(vi) Whether the vehicle in question was being driven in contravention of terms and conditions of the Insurance Policy?

--OPR3

(vii) Relief.

The claimants examined P.W. 1 Dr. K.C. Chopra, PW 2 H.C. Sunil Kumar, PW 3 Baksh i Ram, claimant No. 1 Smt. Biasan Devi herself appeared as witness in the witness-box as PW 4, PW 5 Surender Kumar and PW 6 Khem Chand. The claimants have also placed on record documents, i.e., post-mortem report, FIR, salary certificate, Pariwar Register, Pension Payment Order, exhibited as Ext. P.W. 1/A to Ext. PW3/A, Ext. PW5/A and Ext. PW6/A respectively.

The respondents have also placed on record copy of insurance policy, driving licence and copy of judgment dated 9.8.2010 passed in criminal case No. 156-I of 2008/146-II of 2008 titled State of H.P. v. Rakesh Khan exhibited as Ext. R-1, Ext. RW1/A and Ext. RX, respectively.

The Tribunal held that the claimants have failed to prove that driver has driven the vehicle rashly and negligently and decided issue No. 1 against the claimants/appellants and in favour of the respondents and dismissed the claim petition.

The finding returned by the Tribunal on issue No. 1 is trash one and it appears that perhaps, the Presiding Officer has not gone through the mandate of Section 168 of the Act read with the Rules, even has ignored the aim and object for the grant of compensation and what is the standard of proof. However less said is the better.

Brief resume of the evidence on the record

P.W. 1 Dr. K.C. Chopra deposed that he has conducted the post-mortem Ext. PW 1/A of deceased Rattan Chand and opined that the death was outcome of the road accident.

PW 2 Head Constable Sunil Kumar deposed that he has conducted the investigation of the FIR No. 174 of 2008 Ext. PW2/A and during the investigation he found that accused driver-respondent No. 2 herein was, prima facie, involved in the commission of the offence punishable under Sections 279 and 304A, of the IPC and presented the challan against him before the Chief Judicial Magistrate, Hamirpur, H.P. On conclusion of the trial, the said Court acquitted the accused-respondent No. 2 herein.

PW 3 Bakshi Ram deposed that deceased Rattan Chand was working as Clerk in the Tralla Union and was drawing salary to the tune of Rs. 4000 per month and proved the contents of the salary certificate Ext. PW3/A. He further stated that on the unfortunate date, i.e., on the day of the accident, the deceased was going back to his home after performing duties, met with an accident which was caused by the driver of the offending vehicle (Tralla) mentioned supra. The family members of the deceased were dependent upon him and they have lost the source of dependency.

One of the claimants Biasan Devi also appeared as witness in the witness-box as PW 4, as stated above and deposed that she is the widow of her husband who was earning Rs. 10,000 as pension and drawing Rs. 4000 as salary from the Tralla Union and was also performing other vocations, met with an accident when he was coming back to his home in offending vehicle (Tralla). PW 5 Surender Kumar proved the copy of Pariwar Register Ext. PW5/A and PW6 Khem Chand proved the contents of Pension Payment Order Ext. PW6/A.

The respondents have not led any evidence in rebuttal except statement of driver Rakesh Khan who appeared as RW1 in the witness-box. Thus, the evidence led by the claimants have remained unrebutted.

While examining the evidence, oral as well as documentary, it is crystal clear that the claimants have proved that the driver has driven the offending vehicle rashly and negligently and caused the accident in which deceased lost his life. Thus, there was sufficient evidence on record that the claimants are victims of a vehicular accident which was caused by the driver of the vehicle, i.e., respondent No. 2 herein while driving the vehicle in a rash and negligent manner. The Tribunal has fallen in error in discussing and appreciating the evidence as if he was discussing and appreciating the evidence in a criminal case, which is to be proved beyond reasonable doubt. The Apex Court in case titled N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and Others, , held that the acquittal cannot be a ground for dismissal of a claim petition. In a criminal case, the case is to be proved beyond reasonable doubt, while determining the claim petition; it is to be proved by preponderance of probabilities and strict proof of pleadings is not required. It is apt to reproduce para 3 of the said judgment herein:

"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 case, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents 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 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 parsimony practised by Tribunals. We must remember that judicial Tribunals are State organs and Article 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."

