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Punjab High Court · body

2007 DIGILAW 1996 (PNJ)

Gurdeep Kaur v. Tarsem Singh

2007-11-16

SHAM SUNDER

body2007
Judgment Sham Sunder, J. 1. This judgment shall dispose of the aforesaid two appeals, arising out of the common award dated 7.10.1992, rendered by the Motor Accidents Claims Tribunal, Karnal, whereby the Claim Petition No. 27 of 1989/103 of 1992 was partly allowed and compensation, in the sum of Rs. 25,000, with interest at the rate of 12 per cent per annum from the date of filing the same was granted whereas Claim Petition No. 26 of 1989/104 of 1992 was dismissed. 2. The facts of Claim Petition No. 27 of 1989/103 of 1992 are that on 2.5.1989, the claimant No. 3, namely, Vikram Singh, was driving tractor No. HYM 651, attached with trolley loaded with wheat and was going from Ambala towards Nilokheri for unloading the same at the Nilokheri Grain Market and when he reached near Nilokheri, a signal was given for turning the tractor towards the right hand side of the road. The tractor had crossed the road and reached the unmetalled portion of the road when the bus No. DEP 9640, being driven rashly and negligently by Tarsem Singh, respondent No. 1, came from the opposite direction, i.e., from the side of Karnal and hit the tractor-trolley in the middle, as a result whereof, the hook of the trolley got broken and the tractor was dragged to some distance. In that process, Sukhdev Singh one of the occupants of the trolley fell down on G.T. Road and was crushed under the wheels of the aforesaid bus, resulting into his death at the spot. It was stated that Sukhdev Singh was an agriculturist and a dairy farmer aged about 45 years at the time of his death and his monthly income was Rs. 3,000. Gurdeep Kaur, widow; Shingara Singh and Vikram Singh, sons of Sukhdev Singh deceased, being his legal heirs, claimed compensation in the sum of Rs. 5,00,000 on account of the death of Sukhdev Singh, as they stated that they were dependent upon him. 3. In Claim Petition No. 26 of 1989/104 of 1992, Gurdeep Kaur, widow of Sukhdev Singh deceased, claimed compensation in the sum of Rs. 20,000 on account of the damage caused to the tractor-trolley in the aforesaid accident. 4. Both the claim applications were contested by the respondents. In the joint written statements, filed in both the cases separately, the date, time and place of accident were admitted. 20,000 on account of the damage caused to the tractor-trolley in the aforesaid accident. 4. Both the claim applications were contested by the respondents. In the joint written statements, filed in both the cases separately, the date, time and place of accident were admitted. It was denied that the accident took place on account of the rash and negligent driving of the bus referred to hereinbefore by Tarsem Singh, respondent No. 1, driver thereof. On the other hand, it was stated that the bus was being driven at a moderate speed on the left side of the road. It was further stated that the accident took place due to the negligent driving of the driver of the tractor-trolley, as he suddenly turned the same towards the wrong side, as a result whereof, it struck with the bus. It was further stated that Tarsem Singh, respondent No. 1, driver of the bus tried to avoid the accident but in vain. It was pleaded that the claimants had no cause of action to file the claim petitions and that the claim petitions were not maintainable. It was further pleaded that the claim petitions were bad for mis-joinder and non-joinder of necessary parties. It was further pleaded that the claimants in Claim Petition No. 103 of 1992 (old No. 27 of 1989) were estopped from filing the same by their own act and conduct. The remaining averments were denied. 5. On the pleadings of the parties, the following consolidated issues were framed in both the claim petitions by the Tribunal: "(1) Whether Gurdeep Kaur and two others, i.e., the claimants in M.A.C.T. Case No. 27 of 1989 are the only legal heirs of Sukhdev Singh deceased? OPP (2) Whether the accident was caused on account of rash and negligent driving of bus No. DEP 9640 by its driver? OPP (3) Whether the accident was caused on account of rash and negligent driving of the tractor-trolley by its driver? OPP (4) To how much amount of compensation are the claimants in M.A.C.T. Case No. 27 of 1989 entitled to get and from whom? OPP (5) To how much amount of compensation is the claimant in M.A.C.T. Case No. 26 of 1989 entitled to get and from whom? OPP (4) To how much amount of compensation are the claimants in M.A.C.T. Case No. 27 of 1989 entitled to get and from whom? OPP (5) To how much amount of compensation is the claimant in M.A.C.T. Case No. 26 of 1989 entitled to get and from whom? OPP (6) Whether Gurdeep Kaur alone was entitled to get compensation for the damage caused to tractor No. HYM 651?OPP (7) Whether claimants have no cause of action to get the compensation in these cases? OPP (8) Whether the claim petitions are not maintainable in the present form? OPP (9) Whether the claim petitions are bad on account of mis-joinder of parties or on account of non-joinder of necessary parties? OPP (10) Whether the claimants in M.A.C.T. Case No. 27 of 1989 were estopped from filing the claim petition on account of their own acts and conduct? OPP (11) Relief." 