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2007 DIGILAW 202 (JK)

Union Of India v. Ab. Aziz Malik

2007-09-26

J.P.SINGH

body2007
1. Facts necessary for the disposal of these appeals and Cross appeals, arising out of Motor Accidents Claims Tribunal, Baramullas judgments i.e. awards recorded in 44 claim petitions, may briefly be stated thus: - 2. An open long Truck owned by GREF bearing registration No. 99E-61149 carrying labourers was on its way to Kaman Post Uri, Kashmir on 8th day of October, 2005 when, at about 9 a.m., an earthquake hit the area, resulting in extensive damage and destruction of life and property. All the labourers, barring four, traveling in the GREF truck wee buried in the debris. The surviving labourers too received injuries. The surviving labourers and the dependents of the labourers who had passed away, filed claim petitions in the Motor Accidents Claims Tribunal, Srinagar, against Chief Engineer, Beacon, Commanding Officer GREF and driver Susheel Kumar, who was driving the GREF vehicle when the earth quake had hit the area and mountain debris slided on the road and area around it. The claim petitions were later transferred for disposal to Motor Accidents Claims Tribunal Baramulla. The claimants attributed the death of, and injuries to the labourers to the rash and negligent driving of GREF Vehicle by Susheel Kumar driver, saying that on noticing the tremors caused by the earth quake, the labourers had told the driver to stop the vehicle, which they say, was plying at a high speed, but the driver did not stop the vehicle and instead jumped out of the vehicle. 3. Union of India, on the other hand, while opposing the claims lodged by the labourers and their dependents, projected that about 1600 people had died in Uri Tehsil itself and most of the damage was caused near the Kaman Post in Uri Tehsil, and area appurtenant thereto. It was projected that in Muzaffarabad Pakistan too, which is nearer to Kaman Post, more than 10,000 people had died and about 3000 houses had been completely damaged because of the killer earth quake. The intensity of the earth quake is stated to be 7.6 at the Richters Scale. Denying that the death of the labourers had been caused because of use of the motor vehicle, it was asserted that the labourers had died because of the havoc created by the earthquake. The intensity of the earth quake is stated to be 7.6 at the Richters Scale. Denying that the death of the labourers had been caused because of use of the motor vehicle, it was asserted that the labourers had died because of the havoc created by the earthquake. Compensation payable to the labourers under the Workmens Compensation Act is stated to have been deposited by Union of India with Labour Commissioners office Baramulla. 4. Out of the pleading of the parties, the Tribunal framed four issues in all the cases and the text of issue no. 1 was suitably modified in all the claim petitions by mentioning the name/s of the deceased/ injured in each claim petition, for whose death/injuries the compensation had been claimed. Issues framed in one of the cases reads thus: 1. Whether on 8th of October, 2005 the vehicle No. 99E61149 (Tipper) owned by respondent no. 3 boarding 60 labourers including the deceased was being plied by Respondent no. 4 at high speed rashly and negligently resulting in an accident near Kaman Post Uroosa at the time when an earthquake also hit the area and in the said accident one Mehboob Hussain who was boarding the vehicle died due to the said accident?..... OPP 2. In case issue No. 1 is proved in affirmative, to what amount of compensation are the petitioners entitled to, from whom and in what proportion?.....OPP. 3. Whether the claim petition is not maintainable in its present form?.....OPP. 4. Relief? 5. All the claim petitions appear to have been taken up for trial and disposal on the basis of evidence recorded in one case and Photostat copies thereof placed on each case because the main issue between the claimants and Union of India was as to whether the accident had occurred because of rash and negligent driving of GREF vehicle by its driver. 