The Apex Court in Dulcina Fernandes and Others Vs. Joaquim Xavier Cruz and Another, , held that rules of pleadings are not strictly applicable in the claim petitions. It is apt to reproduce relevant portion of para-8 of the aforesaid judgment herein:

"8. In United India Insurance Company Limited v. Shila Datta & Ors., 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 propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow--(SCC p. 518, para 10)

''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.''

xxx xxx xxx xxx"

It is also apt to mention herein that the Tribunal has also lost sight of the replies filed by the owner, driver and insurer. The driver and owner have admitted paras 8 and 9 of the claim petition. Thus, admitted the accident, which took place on 1.6.2008 within the jurisdiction of Police Station, Hamirpur and FIR was lodged. They have admitted para 24 of the claim petition, but has stated that the deceased died due to his own fault. Thus, it is admitted by the driver and owner that deceased died in the road accident in use of the aforesaid motor vehicle.

The insurer has also pleaded and admitted in para 2 of the reply that deceased died while he tried to board himself in the Tralla from the back side of the Tralla and he fell down on the road as the Tralla was going in normal speed on left side. It is apt to reproduce para 2 of the reply filed by insurer herein:

"2. That no cause of action accrued to the petitioners against the answering respondent to file the petition because the deceased Rattan Chand was a gratuitous/unauthorized passenger whose risk is not covered under the Insurance Policy. Moreover, the deceased Rattan Chand died due to his own act of negligence while he tried to board himself in the Tralla from the back side of the tralla and the deceased fell down on the road as the Tralla was going in normal speed on left side. Thus, the accident has occurred due to rash and negligent act of the deceased Rattan Chand."

It is beaten law of the land that risk lies on the driver and principle of res ipsa loquitur is attracted.

Having said so, it is held that claimants have proved by leading oral as well as documentary evidence that driver has driven the offending vehicle in a rash and negligent manner and caused the accident.

The onus to prove issue Nos. 3 to 6 was on the respondents but they have not led any evidence, thus, are to be decided against the respondents.

The learned Counsel for the respondents have not addressed any argument, in order to show how the claim petition was not maintainable. Thus, Issue No. 3 is decided against the respondents and in favour of the claimants.

Respondents have also failed to prove that claimants had no locus standi or cause of action to file the claim petition. However, as discussed hereinabove, the claimants being victims of a vehicular accident have rightly invoked the jurisdiction of the Tribunal and had locus standi to file the claim petition. Accordingly, Issue No. 4 is decided in favour of the claimants and against the respondents.

It was for the insurer to plead and prove that the driver of offending vehicle was not holding a valid and effective driving licence at the time of the accident and the vehicle was being driven in violation of the terms and conditions of the insurance policy. The insurer has not led any evidence. Thus, Issue Nos. 5 and 6 are to be decided in favour of the claimants and against the respondents. Therefore, issue Nos. 5 and 6 are decided accordingly.

The factum of insurance policy is not disputed. Mr. B.M. Chauhan, learned Counsel for respondent No. 3, stated that deceased was a gratuitous passenger, thus owner has committed willful breach and insurer is not liable. The argument is misconceived for the simple reason that insurer has pleaded in para 2, quoted supra that deceased tried to board the Tralla and died. It was for the insurer to plead and prove that deceased was a gratuitous passenger and owner has committed willful breach. As discussed hereinabove, it has failed to do so. Thus, the insurer is to be saddled with the liability.

The claimants have pleaded and proved that deceased was receiving pension to the tune of Rs. 10,000 per month and drawing Rs. 4000 as salary from Tralla Union, at the time of the accident and have lost source of dependency. Keeping in view the age of the deceased read with other factors, I deem it proper to hold that claimants have, at least, lost source of dependency to the tune of Rs. 8,000 per month after deducting 1/3rd as his pocket expenses.

The claimants have given the age of the deceased as ''50'' years in the claim petition, which is not denied by the respondents. Claimant No. 1 Biasan Devi herself appeared as witness and deposed that age of the deceased was 50 years, which is supported by the statement of doctor, who has conducted the post-mortem and recorded the age of the deceased as ''50'' years in Ext. P.W. 1/A. Therefore, keeping in view the Schedule appended to the Act read with Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , multiplier of ''9'' is just and appropriate multiplier.

Accordingly, it is held that the claimants are entitled to the compensation to the tune of Rs. 8,000 x 12 x 9 total of which comes to Rs. 8,64,000 with interest @ 6% per annum from the date of filing the claim petition till its realization.

As a corollary, the insurer-respondent No. 3 is held liable to pay the compensation. Respondent No. 3 is directed to deposit the aforementioned amount along with interest, within six weeks from today in the Registry of this Court and on deposit, the same shall be released to the claimants in equal shares. The impugned award is set aside. The claim petition is allowed, as indicated above. The appeal is accordingly allowed. Send down the record, forthwith.