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2006 DIGILAW 316 (JK)

Union Of India v. Mohd. Yousuf Bhat

2006-12-27

J.P.SINGH

body2006
1. This appeal is directed against award dated 20th of October, 2005 of Motor Accidents Claims Tribunal, Anantnag awarding an amount of Rs. 10, 00,000/- as compensation in favour of the claimants along with interest @ 9% per anum. 2. Appellant-Union of India questions this award on two grounds viz: 1. The Motor Accidents Claims Tribunal, Anantnag had erred in holding that the accident had occurred because of the negligence of appellants driver in driving the BSF vehicle. 2. The compensation assessed by the Tribunal was excessive and against the provisions of law. 3. Before dealing with the issues raised by learned counsel for the appellant at the time of consideration of this appeal, reference to the following facts may be necessary: Nazir Ahmad Bhat, stated to be a Businessman, dealing in fruit, lost his life in a motor vehicular accident, when while driving his Scooter No. 9484 from Pahalgam towards Anantnag, his Scooter was his from behind by a vehicle driven by Head Constable Duttatary and owned by the Border Security Force. This accident had occurred on 13th of August, 2001. A claim petition was filed by Mohammad Yousuf Bhat, the father, Mst. Raja, the mother, Mst. Hafeeza, the widow, Muzaffar Ahmad and Shahid Ahmad, the sons and Miss Sabrooza Akhter, the daughter of the deceased claiming an amount of Rs. 65,25,000/- as compensation on account of loss of future income for 35 years, loss of consortium, loss of love and affection, shock and agony to the family and for funeral expenses against Union of India, Commandant Border Security Force and the driver of the vehicle. 4. Appellant-Union of India filed its reply to the claim petition saying interalia that on 13th of August 2001 at about 1500 hours, a convoy of three vehicles, one light and two medium, was dispatched from Pahalgam to Khannabal. Vehicle No. DBL-70461-1/2 ton driven by head Constable-Driver, Duttatary was part of this convoy. At about 1545 hours when the convoy reached near village Akad, the driver of the vehicle noticed one duck crossing the road and in order to save the duck, the driver slowed down the vehicle and moved towards left side of the road. In the meanwhile, one scooterist driving the scooter at high speed tried to overtake the BSF vehicle from wrong side and having failed to control the scooter, hit the left side of the BSF vehicle. In the meanwhile, one scooterist driving the scooter at high speed tried to overtake the BSF vehicle from wrong side and having failed to control the scooter, hit the left side of the BSF vehicle. The accident, according to the appellant, had occurred due to rash and negligent driving of the deceased scooterist. Out of the pleadings of the parties, the Tribunal framed five issues, which read thus: 1. Whether on 13-08-2001 the deceased along with one Abdul Rashid Wagay was coming on his scooter No. 9484 from Pahalgam towards Anantnag, a vehicle bearing Registration Mark 23/10 DL/7925 belonging to BSF was also coming from Pahalgam towards Anantnag, the offending vehicle hit the scooter from behind in the result the scooter, the decease and his accomplice Abdul Rashid fell on the left side of the road causing injuries to the deceased who was taken to Hospital by local police but the deceased succumbed in midway due to injuries sustained in the accident? OPP 2. Whether the offending vehicle belonged to BSF? OPP 3. In case issues No. l and 2 are proved in affirmative to what amount of compensation are the petitioners entitled to from whom and in what proportion? OPP 4. Whether the offending vehicle was being plied at the time of the accident rashly and negligently? OPP 5. Relief. 5. The claimants examined Ghulam Qadir Raina, Mohammad Ramzan Wani, Nazir Ahmad Khan, Riyaz Ahmad Khan and Mohammad Yousuf Bhat, one of the claimants. The appellants on the other hand examined Mohinder Singh, Head Constable, Duttatary Head Constable and one Rajinder Singh. 6. After evaluating the evidence of the parties, the Tribunal came to the conclusion that the accident had occurred because of the rash and negligent driving of vehicle No. DBL-7046 1-1/2 ton by Head Constable driver Duttatary and the claimants were entitled to an amount of Rs. 10,00,000/- along with interest at the rate of 9% per annum as compensation from the appellants. 7. Sh. S. A. Makroo, learned counsel for the appellants, submitted that the Tribunal had erred in recording its finding on issue Nos. 1 and 4 holding that the accident had taken place due to the rash and negligent driving of the vehicle No. DBL-7046 1-1/2 ton by Head Constable driver Duttatary. 