Himachal Pradesh High Court
Radha Devi vs Shri Ankit Chauhan on 12 August, 2021
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 12th DAY OF AUGUST, 2021
BEFORE
.
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
FIRST APPEAL FROM ORDER No.450 of 2011
Between:-
RADHA DEVI W/O SHRI AMAR DASS
RESIDENT OF VILLAGE CHALAOG,
POST OFFICE BALDEYAN,
TEHSIL AND DISTRICT SHIMLA, H.P. ......APPELLANT
(BY MS. ANUBHUTI SHARMA, ADVOCATE)
AND
1. SHRI ANKIT CHAUHAN,
S/O LATE SHRI PADAM CHAUHAN,
OWNER AND DRIVER OF MARUTI CAR NO.HP-52-0872
R/O CHAUHAN NIWAS, MEHALI,
P.O. KASUMPTI, TEHSIL AND DISTRICT SHIMLA, H.P.
2. BAJAJ ALLIANZ GENERAL INSURANCE COMPANY
LIMITED SHIMLA,
THROUGH ITS BRANCH MANAGER, SHIMLA.
......RESPONDENTS
(BY SH. D.S. KAITH, ADVOCATE, FOR R-1.
SH. AMAN SOOD, ADVOCATE, FOR R-2)
1
WHETHER APPROVED FOR REPORTING? Yes.
This appeal coming on for orders this day, the Court
passed the following :
JUDGMENT
The instant appeal, under Section 173 of the Motor
Vehicles Act, 1988, is maintained by the appellant/petitioner (hereinafter
referred to as the 'petitioner') for quashing and setting aside the
impugned award, dated 14.1.2011, passed by the learned Motor Accident
Whether reporters of Local Papers may be allowed to see the judgment ? Yes.
Claims Tribunal, (Fast Track Court), Shimla, in M.A.C No.4-S/2 of 2008
and to allow the claim petition.
2. Brief facts giving rise to the present appeal are that on
.
27.12.2006, around 3:00 p.m, petitioner was going to Ayurvedic Hospital,
Chhota Shimla, when a car bearing registration No.HP-52-0872, came
from the opposite side in a rash and negligent manner so as to endanger
human life and personal safety of others hit the petitioner, as a result of
which, the petitioner suffered simple injuries. The accident had taken
place due to the rash and negligent driving of respondent No.1. The
petitioner was treated upon in a hospital and expenses in the sum of
`40,000/-, were incurred and have suffered 10% permanent disability.
Thereafter, the petitioner claimed compensation by way of petition before
the learned Motor Accident Claims Tribunal, (Fast Track Court), Shimla.
3. Respondent No.1 contested the petition by filing a reply
whereby, preliminary objections of maintainability was taken. On merits,
respondent No.1 denied that the vehicle in question was involved in the
accident and if at all, learned Tribunal comes to the conclusion that the
petitioner is entitled for compensation, in that eventuality, his vehicle was
duly insured with respondent No.2-Insurance Company and the driver
was having valid and effective driving licence to ply it. Respondent No.2
has also filed its reply and contested the petition mainly on the ground
that the petition is not maintainable, since no accident took place with
this vehicle. Further, respondent No.1 was not having valid and effective
driving licence to ply the vehicle. There was wilfull breach of the terms of
the insurance policy and Insurance Company has no liability to indemnify
the insurer and pay compensation to her.
4. The learned Tribunal below framed following issues on
3.10.2008 :
"1. Whether the petitioner sustained the injuries due
.
to the rash and negligent driving of vehicle No.HP-
52-0872 by respondent Sh. Ankit Chauhan, as
alleged? OPP.
2. If issue No.1 is proved in affirmative, whether the
petitioner is entitled to the compensation as
claimed. If so, its quantum and from whom? OP
Parties.
3. Whether the petition is not maintainable in the
present form ? OPR.
4. Whether the petitioner has a cause of action? OPP.
5. Whether the vehicle was being driven in
violation of the terms and conditions of the
insurance policy, if so, its effect ? OPR-2.
6. Whether Sh. Ankit Chauhan was not holding and
possessing a valid and effective driving licence to
drive the vehicle, as alleged? If so, its effect ?OPR-2.
7. Relief."
5. After deciding Issue Nos.1 to 4 against the petitioner,
Issue Nos.5 and 6 being redundant, the learned tribunal below dismissed
the petition.
6. Ms. Anubhuti Sharma, learned counsel for the appellant
has argued that the petitioner has proved on record the fact that she was
hit by vehicle bearing registration No.HP-52A-0872 and submits that in
MACT petition, strict Rules of evidence are not applicable, it is probability
of evidence, which has to be taken into consideration. The petitioner has
suffered 10% permanent disability in the accident. She has further
submitted that in these circumstances the learned Court below should
have allowed the petition and awarded her compensation on account of
10% permanent disability.
