JUDGMENT 1. - "Campose" 'Morphia" "Opium" Medical tranquilisers, for forgetting pain & suffering of injuries substitued by ' Fate & Desting-Bhagya & Karma "Mantras" by Judicial Officer for "forget & forgive" accident offenders-whether consistent with "Socialist-Preamble & Directive Principles? 2. Are we here to recite, chat and preach sermons and Mantra only and then leave the judgment to fate or do judicial determination as 'watch dogs' of the constitution'' 3. A lion tamer or a Zoo Master would easily tell us how "tranquilisers" gun make a lion lie like sheep of calf. "Bhagya" & "Karma" tranquilisers reduce a 'citizen', to a 'subject' only. "Purvajanma Karma" gun shot compells one to forget his rights & forgive offenders and tolerate injustice. 4. The socialist jurisprudence, which inevitably follows from our preamble and directive principle, warrants that Courts should not he reduced to instruments of exploitation and oppression. The aim of jurisprudence is to enable the people to achieve the goal "To each according to his need, from each according to his ability"' As the Chief Justice of India Shri R. S. Pathak, suggested, "Lawyers should undertake programmes to develop legal literacy to take justice to the poor and underprivileged." Millions in this country are not even aware of their rights under the Constitution. 5. It is a pity that majority of the people are not in a position to take advantage of the existing laws when litigation becomes a long drawn-out affair Nor do the Directive Principles spelt out in the Constitution help the people in a big way so long as they cannot be enforced through courts. In the above backdrop, whether Judicial Officers can be permitted to preach orphan child of the deceased who died in accident, and his widow; the outdated obsolete antithesis fatalism and "time is the best healer, Mantra as a weapon of evasion and avoidance of Compensation. 6. Dr Rajeev Dhavan, in a recent study organised by Indian Law Institute on functioning of Indian Judiciary has argued that the emergent capitalism must find a "substantive rationality", through the operation of market forces or failing which, it must allow the state to impose such a 'rationality', upon it. From the ideological angle, he prefers social jurisprudence and thus falls in line with the school of thought represented by Justice V.R. Krishna-Iyer and O. Chinappa Reddy. 7. However, leaving individuals and following the Constitutional mandate, the Indian Judiciary. From the ideological angle, he prefers social jurisprudence and thus falls in line with the school of thought represented by Justice V.R. Krishna-Iyer and O. Chinappa Reddy. 7. However, leaving individuals and following the Constitutional mandate, the Indian Judiciary. I am of the opinion, should always keep, the preamble of the Constitution which emphasises socialism and Directive Principles, in the forefront. That way alone justice can reach the down trodden, poor, oppressed and suppressed, underdogs and those victims of injustice, who on account of absence of long purse with ignorance illiteracy, and poverty, have remained out caste from the courts mostly. 8. A Judicial Officer should avoid chanting "Mantras" of Destiny & Fate, "Bhagya & Karmafal" in judgment and leave it to legislators The circumvention of law by "Bhagya & Karma" would result in liquidation of Judicial activism, encourage non-implementing Executive & would leave us to law of jungle. 9. Are the following observations not derogatory to Socialist-Preamble? 10. They exhibit indiscrete effort of avoidance & evasion of "Social Security law's judicial implementation by Judicial Officer and, of his tilting the scales in favour of guilty defaulter, may be unwittingly or deliberately. 11. Reproduced from para 12 of the judgment, the sermon is as under: 12. Are we conscious of the magnitude of this problem? Let me state statistics only. 13. In India 1960, persons killed in Automobile accidents of roads were 5,106 but i . 1983 they were 30,417. The year 1986 recorded human lives lost in accidents to 40,000 and at this rate by the end of this century it would be from I .29,198 to 3,99,616 accidents. Even the National Transport Planning and Research Centre has raised red-alarm to all concerned on the above statistical results pointing towards "Automobile Invasion & Explosion like Atom Bomb Explosion " 14. In 19F6, 40,000 innocent citizens were crushed and killed by Automobile invasion and the number of the accidents were 1,75,000 in 1976. 15. "Nagasaki" lost 35,000 to 40,00 lives on account of Atom explosion. Hiroshima 70,000 which in 1945 resulted in surrender of Japan Axis power to Allies. 16. Automobile Bomb is more dangerous than Atom now, when 40,000 Bharties, have been crushed and killed by Automobile invasion leaving 1,75,000 injured crippled, in 210,000 reported accidents, in India in 1986. 15. "Nagasaki" lost 35,000 to 40,00 lives on account of Atom explosion. Hiroshima 70,000 which in 1945 resulted in surrender of Japan Axis power to Allies. 