7. Sh. S. A. Makroo, learned counsel for the appellants, submitted that the Tribunal had erred in recording its finding on issue Nos. 1 and 4 holding that the accident had taken place due to the rash and negligent driving of the vehicle No. DBL-7046 1-1/2 ton by Head Constable driver Duttatary. Learned counsel says that the Tribunal had failed to discuss the evidence which had been produced by the respondents and had thus erred in recording the findings against the appellants without discussing their evidence. According to the learned counsel, the evidence produced by the appellants had conclusively proved that the deceased himself was responsible for his death because of his driving the scooter in a rash and negligent manner and that the accident had not taken place, because of the rash and negligent driving of Head Constable Driver Duttatary. Learned counsel submitted that the BSF vehicle was not in any way involved in the accident which had reportedly led to the death of Nazir Ahmad Bhat. Learned counsel questioned the findings of the Motor Accidents Claims Tribunal on issue No. 3 as well saying that the amount awarded by the Tribunal to the claimants was excessive and that the claimants were not entitled to the amount which had been awarded by the Tribunal under the Motor Vehicles Act 1968. 8. Sh. M. H. Attar, learned counsel for the claimants-respondents on the other hand, while meeting these submissions of learned counsel for the appellants urged that the findings of the Tribunal did not suffer from any error of law and that the Tribunal had rightly appreciated the evidence lead by the parties while coming to the conclusion that the accident had occurred because of the rash and negligent driving of the BSF vehicle by Head Constable Driver Duttatary. Learned counsel urged that the findings of the Tribunal on issue Nos. 1 and 4 was supported by the evidence on the records. 9. Before dealing with the submissions raised at the Bar, it would be appropriate to go through the findings recorded by the Tribunal on issues Nos. 1 and 4. The finding of the Tribunal on these issues is as under:- "....Now taking issue No.l at the first instance, it is to be seen as to whether the offending vehicle hit the scooter from behind and in the result, the scooter, the deceased and accomplice Ab. 1 and 4. The finding of the Tribunal on these issues is as under:- "....Now taking issue No.l at the first instance, it is to be seen as to whether the offending vehicle hit the scooter from behind and in the result, the scooter, the deceased and accomplice Ab. Rashid fell on the left side of the road causing injuries to the deceased who later succumbed on way to Hospital. In support of this averment Gh. Qadir Raina has said that the offending vehicle was following the scooterist, when both were coming from Pahalgam side. At Akad village the offending vehicle hit the scooter from behind. Resultantly the scooterist, the pillion rider and the scooter fell on the road side and the driver of the offending vehicle drove away from the scene. Deceased who sustained the injuries passed away. Statement of Mohd. Ramzan Wani, another witness of the petitioners is exactly the same, as far as this fact is concerned. The above two witnesses are the eye witnesses and their testimony has remained unshaken. As against the above evidence of the petitioners, the evidence led by the respondents appears to be improbable when they say that no with the offending vehicle but with a chinar tree, the scooterist was stuck, which resulted in the accident. Besides being improbable, this evidence of the respondents contradicts their own stand taken in the written statement that by overtaking and running at a fast speed, the scooterist hit the rear side of the offending vehicle and the accident was caused as the scooterist lost control of the scooter which rammed with a chinar tree. Clearly the evidence of the respondents and their case pleaded in the written statement, do not see eye to eye with so far as the above stated fact is concerned. Therefore, it has to be held that the accident was caused when the offending vehicle hit the scooter from the behind and the scooterist fell down on the road, sustained injuries and died on his way to hospital. Accordingly, issue No. I is decided in favour of the petitioner. Issue No.4: The two eye witnesses of the petitioners namely Gh. Qadir Raina and Mohammad Ramzan have in one voice stated that the offending vehicle was being plied rashly and negligently when the accident was occurred. Accordingly, issue No. I is decided in favour of the petitioner. Issue No.4: The two eye witnesses of the petitioners namely Gh. Qadir Raina and Mohammad Ramzan have in one voice stated that the offending vehicle was being plied rashly and negligently when the accident was occurred. The statements of these two witnesses coupled with the conduct of the respondent driver to drove away from the scene of the accident, knowing, fully well that deceased had been injured critically indicates that there has been carelessness and negligence on the part of the driver of the BSF vehicle. Besides the passing away of the deceased on the very day of the accident demonstrates that the nature of the injuries received by the deceased had been such, as to the make him to breath his last within a short period of time after the accident which in turn shows that the offending vehicle would have been running at a fast speed. Evidence of the respondents witnesses is not believable when they say that the scooterist had not at all been hit by the offending vehicle. There is clear