6. Whereas the claimants relied upon the testimony of M/S Abdul Rashid Bhat, Mushtaq Hussan, Abdul Hamid Sheikh, Lal Din, Mohammad Yousuf Choudhary SDPO, Uri, and the claimant/s, to support their claims, the Union of India relied upon Susheel Kumar, the driver of vehicle No. 99E-61149 and one Jayant Bhambray, the Commanding Officer, RCC GREF. 7. While evaluating the evidence of the witnesses produced by the parties and deciding issue no. 7. While evaluating the evidence of the witnesses produced by the parties and deciding issue no. 1 in favour of the claimants and against Union of India, the Tribunal held as follows: - "In order to prove this issue, the petitioners have produced five witnesses namely Abdul Rashid Bhat, Mushtaq Hussan, Lal Din, Abdul Hamid and Investigating Officer Choudary Mohammed Yousuf has categorically deposed on oath that as per his investigation the basic reason for the accident was that the driver of the offending vehicle had jumped out from the vehicle when shooting stones were coming down and thus leaving the vehicle moving which resulted in the accident. The officer has taken this view despite some communication which was sent by IGP on the request of the respondents, according to whom the accident was the result of natural calamity and IGP directed the concerned police to investigate the case through some Gazetted officer. The argument to the effect that delay in lodging FIR against driver should discredit the existence of accident in question is not tenable because though lodging of FIR in an accident claim is desirable, but its existence or non-existence can not be made basis for the success of claim filed by a person. In taking this view I am fortified by law laid down by the Honble Rajasthan High Court as reported in AIR 2006 (NOC) 770 (Raj.), 2006 AIHC 1225. Likewise four other persons are those fortunate ones who have escaped death on the date of occurrence and who were present at the place of occurrence. PW Lal Din, Mushtaq Hassan and Abdul Hamid have deposed that they had felt jerks of earthquake and signaled the driver to stop the vehicle but he did not stop the vehicle. Among these Lal Din is the person who admittedly was saved by pulling him out from underneath the unfortunate vehicle by respondents witness Mr. Jayant Bambray C. O. GREF RCC and the said Lal Din has deposed on oath that on feeling jerks of earthquake he asked the driver to stop the vehicle but instead of stopping the vehicle the driver jumped out of it and then this witness Lal Din jumped out of the vehicle along with some other labourers to save his life. It is now well settled that expression arising out of the use of motor vehicle should be given a wider but not a restricted meaning. In 2005 ACJ page 1212 it has been held by Honble High Court of A.P, that where a cleaner dropped a bag from top of the bus which fell on a passenger when he was about to board the bus resulting in his death, the accident arose out of use of motor vehicle as word use also covers the period when the vehicle is not in motion or is stationery. Infect Motor Vehicles Act is a social welfare legislation to extend relief by way of compensation to the victims of accidents caused by use of Motor Vehicles and the provisions of the Act have to be interpreted so as to effectuate this object. No doubt on the fateful day of accident earthquake hit the whole valley especially Uri area but it has been established by the petitioners as discussed above that the driver of the offending vehicle had jumped out of the vehicle and left the vehicle moving which came in the way of unfortunate deceased to desert the vehicle in order to escape death and the statement of the driver to the contrary cannot reserve the above established fact. It is otherwise common sense to note that the persons who jumped out of the vehicle have escaped death by one way or the other and the persons who remained inside the vehicle proved to be unfortunate. Had the vehicle been stationery or stopped properly immediately after jerks or earthquake were felt it would have been natural for all boarded persons to come out of vehicle on road. It is probably because of this reason that overseer Shri Nagi also died inside vehicle as he also got no chance to come out of vehicle mustering not sufficient courage to jump out of moving vehicle as other surviving fortunate persons dared to do. The death of deceased on the day of occurrence is evidenced by the record submitted by the respondents themselves and there is no dispute about the same. Viewed thus, issue No. 1 is proved in favour of petitioners and against the respondents." 