6. The parties led evidence. After hearing the counsel for the parties and on going through the evidence on record, the Tribunal came to the conclusion that the bus was not being driven by Tarsem Singh, respondent No. 1, rashly and negligently. The Tribunal further held that the accident took place on account of the rash and negligent driving of the tractor-trolley by the driver thereof. Ultimately, the Tribunal came to the conclusion that the claimants in Claim Petition No. 103 of 1992 (old No. 27 of 1989) were only entitled to a sum of Rs. 25,000 with interest at the rate of 12 per cent per annum on account of no fault liability. Claim Petition No. 104 of 1992 (old No. 26 of 1989) in which the compensation had been claimed with regard to the damage caused to the tractor-trolley in the accident, referred to herein before was dismissed. 7. Feeling aggrieved against the award dated 7.10.1992, the instant appeals were filed by the claimants-appellants. 8. I have heard learned counsel for the parties and have gone through the record of the case carefully. 9. The counsel for the appellants vehemently contended that the Motor Accidents Claims Tribunal was wrong in coming to the conclusion that Tarsem Singh, driver of the bus was neither rash nor negligent in driving the bus at the relevant time, resulting into accident and leading to the death of Sukhdev Singh, one of the occupants of the tractor-trolley. 9. The counsel for the appellants vehemently contended that the Motor Accidents Claims Tribunal was wrong in coming to the conclusion that Tarsem Singh, driver of the bus was neither rash nor negligent in driving the bus at the relevant time, resulting into accident and leading to the death of Sukhdev Singh, one of the occupants of the tractor-trolley. He further contended that sufficient substantive evidence has been led by the claimants to prove that Tarsem Singh, driver of the bus was rash and negligent in driving the same, as a result whereof, the accident took place leading to the death of Sukhdev Singh, one of the occupants of the trolley attached to the tractor but the same was ignored by the Tribunal without any sound reason. The contention of learned counsel for the appellants in this regard, appears to be correct for the reasons to be recorded hereinafter. The principle of law laid down in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal, 1980 ACJ 435 (SC), was to the effect that the law is well settled that in a claim petition under the Motor Vehicles Act, the evidence should not be scrutinized in the manner as is done in a civil or in a criminal case. The proceedings before the Tribunal, are of the nature of summary enquiry, whereas in a criminal case, the rule is of proof beyond reasonable doubt and in a civil case the rule is preponderance of probabilities. If there is some evidence before the Claims Tribunal to prove a fact, no nicety, doubt or suspicion should weigh with it, in deciding a motor accident claim case. In United India Insurance Co. Ltd. v. Kamla Rani, 1997 ACJ 1081 (P&H), the principle of law laid down was to the effect that the Tribunals established under Motor Vehicles Act, are not governed by the rules of procedure envisaged by the Civil Procedure Code. The Tribunals are required to evolve their own procedure to meet the ends of justice based on the principles of justice, equity and good conscience. The evidence led in these cases is required to be scrutinized in view of the principle of law laid down in the aforesaid authorities. 10. Vikram Singh, the son of Sukhdev Singh, PW 4, was the driver of the tractor- trolley on 2.5.1989 when the accident took place. The evidence led in these cases is required to be scrutinized in view of the principle of law laid down in the aforesaid authorities. 10. Vikram Singh, the son of Sukhdev Singh, PW 4, was the driver of the tractor- trolley on 2.5.1989 when the accident took place. It is evident from his statement that on the relevant day his father Sukhdev Singh was sitting in the trolley whereas 5/7 other persons forcibly became occupants of the same and when he reached near bus stand of Nilokheri, a signal for taking a turn towards the right hand side was given. Thereafter, he crossed G.T. Road towards the right hand side. When he had crossed the road completely, bus bearing No. DEP 9640, came from the side of Delhi, which was being driven at a very fast speed, rashly and negligently. It is further evident from his statement that the bus struck against the tractor-trolley, as a result whereof, the trolley got detached from the tractor on account of the impact of accident, Sukhdev Singh, fell down on the ground. The wheels of the said bus crushed the head of Sukhdev Singh and he died at the spot. It is further evident from his statement that the tractor-trolley was also badly damaged. He lodged F.I.R., Exh. PB. It was