evidence that offending vehicle was chasing the scooter and in this process hit the same and caused the accident. From this, it is clear that the offending vehicle which was behind the scooter and which hit the same, was being plied at a speed greater than that of the scooter other side the said vehicle couldnt hit the scooter, which was running ahead of it. So it was the offending vehicle which tried to overtake the scooter and not the vice versa. Therefore, the plea of the respondents that the scooterist while trying to overtake the BSF vehicle hit the same and then rammed with a chinar tree is not tenable, as same is not supported even by their own evidence, which says that the vehicle was not involved at all in the accident. Net result of the above discussion and the perusal of the evidence is that it has been proved that the vehicle involved in the accident was being plied rashly and negligently at the time of the accident. Issue No. 4, as such, decided in favour of the petitioners and against respondents." 10. Net result of the above discussion and the perusal of the evidence is that it has been proved that the vehicle involved in the accident was being plied rashly and negligently at the time of the accident. Issue No. 4, as such, decided in favour of the petitioners and against respondents." 10. Perusal of the findings recorded by the Tribunal on these two issues show that the Tribunal had assessed the evidence led by the parties and given cogent reasons for disbelieving the evidence of the appellants and accepting the evidence of the claimants that the accident resulting in the death of Nazir Ahmad Bhat, had occurred because of the rash and negligent driving of BSF vehicle by driver, Head Constable, Duttatary. With the assistance of learned counsel for the parties, I went through the evidence recorded by the Tribunal on these two issues. Perusal of the statements of the witnesses produced by the respondent-claimants shows that while under cross-examination, these witnesses had not been confronted with the appellants version of the accident which they had sought to project through their own case. The evidence of the witnesses of the claimants describing the manner in which the BSF vehicle had struck against the scooter of Nazir Ahmad Bhat, had remained uncontroverted and no worthwhile contradiction or improbability had appeared in the statement of the witnesses who had seen the occurrence. 11. In view of the variance in the stand of the appellants, i.e. one appearing in the objections and the other sought to be projected through their evidence, the plea of the appellants cannot be believed. The evidence led by the claimants is supported by the first version of the occurrence which was noticed by the J&K State Police in FIR No. 281/01 registered at Police Station, Anantnag. I am, therefore, inclined to accept the version of the claimants as it stands reflected in the pleadings and proof adduced in support thereof. I, therefore, do not find any merit in the submission of Shri Makroo when he says that the finding of the Tribunal on issue No. 1 and 4 was not sustainable. This submission of Mr. Makroo is, accordingly, rejected. 12. Findings of the Tribunal on issues No.l and 4 are, accordingly, affirmed. I, therefore, do not find any merit in the submission of Shri Makroo when he says that the finding of the Tribunal on issue No. 1 and 4 was not sustainable. This submission of Mr. Makroo is, accordingly, rejected. 12. Findings of the Tribunal on issues No.l and 4 are, accordingly, affirmed. Before examining the plea of Union of India that the compensation had not been assessed in accordance with law, regard needs to be had to the finding of the Tribunal on this issue. This finding reads thus: "Issue No.3: In the claim petition age of the deceased has been given as 35 years. According to Mohd. Ramzan, deceased was aged as 30/35 years. Other witnesses have given the age of the deceased as 30/35 years. Therefore, age of the deceased as given by his father has to be taken as 35 years. Monthly income of the deceased according to the claim petition was Rs. 15,000/-. Deceased was a fruit businessman. Witness Gh. Qadir Raina has said that monthly earning of the deceased was Rs. 14,000/- to Rs. 15,000/-. Mohd. Ramzan has given the income of the deceased as more than Rs. 10,000/- a month. Father of the deceased has said that yearly earning of his son was about Rs. 2.5 lacs which comes to Rs. 20,000/- a month. Going to the lower side, income of the deceased is taken as not Rs. 20,000/- as stated by his father, not Rs. 15,000/- as mentioned in the petition, but only Rs. 10,000/- as deposed by one of the witnesses namely Mohammad Ramzan.... " 13. The finding of the Tribunal does not spell out any reason in support thereof. Reason is the soul of a judicial order. A judicial order, sans reason, become a lifeless order. Such an order cannot thus, partake the character of a judicial order. The Tribunal had proceeded to determine the income of the deceased at Rs. 10,000/- only on the statement of one Nazir Ahmad Bhat who had not disclosed as to on what basis had he disclosed the income of the deceased to be Rs. 10,000/-. A person earning an amount of Rs. 10,000/- per month had necessarily to be an income tax payee and in absence of any such records having been produced by the petitioners, statement of Nazir Ahmad Bhat justifying the income of the deceased at Rs. 10,000/-. A person earning an amount of Rs. 10,000/- per month had necessarily to be an income tax payee and in absence of any such records having been produced by the petitioners, statement of Nazir Ahmad Bhat justifying the income of the deceased at Rs. 10,000/- would not inspire confidence for being relied upon for determination of income. 