8. The death of deceased on the day of occurrence is evidenced by the record submitted by the respondents themselves and there is no dispute about the same. Viewed thus, issue No. 1 is proved in favour of petitioners and against the respondents." 8. Holding the petition(s) of the claimants maintainable and claimants entitled to compensation, the Tribunal awarded compensation to the claimants-respondents, detail whereof is as follows: - S. No File No. Name of the parties Compensation awarded 1 345/30.12.2005 31/25.2.2006 Abdul Aziz Malik & Ors v. UOI and ors Rs. 3,89,000/- 2 351/30.12.2005 24/25.7.2006 Kasim Bee and ors v. UOI and ors Rs. 4,37,000/- 3 333/29.12.2005 23/25.7.2006 Mir Hussain & Ors v. UOI and ors Rs. 4,37,000/- 4 328/29.12.2005 21/25.7.2006 Mohd Hussain & Ors v. UOI and ors Rs. 3,89,000/- 5 348/30.12.2005 32/25.7.2006 Abdul Aziz & Ors v. UOI and ors Rs. 3.89,000/- 6 311/29.12.2005 48/25.7.2006 Hafeeza Begum & Ors v. UOI and ors Rs. 3,89,000/- 7 347/30.12.2005 29/25.7.2006 Mohd Ayub & ors v. UOI & ors Rs. 4,13,000/- 8 349/30.12.2005 56/25.7.2006 Rakina Begum & Ors v. UOI and ors Rs. 4,13,000/- 9 52/25.7.2006 Safreena Begum & Ors vs. UOI and ors Rs. 3.89,000/- 10 326/29.12.2005 47/25.7.2006 Noor Hussain & Ors v. UOI and ors Rs. 4,13,000/- 11 327/29.12.2005 22/25.7.2006 Irshad Begum & Ors v. UOI and ors Rs. 4,37,000/- 12 337/29.12.2005 18/25.7.2006 Kaloo & Ors v. UOI & Ors Rs. 4,67,240/- 13 42/30.12.2005 54/25.7.2006 Taja Begum & Ors v. UOI and Ors Rs. 4,41,560/- 14 332/29.12.2005 19/25.7.2006 Bashir Ahmed & Ors v. UOI and ors Rs. 3,89,000/- 15 350/30 12.2005 17/25.7.2006 Zareena Begum & Ors v. UOI and ors Rs. 4,37,000/- 16 312/29.12.2005 42/25.7.2006 Ali Mohd & Ors v. UOI & ors Rs. 3,89,000/- 17 334/29.12.2005 53/25.7.2006 Mohd Lateef & Ors v. UOI and ors Rs. 4,13,000/- 18 320/29.12.2005 37/25.7.2006 Jalal-Ud-Din Gujjar & Ors v. UOI and ors Rs. 3,89,000/- 19 338/29.12.2005 18/25.7.2006 Sed Hussain & Ors v. UOI and ors Rs. 4,13,000/- 20 331/29.12.2005 20/25.7.2006 Saleema Begum & Ors v. UOI and ors Rs. 4,13,000/- 21 36/07.03.2006 55/25.7.2006 Shahzada Begum & Ors v. UOI and ors Rs. 4,37,000/- 22 317/29.12.2005 50/25.7.2006 Naseema Begum & Ors v. UOI and ors Rs. 4,13,000/- 23 335/29.12.2005 13/25.7.2006 Peer Hussain & Ors v. UOI and ors Rs. 4,13,000/- 24 315/29.12.2005 49/25.7.2006 Mohd. Sadiq & Ors v. UOI and ors Rs. 4,13,000/- 21 36/07.03.2006 55/25.7.2006 Shahzada Begum & Ors v. UOI and ors Rs. 4,37,000/- 22 317/29.12.2005 50/25.7.2006 Naseema Begum & Ors v. UOI and ors Rs. 4,13,000/- 23 335/29.12.2005 13/25.7.2006 Peer Hussain & Ors v. UOI and ors Rs. 4,13,000/- 24 315/29.12.2005 49/25.7.2006 Mohd. Sadiq & Ors v. UOI and ors Rs. 3,89,000/- 25 329/29.12.2005 30/25.7.2006 Mohd Latief & Ors v. UOI and ors Rs. 4,37,000/- 26 323/29.12.2005 40/25.7.2006 Rakeeda Begum v. UOI and ors Rs. 4,13,000/- 27 336/29.12.2005 28/25.7.2006 Naseema Begum & Ors v. UOI & ors Rs. 4,15,880/- 28 310/29.12.2005 6/25.7.2006 Amina Begum & Ors v. UOI and ors Rs. 3.89.000/- 29 309/29.12.2005 45/5.7.2006 Mohd Sadiquee & Ors v. UOI and ors Rs 4,13,000/- 30 37/07.03.2006 25/25.7.2006 Raja Begum & Ors v. UOI and ors Rs. 4.13.000/- 31 313/29.12.2005 43/25.7.2006 Sabora Begum & Ors v. UOI and ors Rs. 3,89,000/- 32 321/29.12.2005 36/25.7.2006 Irsha Begum & Ors v. UOI & ors Rs. 4,13,000/- 33 341/30.12.2005 16/25.7.2006 Om Parkash & Ors v. UOI and ors Rs. 4,13,000/- 34 89/15.04.2006 27/25.7.2006 Akbar Jan & Ors v. UOI and ors Rs. 4,37,000/- 35 339/29.12.2005 14/25.7.2006 Khuma Begum & Ors v. UOI and ors Rs. 4,13,000/- 36 319/29.12.2005 44/25.7.2006 Parveena Begum & Ors v. UOI & ors Rs. 4,37,000/- 9. Aggrieved by the awards of Motor Accidents Claims Tribunal Baramulla, Union of India has preferred these appeals. Dissatisfied with the quantum of compensation awarded by the Tribunal the claimants too have filed the Cross Appeals. 10. With the consent of learned-counsel for the parties these appeals and cross-appeals were heard together in view of the common questions of fact and law raised therein. 