Learned counsel for the appellant-insurer argued that the claim petition has abated in view of the death of the driver-cum-owner, who came to be deleted from the array of respondents vide order, dated 2nd December, 2006, and his legal representatives have not been brought on record. The argument is misconceived and devoid of any force for the following reasons: {Para 18}
21. These provisions of law provide that the mandate of Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") is not applicable in such cases. It is for the Tribunal to decide the cases, as early as possible.
22. The Apex Court and other High Courts have held that the Courts should not succumb to the procedural wrangles and tangles, hyper technicalities and mystic maybes and that should not be a ground to dismiss the claim petition and to defeat the rights of the claimants.
24. The High Court of Rajasthan in the judgment delivered in a case titled as Shiv Chandra and another versus Jasvinder Singh and others, reported in MANU/RH/0106/1991 : 1992 ACJ 747, has discussed the provisions of law and the Rules, which were applicable in the State of Rajasthan and held that the appeal had not abated on the failure to bring the legal representatives of the deceased owner on record.
25. The Delhi High Court in a recent judgment in the case titled as Oriental Insurance Co. Ltd. versus Biro Devi and others, reported in MANU/DE/0098/2014 : 2015 ACJ 340, has also discussed the provisions of Section 169 of the MV Act and the Rules applicable and held that the death of the owner of the vehicle is not a ground for evading the liability and it has no legal significance in the contractual relationship between the insurer and insured for the purpose of fastening the liability.
28. This Rule provides which of the provisions of the CPC are applicable. Order XXII of the CPC deals with abatement and the provisions of said Order have not been made applicable. Only on this count, the argument of the learned counsel for the appellant merits to be turned down.
29. Chapter XII of the MV Act is a complete code and provides the mechanism how to determine the claim petitions and appeals. Section 155 of the MV Act provides what is the effect of death of the insured on cause of action. It specifically provides that Section 306 of the Indian Succession Act, 1925 (39 of 1925) cannot affect the claim petitions or appeals if the insured has died after the happening of the event.
30. It is apt to reproduce Section 155 of the MV Act herein:
"155. Effect of death on certain causes of action. - Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (39 of 1925), the death of a person in whose favour a certificate of insurance had been insured, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer."
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
FAO No. 17 of 2008
Decided On: 20.03.2015
United India Insurance Company Limited Vs. Brijbala and Ors.
Hon'ble Judges/Coram:
Mansoor Ahmad Mir, C.J.
Author: Mansoor Ahmad Mir, C.J.
Citation: MANU/HP/0132/2015,2016 ACJ 1554 (HP).
1. This appeal is directed against the award, dated 29th September, 2007, made by the Motor Accident Claims Tribunal, Fast Track Court, Una, District Una, H.P. (hereinafter referred to as "the Tribunal") in M.A.C. Petition No. 89/01 RBT 31/05/2001, titled as Brijbala and others versus Jaswant Singh and another, whereby compensation to the tune of ` 6,70,000/- with interest @ 7.5% per annum from the date of filing of the claim petition till its realization came to be awarded in favour of the claimants (hereinafter referred to as "the impugned award), on the grounds taken in the memo of appeal.
2. It is necessary to give a flashback of the case, the womb of which has given birth to this case.
Brief facts:
3. Deceased-Krishan Kumar was a diploma holder and instructor in Art and Craft, became the victim of a vehicular accident on 14th June, 2001, at about 4.00 a.m. at Amb Chowk, which was caused by the driver, namely Shri Jaswant Singh, while driving truck, bearing registration No. OR-04-2973, rashly and negligently. The said cruel accident has compelled, rather constrained the claimants-respondents herein to file a claim petition for grant of compensation to the tune of ` 15,00,000/-, as per the break-ups given in the claim petition.
4. The claimants have specifically averred in the claim petition that they are the dependents of the deceased. Claimant No. 1 is the widow and claimants No. 2 to 5 are the minor daughters and son of the deceased.
5. The respondents appeared before the Tribunal. The owner-cum-driver (respondent No. 1 in the claim petition) died before he could have filed reply and his name was struck off in terms of order, dated 2nd December, 2006.