14. It is true that some amount of guess-work may be employed by a Tribunal or Court in recording a finding as to the income of a person yet a sustainable finding cannot be recorded only on guess work and some or the other positive evidence may be required by the Tribunal to come to the conclusion regarding the income of a person. 15. The finding of the Tribunal, which does not give any reason much less a basis for determining income of the deceased, thus, becomes unsustainable. It is accordingly set-aside. 16. While making an award under section 168 of the Motor Vehicles Act, 1968 for an amount of compensation, a Motor Accidents Claims Tribunal is required, first to determine the income of the deceased at the time of his death. In order to determine such income, the Tribunal has to record its specific finding in this behalf. Such specific finding may be recorded on the basis of evidence adduced before it or on the basis of such evidence which though not adduced before it may be recorded by it, on its own motion. It is only after recording such finding that the Tribunal may take the second step to assess the dependency of the persons who were dependent on the earnings of the deceased, and if need be, the dependency of each member of the family. Such finding is to be recorded on the basis of statements of those who were dependent on his earnings. 17. It is only when such finding, as aforesaid, is recorded that the Tribunal may proceed to determine the just compensation in terms of Section 168 of the Motor Vehicles Act. While determining compensation, the Tribunal is required to ensure that compensation so awarded to the dependent family of the deceased, even if some part of the compensation amount had to be spent by the family, carries such monthly amount by way of interest or otherwise which would compensate the family to meet its requirement in absence of the deceased. While determining compensation, the Tribunal is required to ensure that compensation so awarded to the dependent family of the deceased, even if some part of the compensation amount had to be spent by the family, carries such monthly amount by way of interest or otherwise which would compensate the family to meet its requirement in absence of the deceased. Compensation, to be awarded by the Tribunal, would become just compensation only if the amount so awarded would incur so much interest component or returns from such amount which would take care of the needs of the family as had been taken care of by the earnings of the deceased before his death. 18. It further needs to be noticed that all the legal heirs of the deceased may not be entitled to claim compensation under section 168 of Motor Vehicles Act, 1988, unless it was proved that such legal heirs were dependent financially, emotionally or otherwise on the deceased. The dependency of the legal heirs on the earnings of the deceased or the care, protection and affection which he had been bestowing on his dependents would thus be the sine-qua-non maintaining a petition by such legal heirs for award of compensation under section 168 of the Act. 19. The Tribunal, in the present case, has not dealt with all these aspects and has in a slip shod manner, recorded its findings on issue No.3, which does not satisfy the requirements of law as discussed hereinabove. 20. I am conscious of the fact that in absence of evidence of dependents on the deceased i.e. Widow, and other evidence proving the income of the deceased, requisite finding could not have been recorded by the Tribunal. In such circumstances, the Tribunal should have, on its own, summoned the widow and recorded such other evidence which would be required to prove income of the deceased and the dependency of the petitioners on his income. 21. I, therefore, in the facts and circumstances of the case, deem it proper to remand the case to the Tribunal to record the statement of the widow of the deceased and such other evidence as she may produce in support of the claim petition, so as to prove the income of the deceased at the time of his death and the dependency of the petitioners. After such evidence was produced by the respondents, the appellants shall also be afforded opportunity to produce their evidence. The Tribunal shall, thereafter, record its finding and pass an award in accordance with law on the basis of such evidence. 22. The impugned award is accordingly set-aside and appeal allowed on the terms indicated above. The Claims Tribunal shall take up this claim petition every week to ensure its final disposal expeditiously.