11. I have heard learned counsel for the parties, perused the records of the Tribunal, the documents which were produced during the course of hearing of these appeals as also the case law cited by learned counsel for the parties at the Bar. 12. Perusal of the findings of the Tribunal on issue no. 1 reveals that the Tribunal has not addressed itself to the evidence which Union of India had led in the case. The version given by Susheel Kumar, driver of the GREF vehicle, that on noticing a Boulder having rolled down on the road and come in front of the vehicle, he had stopped the vehicle telling the labourers to run for safety. The version given by Susheel Kumar, driver of the GREF vehicle, that on noticing a Boulder having rolled down on the road and come in front of the vehicle, he had stopped the vehicle telling the labourers to run for safety. He too had run for safety and in the meanwhile some of the labourers had taken shelter under the vehicle. It was because of the earth quake that the debris, corning from mountains, which surrendered the road on which the vehicle was plying, had slided down the mountains engulfing the vehicle and area around it, had not been appreciated by the Tribunal for its acceptance or rejection. Though the claimants had been allowed opportunity to cross examine Susheel Kumar, driver, yet no suggestion appears to have been given to him by the claimants that he was driving the vehicle rashly and negligently and had jumped out of the running vehicle, leaving the labourers in lurch. 13. The Tribunal further appears to have ignored that part of the statement of claimants witness, Abdul Rashid Bhat, where he, while under examination-in-chief, had stated that "after having traveled for about half a kilometer from Weak Bridge, tremors had been felt and boulders and earth started sliding down the mountain. The driver was told to stop the vehicle which was proceeding at a high speed. THE VEHICLE STOPPED AND THE DRIVER JUMPED OUT BECAUSE THE VEHICLE WAS UNABLE TO PROCEED AHEAD. THE LABOURERS ALSO JUMPED OUT AND TRIED TO TAKE SHELTER UNDER THE TRUCK...... THOSE WHO WERE TRAVELLING IN THE VEHICLE HAD DIED BECAUSE OF THE EARTH QUAKE. BECAUSE OF WHICH THERE WERE LAND SLIDES IN THE AREA AND THE VEHICLE CAME UNDER THE DEBRIS SLIDING FROM THE MOUNTAINS". 14. Other witnesses of the claimants too were unanimous in saying that on telling the driver to stop the vehicle, it had stopped after proceeding about ten meters ahead. 15. While appreciating the evidence of the witnesses, the aforesaid factor had not been kept in view by the Tribunal. It had further failed to take into consideration the intensity of the earth quake, its duration and the havoc which it had created in the area, which had been sought to be demonstrated by Union of India before the Tribunal by producing the photograph of the spot where the vehicle had come under the debris of mountains. It had further failed to take into consideration the intensity of the earth quake, its duration and the havoc which it had created in the area, which had been sought to be demonstrated by Union of India before the Tribunal by producing the photograph of the spot where the vehicle had come under the debris of mountains. The Tribunal did not take into consideration an important factor that the road on which GREF vehicle had been plying was in a mountainous range where there were huge mountains on both sides of the road, debris where from had come on the road because of the earthquake. 16. Inspector General of Police, Kashmir Zones communication No. CRS/321/06/1084 dated 15"1 June, 2006, too appears to have escaped notice and consideration of the Tribunal. The Inspector General of Police, Kashmir Zone, while commenting upon the investigation of FIR no. 17 of 2006 registered under Section 279/304 RPC at Police Station Uri, Baramulla, had commented as follows: NO.CRS/321/06/10804 DATED: 15.6.2006 To The Dy. Inspector General of Police, Range CKR, Srinagar. Sub: Investigation of case FIR No. 17/2006 u/s 279,304-A RPC of P/S Uri Baramulla. Sir, This office has received a letter bearing No. 1246/3/Court/GS (IS) dated 02/06/2006 from Officer Commanding 53 Road Construction Coy (GREF) wherein it is stated that the investigation of the aforementioned case has not been carried out properly. The incident had occurred due to earthquake and there was no fault of tipper driver of GREF. The GREF authorities have further stated that the investigating officer was harassing the GREF employee and was not following due procedure of law. The relevant papers have been examined, (sic) appears prima-facie that this does not make out case u/s 279, 304-A RPC as the occurrence h(sic) occurrence had occurred due to reasons beyond t(sic) control of alleged accused. The plea taken by GREF authorities needs a consideration. You may look into the case and get the investigation of the case conducted through Gazetted Officer and furnish the progress report to this office. Sd/- For Inspector General of Police Kashmir Zone 17. The Tribunal further appears to have not noticed an important factor in the case that the FIR had been registered after filing of the claim petitions and about five and a half months after the area had been struck by the earthquake. 