Himachal Pradesh High CourtSh. Zahid Ali vs Sh. Shubham Chauhan & Others on 24 April, 2015Author:Mansoor Ahmad MirBench:Mansoor Ahmad MirIN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                                      FAO No.    67 of 2008
                                                                      a/w FAO No. 68 of 2008
                                                                      Reserved on: 17.04.2015




                                                                                                   .Decided on: 24.04.2015





    FAO No. 67 of 2008
    Sh. Zahid Ali                                                                           ...Appellant.

                                                     Versus





    Sh. Shubham Chauhan & others                                                            ...Respondents........................................................................................................................FAO No. 68 of 2008
    Sh. Zahid Ali
                                r                                                           ...Appellant.

                                                     Versus

    Sh. Aditya Chauhan & others                                                             ...Respondents.



    CoramThe Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
    Whether approved for reporting? Yes.For the appellant(s):                       Mr. Deepak Kaushal, Advocate.For the respondents:                        Respondent No. 1 ex-parte.Mr. Inder Sharma,                               Advocate,              for
                                                respondent No. 2.Mr. J.S. Bagga, Advocate, for respondent
                                                No. 3.::: Downloaded on - 15/04/2017 18:03:17 :::HCHP-: 2 :-Mansoor Ahmad Mir, Chief Justice

                Both these appeals are outcome of a vehicular accident




                                                                 .allegedly caused by the driver, namely Shri Shokat Ali, while driving

    Maruti Van, bearing registration No. HP-18-5045, rashly and





    negligently, on 03.02.2005 at about 7.00 p.m. near JBT School, Nahan,

    and hit a motorcycle, bearing registration No. HP-39 A-5987, which





    was being driven by Aditya Chauhan and Shubham Chauhan was the

    pillion rider; both of them sustained injuries, were taken to Zonal

    Hospital, Nahan, where they remained admitted.2.          Shubham Chauhan filed claim petition, i.e. MAC Petition

    No. 16-N/2 of 2005, titled as Shumbam Chauhan versus Zahid Ali &



    others, and claimed compensation to the tune of ` 4,00,000/-, as per

    the break-ups given in the claim petition.3.          Aditya Chauhan also filed claim petition, i.e. MAC





    Petition No. 15-N/2 of 2005, titled as Aditya Chauhan versus Zahid





    Ali & others, and claimed compensation to the tune of ` 2,00,000/-,

    as per the break-ups given in the claim petition.4.          The respondents, i.e. the driver, the owner-insured and

    the insurer contested the claim petitions on the grounds taken in

    the respective memo of objections.::: Downloaded on - 15/04/2017 18:03:17 :::HCHP-: 3 :-5.          Identical issues came to be framed in both the claim

    petitions. I deem it proper to reproduce the issues framed only in




                                                                    .MAC Petition No. 16-N/2 of 2005 herein:"1. Whether the petitioner sustained injuries due





                        to the rash and negligent driving of Maruti Van
                        No. HP-18-5045, being driven by Shokat Ali
                        (respondent No. 2), as alleged?            ...OPP2. If issue No. 1 is proved, to what amount of





                        compensation, the petitioner is entitled to and
                        from whom?                                ...OPP3. Whether this petition is not maintainable as
                        alleged in preliminary objection ?     ...OPR-34. Whether the driver of the offending Maruti
                        Van was not having a valid and effective driving
                        licence at the relevant time?          ...OPR-35. Whether this petition has been filed in collusion



                        with the owner and driver of the offending Maruti
                        Van?                                      ...OPR-36. Relief."6.          Parties led evidence.           The Motor Accident Claims





    Tribunal-II, Sirmaur District at Nahan, H.P. (for short "the





    Tribunal"), after scanning the evidence, oral as well as documentary,

    held that the claimants entitled to compensation and awarded

    compensation to the tune of ` 85,000/- in favour of injured-Shubham Chauhan and ` 12,000/- in favour of injured-Aditya