16. Automobile Bomb is more dangerous than Atom now, when 40,000 Bharties, have been crushed and killed by Automobile invasion leaving 1,75,000 injured crippled, in 210,000 reported accidents, in India in 1986. One can expect atleast four times unreported accidents in Indian country-side, as primarily village people believe in ignorance, Blind dogmas of Fatalism and keeps World record in to tolerating injustice, exploitation injuries and aggression, may be Automobile or Atom. 17. The Automobile Invasion therefore, goes on increasing in much more than Geometrical proportion, whereas preventive and punitive measures to check it grows in Arithmatical proportions analogous to Malthus 'theory of population in Economics ' 18. This hair raising, heart rendering, nerve shocking. society rocking, alarm and red alert has been drummed by me in socio legal context in (1) Amar tal's case ( 1987 (1) RLR 800 ), wherein I have prefaced the judgment with a question mark, Atom Bomb? Automobile Bomb? as under: "The latest statistical data furnished by various organisations like World Health-organisation, shows as per the report of Raj Chegappa (Published in India-Today. Hindi dated 15th May 1987 at page 71) that the fatal accidents have increased in grammatical proportion and number of deaths have gone up to 40,000 during last year whereas the number of deaths in such road accident was 17,778 in 1976. Injured similarly the n'imber of accident which were 1,24,661 in 1976 increased to 2,10,000 in 1986 showing an alarming situation. The report says that there accidents are 30 times more than the number of such accidents in other developing countries of the World. Total persons killed in India on account of automobile accident on road is two and half percent of the total death rate which again should be an eye opener to the all concerned." 19. The pity is that we still want to undermine and minimise it by preaching sermons of fate & Destiny & "Time being the best healer." 20. If the judicial officer, while determining compensation or adjudicating the criminal liability. starts preaching sermons of 'Karmafal & Bhagya' to the complainant, victims of the accidents and deceased families then the legislature & executive would safely have a holiday, both for legislation to curb accidents & to increase compensation and punishments. If the judicial officer, while determining compensation or adjudicating the criminal liability. starts preaching sermons of 'Karmafal & Bhagya' to the complainant, victims of the accidents and deceased families then the legislature & executive would safely have a holiday, both for legislation to curb accidents & to increase compensation and punishments. The executive would display the Judicial verdicts as protective umbrella to their in-action, lethargy, negligence in administration, 21. I am, therefore, of the opinion that sermon preaching of 'Bhagya' and 'Karma' as has been done in this case is highly reprehensible and retrogatory attitude for a Judicial Officer, who should always be alive to the felt necessities of times as pointed out by Justice Holmes and "Writings on the walls" as per the Hon'ble Krishna lyer's social justice judgments, themes. 22. Fate & Destiny are lame excuses for all failures lapses, inefficiency, defeat, lethargy. In the instant case, it is a hypocratic recital of Mantras to protect defaulters, negligence from adequate compensation. It is insult to injury & puts salt Duel wounos of accident victim families by justifying inadequate compensation and debarring them from adequate one. 23. The 'Karmafal of Purva anma' and the 'Bhagya' mythology as also "Time Be Best Healer" evasion and avoidance of Judicial duty, if not providing deliberate protective umbrella, to the offenders and defaulters from pecuniary liability of compensation in this case ? This must stop if judiciary is to play an activist role atleast in respecting Social Welfare Legislation's for providing social security to the victims injured, widows, deceased, handicapped, unfortunate bereaved members of the accident killed deceased, in the socially, economically, oppressed, depressed, suppressed and depressed, victim class. 24. And now the traditional narration of the accident compensation claim case. 25. This is an appeal under section 110-D of the Motor Vehicles Act, 1939, against the Award dated 20th March. 84, given by the Judge, Motor Vehicles Accidents Tribunal, Bundi, in Suit No. 32/82. dismissing the claims of the appellants. 26. On 12th June, 79, at about 2.30 AM at Keshorai Patan Junction (chouraha) of Bundi Road, an accident happened on the southern side where a small road is existing at a distance of about 400 metres, where Tractor No. RJG 2362 with its trolly No. RJG-174, driven by Kastoora respondent was involved. One Jamnashankar was the owner of the said vehicle. One Jamnashankar was the owner of the said vehicle. As a result of the accident, the trolly overturned and one Raghunath sitting in that trolly, who was bringing cement-sheets, was crushed and died at spot. Two other persons, namely, Mohanlal and Lodakya received injuries in the said accident, and Jamnashanker was saved. 