6. Appellant-insurer resisted the claim petition on the grounds taken in the memo of objections.
7. Following issues came to be framed by the Tribunal on 15th December, 2006:
"1. Whether deceased Krishan Kumar alias Bablu died because of rash and negligent driving of truck No. OR-04-2973 by Jaswant Singh on 14.6.2001 at about 4 a.m. at Amb as alleged? OPP
2. If issue No. 1 is proved in affirmative whether the petitioners are entitled to compensation, if so, how much and from whom? OPP
3. Whether the driver of vehicle No. OR-04-2973 was not holding any driving licence at the relevant time and in case he was holding the driving licence whether the same was not valid and effective, if so its effect? OPR
4. Whether the vehicle in question was not fit to ply on the road at the relevant time? OPR
5. Whether the petition is bad for non-joinder of owner and driver of vehicle in question? OPR
6. Relief."
8. The claimants have examined Dr. V.K. Raizada as PW-1, HC Avtar Singh as PW-2, Shri Kuldeep Singh as PW-4 and claimant No. 1, Smt. Brijbala, appeared in the witness box as PW-3 the claimants have also placed on record, copies of post mortem report, FIR, matriculation certificate, detail marks certificate of Arts & Crafts Teachers Training, Diploma of Technical Education as Exhibits PW-1/A, PW-2/A, PW-3/A, PW-3/C and PW-3/B, respectively.
9. Appellant-insurer has not led any evidence, however, has placed on record certified copy of statement of Shri Kuldeep Singh, copy of insurance policy and judgment delivered by Additional Chief Judicial Magistrate, Una, in criminal case titled as State versus Jaswant Singh as Exhibits R-I, R-II and RZ, respectively.
Issue No. 1:
10. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimants have proved that the driver, namely Shri Jaswant Singh, has driven the offending vehicle rashly and negligently on 14th June, 2001, at about 4.00 a.m. at Amb Chowk and the deceased, namely Shri Krishan Kumar, sustained injuries and succumbed to the injuries. The findings returned by the Tribunal on issue No. 1 are not in dispute, thus, are upheld.
11. Before I deal with issue No. 2, I deem it proper to determine issues No. 3 to 5.
Issues No. 3 to 5:
12. The appellant-insurer had to lead evidence to prove all these issues, which it has failed to do so, thus, has failed to discharge the onus and the Tribunal has rightly decided issues No. 3 to 5 against the insurer-appellant.
Issue No. 2:
13. Claimant No. 1, while appearing in the witness box as PW-3, has stated that her husband was earning ` 12,000/- per month, however, in her cross-examination, has stated that the deceased was employed in a private school at Sirmaur and his monthly salary was ` 5,000/- per month.
14. The Tribunal, taking a clue from the statement of the widow of the deceased that the income of the deceased was ` 5,000/- per month, deducted one third towards his personal expenses and held that the claimants have lost source of dependency to the tune of ` 40,000/- per annum. The multiplier of '16' was applied and the claimants were held entitled to compensation to the tune of ` 6,40,000/-. The Tribunal has also awarded ` 10,000/- under the head 'conventional charges' and ` 20,000/- as consortium to wife.
15. The claimants have not questioned the adequacy of compensation, despite the fact that the amount awarded is not in accordance with the law laid down by the Apex Court Sarla Verma (Smt) and others versus Delhi Transport Corporation and another, reported in MANU/SC/0606/2009 : (2009) 6 Supreme Court Cases 121, which was upheld by a larger Bench of the Apex Court in Reshma Kumari & Ors. versus Madan Mohan & Anr., reported in MANU/SC/0287/2013 : 2013 AIR SCW 3120. Learned counsel for the appellant-insurer has not been able to marshal out and thrash out that the compensation awarded is excessive, but, at the cost of repetition, it is meager and is reluctantly upheld.
16. Now, the question is - who should be saddled with liability?
17. The factum of insurance is not in dispute and the appellant-insurer has failed to discharge the onus, thus, has failed to prove that the owner-insured has committed any breach. Thus, the appellant-insurer came to be rightly saddled with liability.