    Chauhan, with interest @ 7.5% per annum from the date of filing of::: Downloaded on - 15/04/2017 18:03:17 :::HCHP-: 4 :-the claim petitions till deposition of the amount, vide two separate

    awards, dated 02.11.2007 (for short "the impugned awards")..7.           The claimants, the insurer and the driver have not

    questioned the impugned awards on any count, thus, have attained





    finality so far it relate to them.8.           The owner-insured, Zahid Ali, has questioned both the





    impugned awards by the medium of these appeals on the ground

    that the Tribunal has fallen in an error in discharging the insurer

    and saddling him with liability.9.           This judgment shall govern both these appeals for the

    reason that these are outcome of the same accident and similar



    questions of facts and law are involved.10.          The points to be determined in these appeals are -(1) who was driving the offending vehicle, whether Shokat Ali or





    Shyam Singh Thapa? (2) who is to be saddled with liability?Issues No. 1 and 3 to 5:11.          The claimants have pleaded in para 21 of both the claim

    petitions that Shokat Ali was driving the offending vehicle. The

    owner-insured and the driver-Shokat Ali have admitted the said

    fact. But, the insurer, i.e. Oriental Insurance Company Limited has::: Downloaded on - 15/04/2017 18:03:17 :::HCHP-: 5 :-denied the said factum and has taken defence in its reply that one

    Shyam Singh Thapa was driving the offending vehicle, who was not




                                                                 .having a valid and effective driving licence. Further, it has pleaded

    in its reply that the claimants, in connivance with the owner-insured





    and the driver, have pleaded that Shokat Ali was the driver of the

    offending vehicles.12.         The claimants have led evidence to the effect that

    Shokat Ali was driving the offending vehicle despite the fact that

    the claimants were not required to lead evidence to prove the said

    factum and to discharge the onus.13.         Zahid Ali, the owner-insured of the offending vehicle



    has appeared in the witness box as RW-3 in both the claim petitions

    and has specifically stated that Shokat Ali was driving the vehicle at




    the time of the accident.14.         The insurer has examined Shri N.K. Barwal as RW-1, HC





    Ram Gopal as RW-2 and Shri Satender Singh as RW-4 in both the

    claim petitions.15.         RW-1, Shri N.K. Barwal is Record Keeper from General

    Record Room, Nahan, who has proved the Notice of Accusation,

    Ext. RW-1/A, which was framed against Shyam Singh in the criminal::: Downloaded on - 15/04/2017 18:03:17 :::HCHP-: 6 :-trial, which he was facing before the Chief Judicial Magistrate,

    Nahan, and stated that the charge was not proved and Shyam Singh




                                                                 .was acquitted.16.         RW-2, HC Ram Gopal, deposed that he has conducted





    the investigation in FIR No. 25 of 2005, registered at Police Station

    Nahan and submitted the final report in terms ofSection 173of the





    Code of Criminal Procedure (for short "CrPC") before the Court of

    competent jurisdiction.17.         RW-4, Shri Satender Singh, deposed that Shyam Singh

    was having the licence to drive a light transport vehicle, which was

    issued in his name under licence No. 2257/71 on 18.08.1971, was



    renewed from time to time, was not renewed from 10.12.2003 to

    07.02.2005 and was lastly renewed on 07.02.2005 which was valid up




    to 06.02.2008. He has also stated that penalty was imposed upon





    Shyam Singh for the delay which had crept-in in getting the licence





    renewed. Further stated that the licence was not cancelled and the

    licence was deemed to be valid in view of the renewal by the

    Licensing Authority.18.         It is not disputed that Shokat Ali was not having the

    licence. The claimants in both the claim petitions have pleaded and::: Downloaded on - 15/04/2017 18:03:18 :::HCHP-: 7 :-proved that Shokat Ali was driving the offending vehicle at the

    relevant point of time. At the cost of repetition, the owner-insured




                                                                    .and the driver-Shokat Ali have also admitted the said fact. Thus,

    how can it be said that the vehicle was being driven by Shyam Singh.19.         The aim and object of theMV Actis to provide speedy

