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2003 DIGILAW 5 (HP)

Nikki Devi v. Bhajan Singh

2003-01-06

ARUN KUMAR GOEL, K.C.SOOD

body2003
JUDGMENT : Arun Kumar Goel, J. Claim petition filed by the appellant was dismissed by the learned Motor Accident Claims Tribunal below vide impugned Award dated 2.7.2002, in M.A.C. No. 56 of 2001. On the basis of finding, issue No. 1 which was regarding negligence of the bus driver causing death of the son of the appellant, as well as issue No. 4 which was regarding jurisdiction of the Tribunal at Bilaspur, the claim petition was dismissed. Other issues i.e. Issue Nos. 2, 3 and 5 were held to be rendundant. 2. Case set up before the said Tribunal below was that Harbans Singh alias Raj Kumar, 26 years old son of the appellant was working as a Cleaner on truck bearing registration No. HP-22-0908. He died in an accident on 23.2.2001 at Village Sakhomajra on Morinda Sarhind Road. 3. Further case of the appellant was that the deceased was going on road towards Morinda on foot in village Sakhomajra on Morinda Sarhind road, when bus bearing registration No. PB-12C-1633 struck Raj Kumar above named from the back side. This resulted in causing injury to him. On being shifted to the hospital he succumbed to these injuries. FIR was registered as Police Station, Morinda. On these allegations compensation in the sum of Rs. 10 lacs was claimed. 4. Respondents No. 1 and 2 denied the factum of accident, as also that the Tribunal at Bilaspur had no jurisdiction to try the petition. Locus standi of the appellant was also challenged. Insurance Company objected by way of preliminary objections to the maintainability of the claim petition in its present form, it being incomplete, vague and not disclosing any cause of action. It was further pleaded that it had issued no policy of insurance, vehicle being driven by an unauthorised person, who had no valid and effecting driving licence, as also the same was not validity registered nor it had fitness certificate and route permit so as to be brought on record. Jurisdiction of the Tribunal to hear the matter was also disputed. 5. Appellant appeared as PW-1 and examined one Amar Chand as PW-2. Since she was not there at the time of accident, she only stated that Rs. 10,000/- were spent by her on funeral as well as bringing the dead body from Punjab to her native village. Jurisdiction of the Tribunal to hear the matter was also disputed. 5. Appellant appeared as PW-1 and examined one Amar Chand as PW-2. Since she was not there at the time of accident, she only stated that Rs. 10,000/- were spent by her on funeral as well as bringing the dead body from Punjab to her native village. Her son was married and was working as a cleaner on the truck in question PW-1, according to her deceased used to give Rs. 2500/- per month to her, and he also used to do agriculture work at home. She suffered mental pain and suffering besides agony. In cross-examination on behalf of the Insurance Company, she stated that she is living with her parents. Whereas in cross-examination on behalf of respondents No. 1 and 2, she stated that her residence is in Hamirpur district. 6. PW-2 is Amar Chand who has stated that he was working as a driver on the truck owned by one Rakesh Kumar on the fateful day, on 23.3.2001 he went to Morinda and Raj Kumar was working cleaner on the truck in question. He at Morinda stopped his truck near a dhaba, and had asked its cleaner i.e. the deceased to enquire if Tudi (chaff) was available there. When at about 2 p.m., cleaner was coming back on the road he was pushed by the above referred bus from behind. As a result of which Raj Kumar fell on the road. He had clearly given number of the bus being PBN-12-1633. he further stated that this bus was being driven by the driver who was a sikh gentleman. On seeing this, witness rushed and picked up Raj Kumar but found that he was dead. Deceased was taken to hospital after he was hit by the bus. He also lodged the FIR. Per him, accident was the result of negligence on the part of the bus driver. He was taken in the bus to the hospital after accident. There is no evidence in rebuttal produced by any of the respondents, except for tendering copies of certain documents as is evident from the statement of learned Counsel recorded on 2.5.2002. 7. In the aforesaid background, claim preferred by the appellant was dismissed, hence this appeal. 8. He was taken in the bus to the hospital after accident. There is no evidence in rebuttal produced by any of the respondents, except for tendering copies of certain documents as is evident from the statement of learned Counsel recorded on 2.5.2002. 7. In the aforesaid background, claim preferred by the appellant was dismissed, hence this appeal. 8. At the very outset, we may notice that once the learned Tribunal came to the conclusion that it had no jurisdiction, in all fairness it ought not to have decided issue No. 1. On the other hand, it had expressed opinion on issue No. 1 and at the same time, it has also held that it has no jurisdiction. 9. So far procedure to be followed and power of the Tribunal is concerned, these are within the confines of Section 169 of the Motor Vehicles Act, 1988. We may also point out that by Central Act No. 54 of 1994 (which came into force from 14.11.1994) for then existing Sub-section 2 of Section 166 of the Motor Vehicles Act, following was substituted. "(2) Every application under Sub-section (1) shall be made, at the option of the claimant, either to the claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed : Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant)....." 10. A plain reading of this substituted provision shows that a claim petition could be filed before Tribunal within local limits of whose jurisdiction claimant "resides". Giving a plain meaning to the word "resides", it is the residence of the claimant at the time of the presentation of the petition which is relevant. It cannot be said to mean either permanent residence or where such claimant ordinarily resides. It is in fact in the nature of the residence of the claimant in the presenti. Giving a plain meaning to the word "resides", it is the residence of the claimant at the time of the presentation of the petition which is relevant. It cannot be said to mean either permanent residence or where such claimant ordinarily resides. It is in fact in the nature of the residence of the claimant in the presenti. If a narrow meaning as given by the learned Tribunal below is upheld, it will result in defeating the purpose of substitution of Section 166 (2) from as it originally existed in the year 1994. In view of this, findings on Issue No. 4 recorded by the learned Tribunal below, are not sustainable and those deserve to be set aside. Ordered accordingly. 11. Evidence of the appellant on issue No. 1 has remained un-controverted. Best person to rebut whatever stated by PW-2, the driver of the truck on which deceased was employed, was the driver of the bus in question. He has admittedly been not examined. Here we may also observe that rigors of Evidence Act as well as procedural law do not apply as in civil cases to the proceedings under Motor Vehicles act, while dealing with claim petition. Because procedure and power of claim Tribunal are specified under Section 169 of the Act (supra). Having given our thoughtful consideration, we feel that the findings on Issue No. 1 also need to be reversed on preponderance of evidence. Statement of PW-2 had to be read in its entirety that having not been done, those findings also need to be set aside and it is ordered accordingly. 12. No other point is urged. 13. In view of the aforesaid discussion, this appeal is allowed and consequently the impugned Award is set aside. Learned Tribunal below is directed to proceed further in the matter and determine the case in accordance with law, of course, after hearing the parties as well as on the basis of the material on record. Parties through their learned Counsel are directed to appear before the learned Tribunal below on 3.3.2003, whereafter the Tribunal below will proceed to dispose of the case with utmost expedition and despatch. It will not issue any fresh notice to the parties/their learned Counsel since date has been fixed by this Court. 14. Parties through their learned Counsel are directed to appear before the learned Tribunal below on 3.3.2003, whereafter the Tribunal below will proceed to dispose of the case with utmost expedition and despatch. It will not issue any fresh notice to the parties/their learned Counsel since date has been fixed by this Court. 14. Registry will ensure that record is transmitted to the Tribunal below well before the date fixed Copy of this order will be made available to the learned Counsel for the parties by or before 18.3.2002.