27. According to the allegations, Jamnashanker entered into a conspiracy and in order to wipe out the evidence, took the dead-body of Raghunath in the tractor, and without getting any post-mortem examination conducted, funeral was done in hot haste in the village at 7 AM. 28. The appellant's claim before the Tribunal was dismisses by it. Mst. Shanti is the widow of Raghunath, while Mst. Rajkanta is his daughter. And, Gajanand and' Mst. Godi are the parents of the deceased. 29. Jamnashanker appeared as a witness and stated that the trolly overturned only at a distance of about 3 feet. According to him, the number of the tractor (Ferguson) was RJG - 1747, and that of the trolly was RJG 1745, with which, he had no connection, nor had any connection with Kastoora, driver of the said tractor. He has also denied his presence in the trolly. Regarding the cases of the accident, Jamnashanker has given reason as disconnection of the hook connecting the trolly with the tractor. 30. Jamnashanker's version was that though Mst. Shanti has become widow on account of the, accident. and Mst. Rajkanta has lost her father, but, they have been misguided, because, in the community to which they belong, remarriage only brings welfare and is a profitable proposition. Jamnashanker's plea as per para-2 of the judgment of the Tribunal, was that in Nleena-Community, since re-marriage is customary, it is a profitable result flowing from the death of the husband and father. 31. The Insurance Company also contested the claim on various grounds, one of them being that the tractor was being run against the conditions of the insurance, and therefore, for the accident of tractor No. R tG-2362 and trolly No. RJG 1745, the Insurance Company was not responsible. The Insurance Company supported the plea of Jamnashanker that he was not connected with the accident in any way. Then, issues were framed and evidence of AW I Gajanand, AW 2 Mst. Shantibai, AW 3 Ghasi, AW 4 Dr. The Insurance Company supported the plea of Jamnashanker that he was not connected with the accident in any way. Then, issues were framed and evidence of AW I Gajanand, AW 2 Mst. Shantibai, AW 3 Ghasi, AW 4 Dr. Nagesh Joshi, AW 5 Prem Shanker, AW 6 Balaprasad Bhatnagar, AW 7 Lodakya and AW 8 Mohanlal was recorded; and exhibits were marked from Ex. I to Ex. 5 against the medical certificate of Mohanlal; his X-Ray report; FIR No. 70/79 of PS-Keshorai Patan; site-plan; and the report of the Mechanic, respectively. 32. Jamnashanker examined himself and submitted a certificate of registration (Ex.A.1) as regards trolly No. RJG 1745 and an 'Insurance Certificate (Ex,A.3) as regards tractor No. RJG-2362. 33. The Tribunal came to the conclusion that it was proved that Raghunath was coming with cement-sheets. and Mohanlal and Lodkya were also there in tractor No. RIG-1745; and it was also proved that there was an accident, in which, Raghunath died. Tribunal then posed a queition whether driver Kastoora was driving a Ford tractor No. RJG 2362, or he was driving a Massey Ferguson tractor No. RJG 1743, and whether Kastoora wai driving the said tractor rashly and negligently, as a result of which trolly No. RJG-1745 had overturned. Kastoora was added as a party by the claimants, but, he did not dare to appear before the court. , 34. Lodkya AW 7 has clearly stated that the 'tractor was of Jamnashanker, and that the trolly thereof was'also there at the time of the accident. 35. Mohanlal AW 8 has also verified that Raghunath was crushed and there was an accident. 36. Lodakya and Mohanlal both have stated that the pin of the trolly connecting it with the tractor, had been detached, as a result of which, there was the accident. 37. The Tribunal, on account of the certificate mentioned in the cross-examination, has inferred that the tractor was of Massey-Ferguson and not of Ford. 38. Mr. A. K. Sharma, the learned counsel for the appellant-claimants, urged that simply swing that the tractor was of Massey-Ferguson and not of Ford, the claim-petition could not have been dismissed by the Tribunal on such a petty technical ground, nor could this fact be treated as not proved. According to Mr. 38. Mr. A. K. Sharma, the learned counsel for the appellant-claimants, urged that simply swing that the tractor was of Massey-Ferguson and not of Ford, the claim-petition could not have been dismissed by the Tribunal on such a petty technical ground, nor could this fact be treated as not proved. According to Mr. Sharma, the non-applicant-respondents admittedly have not produced Kastoora, the driver of the tractor in the court, and that was enough to draw an adverse inference. Mr. Shardaa went on arguing that the Tribunal has committed serious error in not appreciating the testimony of AW 3 Ghasi and AW 5 Premshanker and discarding them. Mr. Sharma was justified in arguing that this omission on the part of the Tribunal was nothing but failure of justice. He further added that the Tribunal even did not allow AW 8 Mohanlal to be declared hostile in spite of the prayer, when he tried to oblige Jamnashanker. 