    compensation in order to save the claimants from social evils and





    other sufferings.   It is not an adversarial litigation and strict

    pleadings and proof are not required while determining the claim

    petition.20.         My this view is fortified by the judgment rendered by

    the Apex Court in a case titled asDulcina Fernandes and others



    versus Joaquim Xavier Cruz and another, reported in (2013) 10

    Supreme Court Cases 646. It would be profitable to reproduce




    relevant portion of paras 8 and 9 of the judgment herein:"8.InUnited India Insurance Co. Ltd. v. Shila
                        Datta, (2011) 10 SCC 509, while considering the





                        nature of a claim petition under theMotor
                        Vehicles Act, 1988a 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:"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::: Downloaded on - 15/04/2017 18:03:18 :::HCHP-: 8 :-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 Dattacase, (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 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)"21.          The mystic maybes, technicalities, procedural wrangles

    and tangles have no role to play in determining the claim petitions.The claim petitions cannot be defeated on the said ground, that will

    amount to depriving the claimants from reaping the fruits of the

    said litigation.22.          My this view is fortified by the judgment of the Apex

    Court in a case titled as N.K.V. Bros. (P.)Ltd. versus M. Karumai::: Downloaded on - 15/04/2017 18:03:18 :::HCHP-: 9 :-Ammal and othersetc., reported in AIR 1980 Supreme Court

    1354.   It is apt to reproduce relevant portion of para 3 of the




                                                                   .judgment herein:"3. Road accidents are one of the top killers in





                       our country, specifically 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.
                     r 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 parcimony practised by tribunals. We
                       must remember that judicial tribunals are State
                       organs andArt. 41of 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::: Downloaded on - 15/04/2017 18:03:18 :::HCHP-: 10 :-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.Emphasis supplied"23.         The Jammu and Kashmir High Court in the case titled

    asOriental Insurance Co. versus Mst. Zarifa and others, reported





    in AIR 1995 Jammu and Kashmir 81, held that theMV Actis

    Social Welfare Legislation and the procedural technicalities cannot

    be allowed to defeat the purpose of the Act. It is profitable to


    reproduce para 20 of the judgment herein:"20. Before concluding, it is also observed that it
                          is a social welfare legislation under which the


                          compensation is provided by way of Award to the
                          people who sustain bodily injuries or get killed in
                          the vehicular accident. These people who sustain
                          injuries or whose kith and kins are killed, are




                          necessarily to be provided such relief in a short
                          span of time and the procedural technicalities





                          cannot be allowed to defeat the just purpose of
                          the Act, under which such compensation is to be
                          paid to such claimants."24.         It is also apt to reproduce relevant portion of para 12 of

    the judgment of the Apex Court in the case titled asSohan Lal Passi

    versus P. Sesh Reddy and others, reported in AIR 1996 Supreme

    Court 2627, herein:"12. ........................While interpreting the contract::: Downloaded on - 15/04/2017 18:03:18 :::HCHP-: 11 :-of insurance, the Tribunals and Courts have to be
                         conscious of the fact that right to claim
                         compensation by heirs and legal representatives




                                                                     .of the victims of the accident is not defeated on





                         technical grounds. Unless it is established on the
                         materials on record that it was the insured who
                         had wilfully violated the condition of the policy
                         by allowing a person not duly licensed to drive





                         the vehicle when the accident took place, the
                         insurer shall be deemed to be a judgment-debtor
                         in respect of the liability in view of sub-section
                         (1) ofSection 96of the Act. It need not be pointed
                         out that the whole concept of getting the vehicle





                         insured by an insurance company is to provide
                         an easy mode of getting compensation by the
                         claimants, otherwise in normal course they had
                         to pursue their claim against the owner from one
                      r  forum to the other and ultimately to execute the
                         order of the Accident Claims Tribunal for

                         realisation of such amount by sale of properties
                         of the owner of the vehicle. The procedure and
                         result of the execution of the decree is well
                         known."25.          This Court in a series of cases has laid down the same

    principle.26.          The factum of insurance is admitted, but the insurer





    has taken a defence that the owner-insured has committed breach





    by employing driver-Shyam Singh, who was not having a valid and

    effective driving licence.27.          The question is - was Shyam Singh a party before the

    Tribunal or had the insurer made any effort to lay a motion for his

    impleadment or for securing his presence as a witness, which it has::: Downloaded on - 15/04/2017 18:03:18 :::HCHP-: 12 :-not done. Thus, adverse inference is to be drawn against it.28.         While scanning the evidence of the insurer, i.e.