further stated by him that the accident took place on account of the fault of the bus driver. Even during the course of cross-examination he stated that the tractor-trolley had completely crossed G.T. Road and was not on G.T. Road at the time of accident. The presence of Vikram Singh at the time of accident is further corroborated from copy of the F.I.R., Exh. PB, which was lodged by him at 10.40 a.m., i.e., immediately thereafter (the accident). No doubt, Vikram Singh, PW 4, is son of Sukhdev Singh deceased. The mere fact that he is related to the deceased, in itself, is not sufficient to disbelieve his statement, particularly, when his presence at the time of accident was duly established. There was absolutely no reason on the part of the said witness to depose falsely. Not only this, it is evident from the copy of the mechanical report, Exh. PG of bus No. DEP 9640, which was involved in the accident that the brake of the same was on the second paddle. There was absolutely no reason on the part of the said witness to depose falsely. Not only this, it is evident from the copy of the mechanical report, Exh. PG of bus No. DEP 9640, which was involved in the accident that the brake of the same was on the second paddle. It means that the brake of the bus was not in a proper working condition and it was defective. There is no evidence on the record that before leaving Delhi for the destination, the brake of the bus was got checked from the mechanic properly by the driver thereof. It was also held in Godabarish Satpathy v. Brundaban Mishra, 1984 ACJ 59 (Orissa), that when there was defect in brake, i.e., when there was a case of brake failure, the maxim res ipsa loquitur was applicable and there is presumption that the accident was caused due to negligence of the driver of the vehicle. Not only this, it was admitted by Tarsem Singh, driver, RW 1 that F.I.R. copy whereof is Exh. PB in relation to the accident aforesaid was registered against him and he was facing trial in a court of law, it is prima facie safe to hold that accident occurred on account of his rash and negligent act. The evidence of Vikram Singh, PW 4, duly corroborated by the mechanical report, Exh. PG, which was prepared after the accident, clearly proved that accident took place on account of rash and negligent driving of the bus by Tarsem Singh, respondent No. 1, its driver. Tribunal was wrong in holding otherwise. The contention of the counsel for the appellants carries substance and is accepted. 11. The counsel for the respondents, however, submitted that the Tribunal was right in coming to the conclusion that the driver of the bus was neither negligent nor rash in driving the same when the accident took place. He further contended that in the F.I.R. copy whereof is Exh. PB, Vikram Singh stated that he was turning the tractor-trolley towards the right side of the road when the accident took place, whereas in his statement while appearing as PW 4, he stated that he had already crossed G.T. Road towards Nilokheri and had reached the unmetalled portion of the same, when the accident took place. PB, Vikram Singh stated that he was turning the tractor-trolley towards the right side of the road when the accident took place, whereas in his statement while appearing as PW 4, he stated that he had already crossed G.T. Road towards Nilokheri and had reached the unmetalled portion of the same, when the accident took place. He further contended that on account of inconsistency between the statement of Vikram Singh, PW 4 and the F.I.R., Exh. PB, the Tribunal was right in coming to the conclusion that it was driver of the tractor-trolley who was rash or negligent resulting into accident, leading to the death of Sukhdev Singh. He further contended that even the photographs placed on record clearly showed that the tractor-trolley had just turned towards the right side of G.T. Road and had not crossed the same when the accident took place. As stated above, the strict principles of Civil Procedure Code and the Evidence Act, are not applicable to the enquiries required to be made in motor accident claim cases. The Tribunal is required to evolve its own procedure, which may be, in consonance with the broad principles of natural justice. The statement of Vikram Singh, PW 4, on solemn affirmation, before the Tribunal, constitutes substantive evidence, whereas the F.I.R. copy whereof Exh. PB, was his previous statement and not substantive evidence, which could only be used for the purpose of contradiction or corroboration. In the substantive evidence Vikram Singh stated that he had already crossed G.T. Road towards Nilokheri and reached the unmetalled portion of the same. Inconsistency between his statement and the F.I.R., Exh. PB, on this aspect of the matter, could certainly be ignored. The substantive evidence before the Tribunal was required to be taken into consideration. Even it can be said that inconsistency in Exh. PB, might have occurred on account of mental condition of Vikram Singh, PW 4, immediately after the accident. Since father of Vikram Singh had died in the accident in