39. The Tribunal, in my opinion. has mentioned the facts which are patently against the record of the case itself, because, it is now admitted by the learned counsel for the respondents also that a case has been registered against Jamnashanker and Kastoora and prosecution is going on. The statement of Premshanker AW 5 read with that of Ghasi AW 3, clearly shows that a case has been registered against Jamnashanker and Kastoora. And, EX. A. 3 makes a mention of Section 201, Indian Penal Code also, which itself is revealing, because Section 201, Indian Penal Code comm into play when the effort is to destroy evidence; and, in the present case, there is allegation against Jamnashanker that he put the dead-body of the victim in tractor; took it away from the spot; and got the funeral done without getting any postmortem examination done in early morning. 40. In spite of all this discussion in para-8 of its judgment, the Tribunal has assumed that Jamnashanker has been prosecuted. 41. In view of the above infirmities, I am of the view that the finding of the Tribunal on this aspect, is against the record itself, and requires reversion. 42. 40. In spite of all this discussion in para-8 of its judgment, the Tribunal has assumed that Jamnashanker has been prosecuted. 41. In view of the above infirmities, I am of the view that the finding of the Tribunal on this aspect, is against the record itself, and requires reversion. 42. Now, coming to the question of rashness and negligence, I am of the opinion that even if it is assumed that the accident happened on account of the detachment or breaking away of the pin connecting the tractor with the trolly, normally, the negligence would be assumed of both the owner and the driver of the tractor. because, that could be on account of two reasons, firstly, if the driver of the tractor did not drive it in a proper manner resulting in breaking away or detachment, or pin itself was not either well-tied with the tractor, or it was defective, or it was so weak that it resulted in the accident In either case. unless the contrary is shown negligence will have to be inferred. Moreover. I am also inclined to accept the contention of Mr. Sharma that in the broad circumstances of the present case the principle of the maxim, "res ipsa loquitur" applies, and it is for the driver of the vehicle or the non-applicant-respondents to show that due care and caution was taken by them both as regards the mechanical aspects of the tractor and trolly and that also precautions were taken in driving. 43. The Tribunal's finding that the present one can only be :aid to be a case of misfor une due to loose connecting the troolly with the tractor, is not justified The Tribunal should have gone into further question whether the non-applicants have been able to prove that a proper pin was attached and the vehicle was in a proper mechanical condition, and also whether the said pin was properly tied up with the tractor In view of the above, I am of the view that the Tribunal was not justified in holding that Kastoora was not liable and respondible for the accident; and, I hold that the driver of the tractor, Kastoura, was liable for the accident, which happened on account of his rashness and negligence in driving. Now, so far as the claim is concerned, there is no cross objection, and whether amount has been allowed by the Tribunal, is to be confirmed. 44. All that requires to be pointed out is that certain observations of he Tribunal while deciding Issue No. could have been and should have been avoided. To elucidate and pin-poi,,t the Tribunal's observation that "Mst. Shanti has no doubt become widow but this injury caused to her can only be recouped by passage of time and not by compensation; and similarly, the daughter of the deceased can get love and affection from her uncle and grand-father because she is a girl of 6 months and who so ever would nourish and feed her, would become her father" I feel pity that such observations are made by the Judicial courts which only add insult and injury to a lady who has lost her husband and to a daughter who has lost her father, in an accident. In a social welfare State, enshrined with "SOCIALISM" in the Preamble of the Constitution avoidance of grant of compensation. or reduction in its amount on the basis of so-called fatalist philosophy put fetters and belies the object of the Preamble and the Directive Principles of the Sta e. 45. I am shocked that such an approach is made under the Indian Constitution which has taken care to provide Directive Principles, the Preamble, and also amendments thereto from time to time to make provisions for social security for such victims of accidents and other calamities, who are cursed, handicapped and destitutes. The obsevations of the Tribunal for permitting the wounds of a widow-victim of an accident where she lost her husband, to be healed by passage of time, and ignoring the children's plight by avoidance-move that whosoever would give them love and affection, would become their father, is a serious lapse, which indirectly results in failure of Justice and ignoring the mandate of compensation-laws like Workmen's Compensation Act, Social Security Act etc. 46. In Indian Society, on the death of the head of a family, it becomes a serious problem for the society in addition to the family itself. and for that is the enforcement of the social welfare legislations is very necessary. 