                                                                  .statements of RW-1, Shri N.K. Barwal, and RW-4, Shri Satender

    Singh, it is crystal clear that the said Shyam Singh was having the





    licence. RW-4 has stated that licence was issued, was renewed from

    time to time and penalty was also imposed upon him for renewal of





    the licence after delay and it was not cancelled. He has categorically

    stated that if the Licensing Authority renews the licence, it is

    deemed to be valid and was valid right from the year 1971 and was

    not cancelled.     Meaning thereby, the licence of the said Shyam

    Singh was valid.29.         The statement of RW-4 nowhere supports the case of

    the insurer to the effect that Shyam Singh was not having licence.Thus, the Tribunal has fallen in an error in holding that Shyam





    Singh was not having valid and effective driving licence, though, it





    is not the case of the claimants that Shyam Singh was the driver.30.         RW-1 has specifically stated that Shyam Singh was

    facing trial in the said FIR, but he was acquitted. Meaning thereby,

    it was not proved that Shyam Singh was driving the offending

    vehicle at the relevant point of time rashly and negligently.::: Downloaded on - 15/04/2017 18:03:18 :::HCHP-: 13 :-31.         I deem it proper to record herein that the findings

    recorded by the Criminal Court in acquittal cannot be a ground to




                                                                        .defeat the rights of the claimants. Even, if the driver is acquitted in

    the criminal proceedings, that may not be a ground for dismissal of





    the claim petitions.32.         My this view is fortified by the judgment rendered by





    the Apex Court in N.K.V. Bros's case (supra), wherein a bus hit an

    over-hanging high tension wire resulting in 26 casualties.r                                                              The

    driver earned acquittal in the criminal case on the score that the

    tragedy that happened was an act of God. The Apex Court held that

    the plea that the criminal case had ended in acquittal and that,



    therefore, the civil suit must follow suit, was rightly rejected by the

    Tribunal. It is apt to reproduce para 2 of the judgment herein:"2. The Facts: A stage carriage belonging to the





                           petitioner was on a trip when, after nightfall, the
                           bus hit an over-hanging high tension wire
                           resulting in 26 casualties of which 8 proved





                           instantaneously fatal. A criminal case ensued but
                           the accused-driver was acquitted on the score
                           that the tragedy that happened was an act of
                           God. The Accidents Claims Tribunal which tried
                           the claims for compensation under theMotor
                           Vehicles Act, came to the conclusion, affirmed by
                           the High Court, that, despite the screams of the
                           passengers about the dangerous overhanging
                           wire ahead, the rash driver sped towards the
                           lethal spot. Some lost their lives instantly; several::: Downloaded on - 15/04/2017 18:03:18 :::HCHP-: 14 :-lost their limbs likewise. The High Court, after
                       examining the materials, concluded:."We therefore sustain the finding of the





                              Tribunal that the accident had taken
                              place due to the rashness and
                              negligence of R. W. 1 (driver) and
                              consequently      the    appellant     is