18. Sd/- For Inspector General of Police Kashmir Zone 17. The Tribunal further appears to have not noticed an important factor in the case that the FIR had been registered after filing of the claim petitions and about five and a half months after the area had been struck by the earthquake. 18. The case put forward by the claimants that the driver had jumped out of the vehicle giving no chance to the labourers, who are now either dead or injured, and the defence raised by Union of India that the labourers had died and injured because of the earth quake and not because of any negligence or omission on the part of Union of India, or for that matter because of the rash and negligent driving of GREF vehicle by Susheel Kumar, driver, does not appear to have been properly addressed to and decided by the Tribunal in accordance with law. 19. Union of Indias plea that it was because of an act of God that the accident had occurred and that it was not liable for any action in tort, because the act complained of was "vis-major" which would absolve the Union of India and its driver of any liability whatsoever, had neither been addressed to nor dealt with requisite elaboration needed for accepting or rejecting the plea of Union of India. 20. In view of the above short comings noticed in Tribunals appreciation of evidence and recording findings against the Union of India, without addressing to and dealing with its evidence and defence, the findings recorded by the Tribunal on issue no. 1 cannot be sustained. 21. Before allowing the claim petitions a positive finding was required to be recorded and that too after appreciating the evidence of the parties that the death of and injuries to the labourers had not been caused because an act of God and that it was because of the negligence of the driver who had jumped out of the running vehicle leaving no chance to the labourers to run for safety. This has, however, not happened. 22. This has, however, not happened. 22. During the course of hearing of these appeals, learned counsel for Union of India argued that the Court should take judicial notice of the factors like, intensity of the earth quake, its duration as also of the devastation which the earth quake had caused in the area giving no time to any one to run for safety. I am, however, not inclined to do that because such a course may cause prejudice to the claimants. 23. Considering all the facts and circumstances of these cases, I am of the view that it would be just and proper to give another opportunity to the parties to place their viewpoint before the Tribunal once again by producing such material and leading such evidence, as they may like so to do and to remand the case to the Tribunal for appreciation of evidence afresh in accordance with law, keeping in view the observations made in this order. 24. Findings of the Tribunal on issue no. 1 are accordingly set aside in all the claim petitions. 25. For all what has been said above, judgments impugned in these appeals are set aside and the claim petitions remanded to the Motor Accidents Claims Tribunal Baramulla, for its decision afresh, after affording opportunity to the parties to produce any fresh material or evidence and discussing the evidence so produced along with the evidence already on records, bearing in mind the principles governing appreciation of evidence in trial of civil cases, in accordance with law. 26. Parties through their counsel are directed to appear before the Tribunal on 30th of October, 2007. The Tribunal shall expedite the conclusion of proceedings before it and shall take up the cases every week to ensure their conclusion within a period of four months. 27. In view of setting aside of the impugned judgments, Cross Appeals are rendered infructuous. 28. Cross Appeals and CMPs filed in the appeals are accordingly disposed of. 29. A copy of this judgment be placed on each file and records be sent back to the Motor Accidents Claims Tribunal Baramulla forthwith so as to reach the Tribunal before 30th of October, 2007.