47. 46. In Indian Society, on the death of the head of a family, it becomes a serious problem for the society in addition to the family itself. and for that is the enforcement of the social welfare legislations is very necessary. 47. I am, therefore, of the opinion that the Tribunal should avoid making such observations and show its keenness and anxiety to enforce social welfare legislation, in the spirit of that legislation as I have already observed in so many cases. 48. Now, coming to the case of the Insurance Company, I would consider the argument of Mr. S. N. Kumawat, who is appearing on behalf of the Insurance Company. According to Mr. Kumawat, the Insurance Company is not at all liable in this case, because, the vehicle was meant for agricultural purposes, but, it was used contrary to the erms and conditions of the Insurance- Policy. He referred to the case of Bhoi Vanaji Dhttlajl and another v. Patel Shivbhai Kashibhai and others, ( 1981 ACJ 107 ) , wherein, the vehicle was not covered by the permit to ply for hire or reward, and the user was restricted only for agricultural purposes. In that case, the driver of the vehicle tractor) had permitted some persons to travel for hire and reward. The Gujarat High Court in that case, held that there was a breach of specific condition of the policy. 49. Mr. Kumawat's argument is that in this case also, the condition of the insurance-policy was that the vehicle would be used only for agricultural purposes. He based his argument on the seal of the cover-note (Ex. 3) Mr. Kumawat when challenged by Mr Sharma as well as Mr. Bhandari, pointed out that in the written-statement he did take objection No. 5, which mentions that the vehicle was being run against the contract. 50. I have considered this aspect of the matter also. In the present case, this is now admitted position that the Insurance Company has not filed a copy of the insurance-policy, containing the terms and conditions. It is settled law that in such cases, the Insurance Company should produce each such document whatever is in its possession. before the Court. Non-filing of the copy of the insurance policy deprives the Court looking into the terms and conditions of the policy in detail. 51. It is settled law that in such cases, the Insurance Company should produce each such document whatever is in its possession. before the Court. Non-filing of the copy of the insurance policy deprives the Court looking into the terms and conditions of the policy in detail. 51. Morever, in para-5 of the written-statement, a vague and sweeping objection has been taken that the vehicle was being driven against the conditions of the insurance-policy. Which were those conditions, have not been clearly mentioned. No specific objection has been taken in the written-statement, or by way of production of any other document as a copy of the insurance-policy. All that is being argued, is that the certificate of the insurance itself covers a seal at Point No. 6, and this certificate of insurance is enough. I am unable to draw any such inference, because, the certificate of insurance is certainly to show that an insurance was done, but, the policy which contains the conditions of the insurance, has not been produced, nor has its copy been produced by the Insurance company. Mr. Kumawat concedes that the Insurance Company, has not produced any document to substantiate its contention that the conditions of the insurance policy were violated, and if so, in what manner. The cover-note also shows that the insurance was comprehensive. 52. In view of the above, the decision of the Gujarat High Court, would not provide any guidance, because, no insurance-policy has been produced by the Insurance Company in this case, containing the terms and conditions of the insurance. 53. Consequently, the appeal succeeds, and the claim petition is accepted. The amount of claim which is Rs. 65,000/- as per the Tribunal's finding and which has not been challenged in any manner whatsoever, would be paid by depositing in the manner laid down by me in the case of Mst. Pista Devi Aggarwal v. R.S.R.T.C., ( 1986 ACJ 23 = 1985 RLR 134 ) , 50% thereof would go to Mst. Shantidevi, the widow; 25% to Mst, Rajkanta the daughter of the deceased, Raghunath; and the balance amount would be divided between Gajanand and Mst Godi, each of them getting 121/2%. In the case of death of anyone, the balance would go proportionately to others. The claimants would also get interest at the rate of 1% per annum. Shantidevi, the widow; 25% to Mst, Rajkanta the daughter of the deceased, Raghunath; and the balance amount would be divided between Gajanand and Mst Godi, each of them getting 121/2%. In the case of death of anyone, the balance would go proportionately to others. The claimants would also get interest at the rate of 1% per annum. from the date of application till the date of realisation, who would further get the costs throughout, from the non-applicant-respondent.Appeal allowed. *******