                              vicariously liable to pay compensation
                              to the claimant."The plea that the criminal case had ended in
                       acquittal and that, therefore, the civil suit must





                       follow suit, was rejected and rightly. The
                       requirements of culpable rashness underSection
                       304A, I.P.C. is more drastic than negligence
                       sufficient under the law of tort to create liability.
                     r The quantum of compensation was moderately
                       fixed and although there was, perhaps, a case for

                       enhancement, the High Court dismissed the cross-
                       claims also. Being questions of fact, we are
                       obviously unwilling to re-open the holdings on
                       culpability and compensation."33.         It is also profitable to reproduce relevant portion of

    para 8 of the judgment rendered by the High Court of Karnataka in a




    case titled Vinobabai and others versus K.S.R.T.C. and another,





    reported in 1979 ACJ 282:" 8. ......................... Thus, the law is settled that
                       when the driver is convicted in a regular trial
                       before the Criminal Court, the fact that he is
                       convicted becomes admissible in evidence in a
                       civil proceeding and it becomes prima facie
                       evidence that the driver was culpably negligent
                       in causing the accident. The converse is not
                       true ; because the driver is acquitted in a
                       criminal case arising out of the accident, it is not
                       established even prima facie that the driver is not::: Downloaded on - 15/04/2017 18:03:18 :::HCHP-: 15 :-negligent, as a higher degree of culpability is
                        required to bring home an offence.".34.         Reliance is also placed on the judgment made by this





    Court inHimachal Road Transport Corporation and another

    versus Jarnail Singh and others, reported in Latest HLJ 2009 (HP)





    174, wherein it has been held that acquittal of the driver in the

    criminal trial will have no bearing on the findings to be recorded by




    the Motor Accident Claims Tribunal whether the driver was

    negligent or not in causing the accident. It is apt to reproduce


    relevant portion of para 15 of the judgment herein:"15.In view of the definitive lawlaid down bytheir Lordships of the Hon'ble Supreme Court and
                       the judgments cited hereinabove, it is now well


                       settled law that the acquittal of the driver in the
                       criminal trial will have no bearing on the findings
                       to be recorded by the Motor Accident Claims




                       Tribunal whether the driver was negligence or
                       not in causing the accident. ................"35.         The insurer has not led any evidence to prove that the

    claimants, driver and the owner-insured have hatched a conspiracy





    and were hand in glove to get compensation from the insurer.36.         It was for the insurer to plead and prove that the owner-insured has committed a willful breach of the terms of the insurance

    policy read with the mandate of Section 147 and 149 of the Motor::: Downloaded on - 15/04/2017 18:03:18 :::HCHP-: 16 :-Vehicles Act, 1988 (for short "the MV Act"), which it has failed to do

    so..37.            Having said so, issues No. 1 and 3 to 5 are decided

    against the insurer and in favour of the claimants.Issue No. 2:38.            Both the claimants, the victims of the vehicular





    accident, were admitted in hospital, had undergone sufferings, have

    lost their earnings for the said period and the injuries sustained by

    them have affected their career, but, unfortunately, both the

    claimants have not questioned the adequacy of the compensation.39.            It pains me to record herein that only a meager



    compensation amounting to ` 12,000/- has been awarded in favour

    of injured-Aditya Chauhan. Even liability of the insurer for "no fault




    liability' is ` 25,000/- and for this petty amount, injured-Aditya





    Chauhan has been deprived of from the year 2005 till today, is an





    eye-opener for the insurer, a mighty insurance company.40.            Accordingly, findings returned by the Tribunal on issue

    No. 2 are modified by providing that the insurer has to indemnify in

    terms of the insurance policy, i.e. contract. The insurer is directed

    to satisfy the awards in both the appeals and to deposit the same::: Downloaded on - 15/04/2017 18:03:18 :::HCHP-: 17 :-within four weeks alongwith interest in terms of the impugned

    awards till its deposition before the Registry..41.               Registry is directed to release the amount thereafter in

    favour of the claimants strictly as per the terms and conditions





    contained in the impugned awards after proper identification.42.               Having glance of the above discussions, the impugned





    awards are modified, as indicated hereinabove, and the appeals are

    disposed of accordingly.43.               Send down the record after placing copy of the

    judgment on each of the Tribunal's files.(Mansoor Ahmad Mir)


                                                      Chief Justice

    April 24, 2015
          ( rajni )::: Downloaded on - 15/04/2017 18:03:18 :::HCHP