question, he must be mentally disturbed and puzzled. In such a situation, his mental condition could be well imagined. If in that state of mental condition he could not recite some fact in the F.I.R. or recited the same in the manner which was in contradiction to his substantive evidence that could be ignored. In such a situation, his mental condition could be well imagined. If in that state of mental condition he could not recite some fact in the F.I.R. or recited the same in the manner which was in contradiction to his substantive evidence that could be ignored. In Virat Soma v. Mohan Lal, 1994 ACJ 432 (P&H), the principle of law laid down was to the effect that the F.I.R. is often lodged in haste and the same cannot be a substitute for the evidence giving the exhaustive version of the occurrence. The statements before the Tribunal are made on solemn affirmation, whereas the F.I.R. is never lodged on solemn affirmation. The principle of law laid down in the said authority is fully applicable to the facts of the present case. The Tribunal also took into consideration the photographs and the site plan, Exh. PM, while coming to the conclusion that the accident took place on account of rash and negligent driving of the driver of the tractor-trolley. It may be stated here that no significance could be attached to the photographs, as it is a matter of common knowledge that after the accident the vehicles do not remain in the same position in which the same was at the time of accident. Exh. PM, is only a rough site plan. The author of the same was not produced to verify the authenticity of the same. No doubt, Tarsem Singh, respondent No. 1, while appearing as RW 1, stated that when the bus was at a distance of 4/5 ft, the tractor-trolley had turned towards the right side for crossing G.T. Road, without giving any signal and the accident took place on account of his negligence. In case, the accident had taken place on account of negligence of the driver of the tractor-trolley, Tarsem Singh, RW 1, could certainly make a statement before the police immediately after the same that he had been falsely implicated. He could also make a complaint to the superior police officers in case, he was not heard by the junior police officers regarding his false implication. He could also make a complaint to a superior officer of his department immediately on reaching Delhi that the accident had taken place on account of rash and negligent driving of the driver of the tractor-trolley and he was falsely implicated in a criminal case. He could also make a complaint to a superior officer of his department immediately on reaching Delhi that the accident had taken place on account of rash and negligent driving of the driver of the tractor-trolley and he was falsely implicated in a criminal case. He, however, did not adopt any such method. He kept mum throughout and, ultimately, made his statement as RW 1, for the first time before the Tribunal on 14.3.1991, i.e., after two years of the accident. The Tribunal, in my opinion, was not right in coming to the conclusion that the accident took place on account of rash and negligent driving of the driver of the tractor-trolley. The Tribunal did not appreciate the evidence produced on record with regard to the rash and negligent act of the driver of the bus in a proper manner, as a result whereof, miscarriage of justice occasioned. Reliance on the photographs, site plan and the statement of Tarsem Singh, RW 1, by the Tribunal was, therefore, misplaced. The submission of the counsel for the respondents being without merit, must fail and the same stands rejected. 12. It was next contended by counsel for the respondents that Vikram Singh was not holding any valid driving licence at the time of accident which clearly showed that he was not competent to drive the tractor- trolley and as such, the accident took place on account of his rash and negligent act. During the course of cross-examination, it was stated by Vikram Singh, PW 4, that he had learners licence at the time of accident, which was lost. He further stated that he obtained the driving licence through some lawyer of Karnal. Since he lost the licence, he could not produce the same. In case, the respondents had any doubt that Vikram Singh was not holding a valid driving licence at the relevant time, they could summon the record of Licensing Authority, Karnal, where from he had obtained the licence. From the record it could be proved by the respondents as to whether he was holding a valid driving licence or not. It is evident from Matriculation examination certificate of the Board of School Education, Haryana of Vikram Singh that he was born on 8.8.1970. From the record it could be proved by the respondents as to whether he was holding a valid driving licence or not. It is evident from Matriculation examination certificate of the Board of School Education, Haryana of Vikram Singh that he was born on 8.8.1970. It means that at the time of accident on 2.5.1989, he was about 18 years and 9 months of age and, therefore, was eligible to hold the driving licence as per