Research › Search › Judgment

J&K High Court · body

2008 DIGILAW 276 (JK)

Union Of India v. Nusrat Khan

2008-07-04

MANSOOR AHMAD MIR

body2008
1. By the medium of this appeal, the appellants have questioned the award/ judgment dated 30th of June, 2006 passed by Motor Accident Claims Tribunal, Budgam, in claim petition No. 80 titled Nusrat Khan & Ors. Vs. UOI and others, whereby and whereunder an amount of Rs.5.50 lacs came to be granted as compensation in favour of the respondent Nusrat Khan (minor) with 6% interest from the date of claim petition. 2. It is necessary to notice the brief facts of the case herein, the womb of which has given birth to the present appeal. 3. It is averred in the claim petition that Nusrat Khan-claimant is the victim of a vehicular accident caused by BSF vehicle at Sanatnagar Bus Stop. She sustained injuries, her right leg was amputated and is disabled forever. It is further averred that accident was out come of rash and negligent driving of the driver of the BSF vehicle. She was a student and the accident spoiled not only her physical frame but also her career. She has to walk on crutches for ever. 4. Appellantsnon-applicants resisted the claim petition on the grounds taken in the written statement and following issues came to be framed: "1. Whether on 04-09-1996 at Sanatnagar chowk, the petitioner No.1, namely Nusrat Khan was hit by a BSF vehicle which was driven by a BSF Jawan C/o respondents which resulted in grievous and permanent disablement of right leg of petitioner No.1 and that the accident took place due to rash and negligent driving of driver? OPP 2. Whether the petitioner No.1 is entitled to claim compensation if so from whom and to what extent? OPP 3. Relief. 5. Petitioner examined Mohammad Sharief, Bashir Ahmad Khan, Ghulam Nabi Matoo, Dr. Najeeb Draboo, Mohammad Amin Khan. Appellants--non-applicants examined S.P.Singh and Shamima Nazir. After scanning the evidence, the tribunal passed the award. 6. The main thrust of the argument of learned counsel for the appellant was that the BSF vehicle was not involved in the accident. Claimant--respondent has not disclosed particulars of the vehicle in the claim petition and at the best it can be termed as hit and run case. Further, he has argued that claimant--respondent has not sustained injuries because of the vehicular accident. Brief resume of the evidence of the claimant. 7. Claimant--respondent has not disclosed particulars of the vehicle in the claim petition and at the best it can be termed as hit and run case. Further, he has argued that claimant--respondent has not sustained injuries because of the vehicular accident. Brief resume of the evidence of the claimant. 7. Witnesses have deposed that BSF vehicle was being driven by its driver rashly and negligently on 4th of September, 2006 near Sanatnagar Bus Stop and hit claimant--Nusrat Khan who sustained injuries on her right leg. She was rushed to hospital and FIR No.428/1996 came to be registered in Police Station Sadder. Right leg of the claimant--respondent was amputated, she is walking on crutches. Her relations had spent a lot of money and has also to spent Rs.2 lacs for implanting an artificial leg. Further a huge amount came to be spent on her treatment. 8. Expert, Dr. Najib Draboo, has categorically stated that the respondent Nusrat Khan was brought as injured in Barzulla, Hospital and was referred to board for examination in order to assess the disability. He was one of the member of the board and he issued certificate of disability--EXPM. He has further deposed that disability has affected her physical frame. She has to purchase an artificial limb, the appropriate cost of which is Rs. 2 lacs. She is not in a position to get a proper match which she could have if she would not have become victim of vehicular accident. She has to go under psychological pain till she survives. Investigating Officer, Ghulam Nabi Matoo, has categorically stated that accident was caused by BSF vehicle. 9. Witnesses of the non-applicants have stated that no BSF vehicle has caused any accident on the said date. Issuewise finding: Issue No.1: 10. There is ample evidence on file led by the claimant that a BSF vehicle was being driven by its driver rashly and negligently on 04.09.1996 at Sanat Nagar and hit the claimant--respondent who sustained injuries and she became permanently disabled. The question is whether without particulars of the driver and vehicle, it could be said that BSF vehicle was involved in the accident. 11. It is not necessary that claimants should have given particulars of the vehicle and particulars of the driver. It is sufficient that if the owner of the offending vehicle is known. The question is whether without particulars of the driver and vehicle, it could be said that BSF vehicle was involved in the accident. 11. It is not necessary that claimants should have given particulars of the vehicle and particulars of the driver. It is sufficient that if the owner of the offending vehicle is known. The non-applicant--appellant has failed to rebut the evidence of the claimant and there is no reason to disbelieve them. Thus, argument of learned counsel for the appellant fails for the following reasons. 12. It is profitable to reproduce Sub-Clause I of Section 165 of the Motor Vehicle Act hereinafter referred to as the Act, herein: "165. Claims Tribunals.--(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both." 13. This provision of law mandates that the jurisdiction of the claims tribunal can be invoked, if following two conditions are satisfied: "(1) The accident has arisen out of use of the motor vehicle(s); and (2) the accident has resulted in bodily injury to the person or to the property of the person who is making the claim or death of the person whose legal representatives are making the claim(s)." 14. While going through the provisions of Section 165 and 166 of the Act, one comes to an inescapable conclusion that the claimant(s) have to prove that accident is outcome of use of motor vehicle. 15. Keeping in view the peculiar circumstances and facts of the case, I am of the considered view that claimants have established rather proved that the accident was outcome of use of BSF vehicle. 