7. Mr. D.S. Kaith, learned counsel for respondent No.1,
has argued that the vehicle involved in the accident was not the vehicle of
respondent No.1, it was some other vehicle. The petitioner has rightly
.
stated in the learned Court below. Further, the evidence to that effect
has also the same version by way of the statement of Police officer, who
recorded FIR and as the vehicle was different vehicle, no inference with
the impugned award is required.
8. On the other hand, Mr. Aman Sood, learned counsel for
respondent No.2-Insurance Company has vehemently argued that the
vehicle which was insured, the same was not involved in the accident, so
respondent No.2, is not liable to pay compensation, as it was some other
vehicle, which has hit the petitioner and the petitioner has rightly stated
so in FIR and before the learned tribunal below. He has argued that the
instant appeal deserves dismissal with heavy costs.
9. In rebuttal, learned counsel for the appellant has
argued that in criminal proceedings the cases are required to be proved
beyond the shadow of reasonable doubt, in civil cases, there is probability
of evidence and in MACT petition, no strict proof is required and prays
that the instant appeal may be allowed.
10. To appreciate the arguments of learned counsel for the
parties, I have gone through the entire records of the case carefully.
11. In order to prove its case, PW-1, HC Yog Raj, has
proved on record FIR, Ex.PW1/A. PW-2, Dr. Ramesh Chauhan, has
issued MLC, which is Ex.PW2/A. PW-3, petitioner herself has proved on
record copy of pariwar register Ex.PW3/B, prescription slips and bills
Ex.P-1 to Ex.P-26, whereas in order to rebut the case of the petitioner,
respondent No.1 has stepped into the witness box, as RW-1 and
produced the copy of judgment passed by the learned Court below, vide
which, respondent No.1, was acquitted mainly on the ground that identity
of the offending vehicle and its driver could not be established. He has
.
also proved on record driving licence Ex.RW1/B, copy of insurance policy
Ex.RW1/C, Ex.RW1/D and copy of Registration Certificate Ex.RW1/E.
12. At this stage, taking into consideration the entire
evidence, which has come on record, it is not the case of respondent No.1
that his vehicle bearing registration No.HP-52A-0872, was not there and
on that day, it was not present in Shimla, when the accident had taken
place and the petitioner-injured suffered 10% permanent disability. It is
not expected from injured that she noted each and every digit of
registration number of the vehicle, she has only noted the last and first
number of the vehicle and could not note the figure 'A' i.e. HP-52A-0872.
In these circumstances, this Court cannot held that the said vehicle was
not involved in the accident, if such a hyper technical view is taken, the
very purpose of an act, which is a legislation for the benefit of a injured
person, who suffered injuries in the accident would be defeated. Even
otherwise also, the basic rule in criminal cases is that the prosecution is
required to prove the case beyond all reasonable doubt, whereas in civil
cases, it is only the probability of evidence and in MACT cases, the Court
should not be, so technical and if something is on record, to connect the
vehicle of respondent No.1 that evidence should be taken into
consideration, in a positive note. In these circumstances, this Court after
going through the evidence of witnesses including the petitioner comes to
the conclusion that it is the vehicle of respondent No.1, which was insured
by respondent No.2-Insurance Company that has met with an accident
and caused injury to the petitioner.
13. The salary of the petitioner, who was working with
Mr. R.K. Anand, Advocate, as Domestic Help, can be taken around
`5000/- per month, petitioner has suffered 10% permanent disability and
.
at the time of accident, her age was 36 years. So, the loss of income
because of 10% permanent disability is taken as `500/- per month that is
10% of `5000/- and for one year `6000/-, the multiplier of 15 is required
to be applied i.e. 15 (500 x 12 x 15=`90,000/-). So, respondent No.2-
Insurance Company is held liable to pay compensation to the tune of
`90,000/-, for disability. The petitioner is also entitled for medical
expenses to the tune of `10,000/-, including pain and suffering and no
employment for days of treatment. This way petitioner is entitled for
total compensation of `1,00,000/- (rupees one lac only) with 7% interest.
14. Further, at the time of accident, the vehicle was being
plied in terms of the insurance policy, so respondent No.2-Insurance
Company is liable to pay compensation. In these circumstances,
respondent No.2-Insurance Company is liable to pay compensation to the
petitioner, which comes to `1,00,000/- (rupees one lac only) alongwith
7% interest, as on the date of accident, there was a valid insurance policy
and the vehicle was being driven as per the terms of insurance policy
including the fact that the driver was having a valid driving licence at the
time of accident.
15. In view of the above, the instant appeal is allowed
and respondent No.2-Insurance Company is held liable to pay
compensation to the petitioner in the sum of `1,00,000/-(rupees one lac
only) alongwith interest at the rate of 7% per annum from the date of
petition till the payment. Keeping in view of the peculiar facts and
circumstances of the case, parties are left to bear their own costs.
Pending application(s), if any, also stand(s) disposed of.
.
(Chander Bhusan Barowalia)
th
12 August, 2021. Judge
(CS)
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