the provisions of the Motor Vehicles Act. In Suleman Rehiman Mulani v. State of Maharashtra, 1968 ACJ 51 (SC), it was held that the mere fact that the driver was not holding a valid licence when he knocked down a pedestrian, did not mean that he was rash or negligent in driving the vehicle. The principle of law laid down in the said authority is applicable to the facts of the present case. The submission of the counsel for respondents, therefore, being without any merit, must fail and the same stands rejected. Since it has been held that driver of the bus, respondent No. 1, was rash and negligent in driving the bus, as a result whereof, the accident took place, leading to the death of Sukhdev Singh deceased, the findings recorded by Claims Tribunal on issue Nos. 2 and 3 being incorrect are reversed. 13. Coming to the next question, as to whether the appellants are entitled to any compensation on account of the death of Sukhdev Singh, it may be stated here that it is proved from the evidence of Gurdeep Kaur, PW 1, the widow of Sukhdev Singh deceased that he was an agriculturist. The claimant Gurdeep Kaur, PW 1, stated that Sukhdev Singh was owner of 4 acres of land and his sisters were owners of 12 acres of land. She further stated that he was cultivating the entire land and earning Rs. 3,000 per month. According to PC jamabandi, Sukhdev Singh, deceased was shown to be in possession of 1/4th share of 219 kanals of land, which comes to about 7 acres. According to the post-mortem report, Exh. PA, the age of the deceased was 55 years. Since Sukhdev Singh was managing and cultivating about 7 acres of land as per the jamabandi PC, the service rendered by him in skilfully managing and cultivating the land could be estimated in terms of money at Rs. 3,000 per month. According to the post-mortem report, Exh. PA, the age of the deceased was 55 years. Since Sukhdev Singh was managing and cultivating about 7 acres of land as per the jamabandi PC, the service rendered by him in skilfully managing and cultivating the land could be estimated in terms of money at Rs. 3,000 per month. He could not be merely treated as a servant or a labourer. No doubt, the land remained intact, even after death of Sukhdev Singh. His monthly income, therefore, could be said to be Rs. 3,000. He must be keeping a sum of Rs. 1,000 towards his personal maintenance, thereby leaving a sum of Rs. 2,000 towards the maintenance of the appellants. It is a fit case in which the multiplier of 8 should be applied. The appellants are also entitled to funeral expenses in the sum of Rs. 2,000. The appellants are thus held entitled to compensation in the sum of Rs. 1,94,000 (Rs. 2,000 x 12 x 8 + Rs. 2,000 as funeral expenses) in equal shares with interest at the rate of 9 per cent per annum from the date of filing the claim petition until the realisation of the amount excluding Rs. 25,000 with interest already granted by the Tribunal. The findings of the Tribunal on issue No. 4 are modified in the manner stated above. 14. Coming to the compensation in respect of damage caused to the tractor-trolley in the said accident, it may be stated here that the bills Exh. P1 to Exh. P4 have been proved by Ram Kumar, PW 2 and Ram Rattan, PW 3 in their evidence. The tractor was completely damaged. Total amount of Rs. 13,812.03 was spent for the repair of the tractor-trolley and for the purchase of spare parts, required for repair of the said tractor-trolley. Since it has been held that the driver of the bus was rash and negligent in driving the same, as a result whereof, the accident took place and the tractor-trolley were damaged, Gurdeep Kaur, widow of the deceased was entitled to compensation in the sum of Rs. 13,812.03 in Claim Petition No. 26 of 1989. The findings of the Claims Tribunal on issue Nos. 5 and 6 to the contrary are reversed. 14-A. In view of the reasons recorded herein before, both the appeals are accepted with costs. 13,812.03 in Claim Petition No. 26 of 1989. The findings of the Claims Tribunal on issue Nos. 5 and 6 to the contrary are reversed. 14-A. In view of the reasons recorded herein before, both the appeals are accepted with costs. The award dated 7.10.1992 in Claim Petition No. 103 of 1992 (old No. 27 of 1989) is modified to the extent that the claimants-appellants are granted compensation in the sum of Rs. 1,94,000 (Rs. 2,000 x 12 x 8 + Rs. 2,000 as funeral expenses) with interest at the rate of 9 per cent per annum in equal shares from the date of filing the said petition till realisation of the amount. Amount of Rs. 25,000 with interest already awarded by the Tribunal in this petition shall stand adjusted against the amount finally awarded. 15. The award in Claim Petition No. 104 of 1992 (old No. 26 of 1989) is set aside and the compensation in the sum of Rs. 13,812.03 with interest at the rate of 9 per cent per annum from the date of filing the claim petition till realisation of the amount is awarded in favour of Gurdeep Kaur appellant. 16. All the respondents shall be jointly and severally liable to pay the amount of compensation awarded in both the petitions.