16. The aim and object of awarding compensation is a social one and it is the duty of the tribunals to achieve it as early as possible without succumbing to the technicalities and niceties. Apex Court in a case titled as NKV Bros. (P) Ltd. Vs. M. Karumai Ammal and others, reported in 1980 SC 1354 laid down the same principle. The aim and object of awarding compensation is a social one and it is the duty of the tribunals to achieve it as early as possible without succumbing to the technicalities and niceties. Apex Court in a case titled as NKV Bros. (P) Ltd. Vs. M. Karumai Ammal and others, reported in 1980 SC 1354 laid down the same principle. It is profitable to reproduce relevant portion of para-3 of the said judgment herein: "3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes.............." 17. Keeping in view the mandate of Section 165 and 166 of the Motor Vehicles Act and the object of awarding compensation, I am of the considered view that driver is not a necessary party but a proper party. The claim petition can be filed and determined without arraying the driver as a party. 18. High Court of Kamataka in case titled Patel Roadways and anr. Vs. Manish Chhotalal Thakkar and Ors, reported in 2001 ACJ 180, has held as under: "23. But, we do not find any support in Biyabis case, 2001 ACJ 45 (Karnataka) for appellants contention that in the absence of driver as a party, a claim petition is liable to be dismissed as not maintainable or that no pending proceedings can go on, unless and until the driver is impleaded as a party. There is no such proposition in the said decision. It should be noticed that nowhere in Biyabi this court has held that a claim petition is not maintainable if the driver is not impleaded as party. All that the decision lays down is that no finding adverse to the driver can be recorded unless the driver is a party. There is no such proposition in the said decision. It should be noticed that nowhere in Biyabi this court has held that a claim petition is not maintainable if the driver is not impleaded as party. All that the decision lays down is that no finding adverse to the driver can be recorded unless the driver is a party. It is, however, not possible to read more into the said decision or hold that in the absence of the driver, claim petition should be rejected. In fact in Biyabi, this court did not dismiss the claim petition on the ground that driver was not a party. On the other hand, we find that on the facts and circumstances, as K.S.RT.C. vehicles did not have insurance cover and as K.S.R.T.C. proposed to initiate action against erring drivers for negligence on the" basis of finding of negligence recorded by the Tribunal, this court made it clear that no adverse finding can be given nor action be taken against its driver by K.S.R.T.C. for negligence unless the driver was a party to the claim proceedings; and, therefore, the matter was remitted to the Tribunal to serve a notice on the driver and then dispose of the matter. The decision in Biyabi is not, therefore, an authority for the proposition that no claim petition against the owner of a vehicle is maintainable without impleading the driver. Whether driver is to be impleaded or not is left to the discretion of the claimant. While there can be no doubt that impleading a driver will be appropriate, as he is a proper party, it cannot be said that he is a necessary party in a claim against the owner and insurer alone. Any finding of negligence of driver, recorded in a petition against the owner, or in a petition against the owner and insurer, without impleading driver, cannot be held to. be an `adverse finding against the driver nor can it lead to any civil consequences against the driver. Such finding will be only for the purpose of fastening liability on the owner and not to fasten any liability on the driver. However, if the driver is impleaded and notice is issued to him, then civil consequences like making him personally liable will follow on recording a finding of negligence. Such finding will be only for the purpose of fastening liability on the owner and not to fasten any liability on the driver. However, if the driver is impleaded and notice is issued to him, then civil consequences like making him personally liable will follow on recording a finding of negligence. In the circumstances, the contention that claim petition is not maintainable in the absence of the driver of the car is liable to be rejected." 19. The identity of the vehicle is known for the reasons that claimants have proved by leading sufficient evidence that the owner of the vehicle is BSF--Union of India. 20. High Court of Bombay in case titled D. S. Mittle and another Vs. Shantilal R. Shah reported as 2001(2) AIR 4, has held that when there is ample evidence on the file that vehicle of the other party was involved in the accident that is sufficient to hold that the said party is liable. It is apt to reproduce para-3 of the said judgment herein: "3.1 thus, agree with the Tribunal that the evidence on record is enough to hold that it was the vehicle of the opposite party No.1, which was responsible for the accident. Thus, there is no substance in the appeal. It is dismissed with no order as to costs." In the given circumstances, finding returned by the Tribunal on issue No.1 merits to be upheld and, as such, is upheld. Issue No.2; 21. The claimant--injured was admitted in Bone and Joint Hospital, her right leg was amputated. Thereafter, she was referred to SKIMS where she was also admitted and she has spent a lot of money for her treatment. She was examined by a board constituted by Bone and Joint Hospital for assessing her disability. She has to incur Rs. 2 lakhs for implanting an artificial leg. She has gone through mental agony and pain which she has to undergo in future as well. She is also not in a position to get a good match which she could have if the unfortunate accident would not have rendered here disabled. It also affected her studies and spoiled her career and life. 22. The tribunal has awarded Rs. 2 lacs for cost of articial leg, Rs.1 lac under the head treatment, Rs.50,000/- under the head mental pain and Rs. 1 lac under the head proper match. It also affected her studies and spoiled her career and life. 22. The tribunal has awarded Rs. 2 lacs for cost of articial leg, Rs.1 lac under the head treatment, Rs.50,000/- under the head mental pain and Rs. 1 lac under the head proper match. The amount awarded by the tribunal is very meager. No amount came to be awarded under the heads for pain and sufferings in future, the loss of physical frame, for the treatment in future. Dr. Najeeb Draboo has specifically stated that she has to under go some operation(s) in future as well. Unfortunately, the claimant has not challenged the award, therefore, the amount of compensation awarded by the tribunal is upheld. 23. The Tribunal has fallen in error in awarding interest from the date of claim petition but it is payable from the date of award. 24. Accordingly, the appeal is disposed of and award is modified to the extent indicated above. Registry to send down the record along with a copy of this judgment.