18. Learned counsel for the appellant-insurer argued that the claim petition has abated in view of the death of the driver-cum-owner, who came to be deleted from the array of respondents vide order, dated 2nd December, 2006, and his legal representatives have not been brought on record. The argument is misconceived and devoid of any force for the following reasons:
19. It is beaten law of land that the aim and object of awarding compensation is just to ameliorate the sufferings of the claimants and the Courts/Tribunals have to decide the matter as early as possible, that too, summarily in terms of the mandate of Chapter XII of the Motor Vehicles Act, 1988 (hereinafter referred to as "the MV Act").
20. Sections 169 and 176 (b) of the MV Act read as under:
"169. Procedure and powers of Claims Tribunals:- (1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material object and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal? may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry.
.........................
176. Power of State Government to make rules:--
A State Government may make rules for the purpose of carrying into effect the provisions of sections 165 to 174, and in particular, such rules may provide for all or any of the following matters, namely:--
(a)................
(b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;
................................ "
21. These provisions of law provide that the mandate of Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") is not applicable in such cases. It is for the Tribunal to decide the cases, as early as possible.
22. The Apex Court and other High Courts have held that the Courts should not succumb to the procedural wrangles and tangles, hyper technicalities and mystic maybes and that should not be a ground to dismiss the claim petition and to defeat the rights of the claimants.
23. The same principle has been laid down by the Apex Court in the cases titled as N.K.V. Bros. (P.) Ltd. versus M. Karumai Ammal and others etc., reported in MANU/SC/0321/1980 : AIR 1980 Supreme Court 1354; Sohan Lal Passi versus P. Sesh Reddy and others, reported in MANU/SC/0662/1996 : AIR 1996 Supreme Court 2627; and Dulcina Fernandes and others v. Joaquim Xavier Cruz and another, reported in MANU/SC/1028/2013 : (2013) 10 Supreme Court Cases 646, and by this Court in FAO No. 339 & 340 of 2008, titled as NIC versus Parwati & others; FAO No. 172 of 2006, titled as Oriental Insurance Company versus Shakuntla Devi & others; FAO No. 396 of 2012, titled as Asha & others versus Moti Ram & others and FAO No. 4248 of 2013, titled as Magni Devi & others versus Suneel Kumar & others, decided on 13.03.2015.
24. The High Court of Rajasthan in the judgment delivered in a case titled as Shiv Chandra and another versus Jasvinder Singh and others, reported in MANU/RH/0106/1991 : 1992 ACJ 747, has discussed the provisions of law and the Rules, which were applicable in the State of Rajasthan and held that the appeal had not abated on the failure to bring the legal representatives of the deceased owner on record.
25. The Delhi High Court in a recent judgment in the case titled as Oriental Insurance Co. Ltd. versus Biro Devi and others, reported in MANU/DE/0098/2014 : 2015 ACJ 340, has also discussed the provisions of Section 169 of the MV Act and the Rules applicable and held that the death of the owner of the vehicle is not a ground for evading the liability and it has no legal significance in the contractual relationship between the insurer and insured for the purpose of fastening the liability.
26. The States have framed Rules in terms of Sections 169 and 176 (b) of the MV Act and some of the provisions of CPC have been made applicable in the same fashion. The State of Himachal Pradesh has also framed the Himachal Pradesh Motor Vehicle Rules, 1999 (hereinafter referred to as "the Rules").
27. It is apt to reproduce Rule 232 of the Rules herein:
"232. The Code of Civil Procedure to apply in certain cases:--
The following provisions of the First Schedule to the Code of Civil Procedure, 1908, shall so far as may be, apply to proceedings before the Claims Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX; Order XIII; Rule 3 to 10; Order XVI, Rules 2 to 21; Order XVII; Order XXI and Order XXIII, Rules 1 to 3."
28. This Rule provides which of the provisions of the CPC are applicable. Order XXII of the CPC deals with abatement and the provisions of said Order have not been made applicable. Only on this count, the argument of the learned counsel for the appellant merits to be turned down.
