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2006 DIGILAW 3553 (PNJ)

Chaman Lal v. Anil Kumar

2006-09-13

VINOD K.SHARMA

body2006
JUDGMENT Vinod K. Sharma, J. (Oral) - The present appeal has been filed against the award dated 4.2.1999 passed by the Motor Accident Claims Tribunal, Kurukshetra (hereinafter called the Tribunal), vide which a sum of Rs. 50,000/- was awarded as compensation to the appellant herein under No Fault Liability. 2. Briefly the facts of the case are that on 15.7.1997 Sanjiv Kumar along with Raj Kumar was returning from Shahbad in order to go to Ugala after finishing his work in the shop on scooter bearing No. HNQ-8790 which was being driven by him at normal speed. At about 3 p.m. when his scooter reached on Barara road near Majri Mohalla, Shahbad, a jeep No. MH-01/8376 being driven by Anil Kumar, respondent No. 1 rashly and negligently came to the wrong side and struck against the scooter of Sanjiv Kumar, as a result of which he fell down and received injuries. Raj Kumar, who was sitting on the pillion seat, also sustained injuries. As a result of the injuries suffered by Sanjiv Kumar, he died in PGI, Chandigarh on the next day. 3. It was the case of the claimant-appellant that at the time of death Sanjiv Kumar was aged about 22 years and was running a gold-smith shop at Ugala and earning Rs. 10,000/- per month from his business and also from the shop of pesticides in which he was a partner. The claim was lodged by the appellant, father of the deceased on the ground that on account of death of Sanjiv Kumar he had suffered mentally and financially and accordingly claimed a compensation of Rs. 15 lacs. 4. The claim was contested by respondent Nos. 1 and 2 in which the allegations made by the claimant-appellant were denied and it was alleged that the accident had taken place due to the negligence of the deceased Sanjiv Kumar. It was claimed that the deceased had made a statement before the Police which stood recorded in DDR in which it was stated that one cow came in front of the jeep and accordingly the accident had taken place by chance and there was no negligence on the part of respondent No. 1. The allegation regarding income of the deceased was also denied. 5. The allegation regarding income of the deceased was also denied. 5. Respondent No. 3-Insurance Company, in its written statement took a stand that no such accident had taken place involving vehicle No. MH-01-8376 and claimed that the accident had taken place due to negligence of the deceased. It was also claimed that respondent No. 1 was not holding any valid driving licence at the time of the accident and on this basis the liability of the insurance was denied. On the pleadings of the parties, following issues were framed :- "1. Whether the accident took place on 15.7.1997 at Barara-Shahbad road near Majari Mohalla Shahbad at about 3.00 p.m. due to rash and negligent driving of Jeep No. MH-01/8376 driven by respondent No. 1 and caused death of Sanjiv Kumar ? OPP 2. To what amount of compensation the petitioner is entitled to and from whom ? OPP 3. Whether the petition is bad for misjoinder and non-joinder of necessary parties ? OPR 4. Whether the petitioner has no locus standi to file and maintain the present petition ? OPR 5. Whether respondent No. 1 was not having a valid driving licence at the time of accident ? OPR 3. 6. Relief." The learned Tribunal on issue No. 1 by placing reliance on the statement made by the deceased Sanjiv Kumar before the Police came to the conclusion that the claimant had failed to prove that accident had taken place due to rash and negligent driving of the jeep by respondent No. 1 and accordingly decided the issue against the claimant. 6. On issue No. 2, the learned Tribunal by placing reliance on the judgment of the Honble Supreme Court in the case of Shanti Bai and others v. Charan Singh and others, 1998(3) PLR 306 held that the parents of the deceased would be entitled to compensation of Rs. 1,50,000/-. In addition to that, it was further held that a sum of Rs. 15,000/- was spent for transportation of dead body and performing the last rites of the deceased. Though a sum of Rs. 20,000/- was claimed to have been spent on the treatment of the deceased, the learned Tribunal held a sum of Rs. 2,000/- to be payable. Although the claimant was held to be entitled to Rs. 1,67,000/- however, in view of the findings recorded on issue No. 1, a sum of Rs. Though a sum of Rs. 20,000/- was claimed to have been spent on the treatment of the deceased, the learned Tribunal held a sum of Rs. 2,000/- to be payable. Although the claimant was held to be entitled to Rs. 1,67,000/- however, in view of the findings recorded on issue No. 1, a sum of Rs. 50,000/- was awarded only under No Fault Liability. 7. Learned counsel for the appellant contends that the findings of the learned Tribunal on issue No. 1 cannot be sustained even if the statement of Sanjiv Kumar made before the Police is taken into consideration, the same could not be the basis for deciding issue No. 1. The contention of the learned counsel for the appellant is that even if it is admitted that the accident had caused by the driver of the jeep while trying to save the cow which suddenly came in front of the jeep and thereby hit the scooter which was being driven by the deceased on the correct side of the road, even in that eventuality, it would be a case of negligence on the part of the jeep driver. If the vehicle was being driven at a normal speed, it could have been controlled by the jeep driver and the accident could have been avoided. According to the counsel merely because the deceased was of the opinion that the jeep driver was not at fault would not be of any consequence. Further according to the Counsel, there is other evidence on record showing that the jeep was being driven in a rash and negligent manner and he placed reliance in this regard on the statement of PW-1 Ram Kumar. 8. In support of his argument, the learned counsel for the appellant relied on the judgment of the Honble Supreme Court in the Divisional Controller, Karnataka State Road Transport Corporation v. Mahadeva Shetty and another, 2005(1) PLR 6 wherein the Honble Supreme has been pleased to reject the plea of extra vigil by holding that natural forces free from human intervention like severe gale, snow storms, hurricanes, cyclones, tidal waves etc. do not operate as an excuse from liability in case there is reasonable possibility of anticipating their happening. 9. Learned counsel for the appellant also placed reliance on the judgment of the Honble Supreme Court in the case of Kaushnuma Begum and others v. New India Assurance Co. do not operate as an excuse from liability in case there is reasonable possibility of anticipating their happening. 9. Learned counsel for the appellant also placed reliance on the judgment of the Honble Supreme Court in the case of Kaushnuma Begum and others v. New India Assurance Co. Ltd. and others, 2001 ACJ 428 to contend that even when front tyre of the jeep burst while in motion, it was held that it was a case of negligence and, therefore, the claimant could not have been denied the compensation. 10. On the basis of the judgment of the Honble Supreme Court the contention of the learned counsel for the appellant was that merely because a cow had appeared all of a sudden which was the cause of the accident and the deceased had made a statement to this effect, it could not absolve the jeep driver of his liability. In the present case, it would be seen that in case the jeep driver was at a normal speed, then he ought to have stopped the jeep rather than to go on the wrong side of the road and hit the scooter. This act of the jeep driver clearly shows that the jeep was being driven rashly and negligently. 11. Hence the findings recorded by the learned Tribunal on issue No. 1 are reversed and it is held that the accident had taken place due to negligence of respondent No. 1. However, no fault can be found with the compensation assessed by the learned Tribunal. Accordingly, this appeal is allowed and the claimant is held entitled to a sum of Rs. 1,67,000/- as assessed by the learned Tribunal. In addition thereto, the claimant shall also be entitled to interest @ 7% p.a. from the date of filing of claim petition till realisation. The liability to pay the compensation shall be joint and several qua respondents. Appeal allowed.