29. Chapter XII of the MV Act is a complete code and provides the mechanism how to determine the claim petitions and appeals. Section 155 of the MV Act provides what is the effect of death of the insured on cause of action. It specifically provides that Section 306 of the Indian Succession Act, 1925 (39 of 1925) cannot affect the claim petitions or appeals if the insured has died after the happening of the event.
30. It is apt to reproduce Section 155 of the MV Act herein:
"155. Effect of death on certain causes of action. - Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (39 of 1925), the death of a person in whose favour a certificate of insurance had been insured, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer."
31. Learned counsel for the appellant has relied upon the judgment of the Kerala High Court in the case titled as New India Assurance Co. Ltd. versus Parameswaran and others, reported in MANU/KE/0361/2005 : 2006 ACJ 1176, is not applicable to the instant case for the following reason:
32. Hon'ble Kerala High Court has not made discussion about Section 155 of the MV Act, which provides that cause of action survives.
33. Having said so, the arguments advanced by the learned counsel for the appellant are devoid of any force.
34. Even otherwise, the purpose of granting of compensation cannot be defeated on the said ground for the reason that the Court/Tribunal has to ascertain what was the object behind the legislation and what were the reasons for making such legislation. The aim and object of granting compensation is for the benefit of the persons/victims, from whom the source of dependency has been taken away and who have lost their source of income and are deprived of the love & affection and hope of future because of the death of their kith and kin.
35. In order to ensure that third party/victim of vehicular accident receives compensation and his/her rights are not defeated, the MV Act has undergone a sea change and Section 146 was introduced, which reads as under:
"146. Necessity for insurance against third party risk. - (1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter:
Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991).
Explanation. - A person driving a motor vehicle merely as a paid employee, while there is in force in relation t the use of the vehicle no such policy as is required by this sub-section, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force.
(2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise.
(3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any vehicle owned by any of the following authorities, namely:--
(a) the Central Government or a State Government, if the vehicle is used for Government purposes connected with any commercial enterprise;
(b) any local authority;
(c) any State transport undertaking:
Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability arising out of the use of any vehicle of that authority which that authority or any person in its employment may incur to third parties.
Explanation. - For the purposes of this subsection, "appropriate Government" means the Central Government or a State Government, as the case may be, and -
(i) in relation to any corporation or company owned by the Central Government or any State Government, means the Central Government or that State Government;
(ii) in relation to any corporation or company owned by the Central Government and one or more State Governments, means the Central Government;
(iii) in relation to any other State transport undertaking or any local authority, means that Government which has control over that undertaking or authority."
36. The Apex Court has also discussed this aspect in a case titled as S. Iyyapan versus United India Insurance Company Limited and another, reported in MANU/SC/0632/2013 : (2013) 7 Supreme Court Cases 62. It is apt to reproduce para 16 of the judgment herein:
"16. The heading "Insurance of Motor Vehicles against Third Party Risks" given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force.".
37. Viewed thus, the rights of victims of vehicular accidents cannot be defeated on flimsy grounds.
38. It pains me to record herein that the claimants were constrained to file the claim petition because of the vehicular accident and for no fault of theirs, entered into the litigation right from 21st September, 2001. The claim petition was to be determined summarily within the shortest possible time in terms of the mandate of Chapter XII of the MV Act and the law laid down by the Apex Court and this Court, but came to be determined by the Tribunal after six years. However, the claimants have not been able to reap the fruits of the litigation till today for the reason that the insurer has questioned the impugned award by the medium of this appeal, which is on the Board of this Court for the last more than seven years. The minutes of the files are self-speaking.
39. Having said so, the appeal deserves to be dismissed and the impugned award is to be upheld. Accordingly, the appeal is dismissed and the impugned award is upheld.
40. Claimants No. 2 to 5 have attained majority. Hence, the guardian is discharged. Registry to make necessary entry in the cause title.
41. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award after proper identification.
42. Send down the record after placing copy of the judgment on Tribunal's file.
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