Dhruv Nath Tewari and Others v. Guldesh Kumar and Others
2011-07-20
DEVI PRASAD SINGH, SATISH CHANDRA
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DigiLaw.ai
Devi Prasad Singh and Satish Chandra, JJ - Heard learned Counsel for the appellant, learned Counsel for the respondents and perused the record. 2. The present appeal under section 173 of the Motor Vehicles Act has been preferred against the judgment and order dated 13.11.2007, passed by the Motor Accident Claims Tribunal/IVth Additional District Judge, Faizabad, in Claim Petition No. 166 of 2005, Dhruv Nath Teivari v. Guldish Kumar and others, whereby the Tribunal has rejected the claim petition on the ground that the factum of accident has not been proved. 3. Brief facts emerges from the material on record and the argument advanced by the learned Counsel for the appellants is that deceased Sushila Tewari, was_A.N.M. (mid-wife) in health department, Poora Bazar, District-Faizabad. On 28.5.2005, she was going to resume her duty by Vikram No. U.P.-42-T/3513 at about 8.00 a.m. The said vikram was being driven rashly and negligently. All of a sudden, the vikram turned over and the accident took place, in consequence thereof, Smt. Sushila Tewari sustained serious injuries and later on succumbed to the injuries. The claimants approached the Tribunal for payment of compensation. Before the Tribunal, it was stated that the deceased working on the post of A.N.M. was drawing salary of the tune of Rs. 8600/-. It is further stated that the factum of accident was reported to the Kotwali Ayodhya, District-Faizabad. Before the Tribunal, another document has been filed, which reveals that Jitendra Kumar Singh, Chowki in-charge of Darshan Nagar, Police Station-Kotwali Ayodhya, Faizabad, has submitted a report with regard to accident and stated that in Kotwali Ayodhya, information with regard to accident has been recorded under Rapat No. 19 at 9.35. Sub-Inspector informed that no police action is required since the death has occurred because of accident. The report made by Shri Dhruv Tewari is Ext. 39-Ga 1/1. According to the High School certificate, the date of birth of Sushila Tewari is 1 June, 1956. The Tribunal has framed the following issues : (1) Whether on 28.5.2005 at about 8.00 a.m., the deceased was travelling in the Temp Vikram No. U.P.-42-T/3513 and because of rash and negligent driving of the vehicle in question, accident occurred near village Budha Keshavpur and in the said accident Smt. Sushila was a passenger and succumbed to the injuries. (2) Whether the driver was having valid driving licence.
(2) Whether the driver was having valid driving licence. (3) Whether the vehicle was insured with the insurance company. (4) What amount of compensation, the petitioner is entitled. 4. With regard to issued No. 1, the Tribunal was impressed with the alleged fact that no first information report was lodged though occurrence was informed and Dhruv Nath Tiwari has seen the place of occurrence after three days and held that the appellants have failed to prove the factum of accident. 5. P.W. 2, Shri Ashok Kumar has stated that he has seen the occurrence and the deceased was in the vehicle in question, when the accident took place and later on he succumbed to the injuries. So far as first information report is concerned, on 30.5.2005, Dhruv Nath Tiwari had communicated to the Kotwali Ayodhya with regard to accident in question. The factum of accident was enquired by Jitendra Kumar, Sub-Inspector, In-charge of Chowki Darshan Nagar, with information that no police action is required since it is a matter of accident. The application made by Shri Dhruv Nath Tiwari to the police and the subsequent investigation by Sub-Inspector-Jitendra Kumar, are beyond doubt proved that the accident occurred on 28.5.2005. 6. In the said accident while travelling in the tempo in question, Smt. Sushila sustained injury and later on succumbed to the injuries. Learned Tribunal has failed to appreciate this fact in right perspective. Motor Vehicles Act is an independent self-contained Act and applied in itself. F.I.R. is lodged or not lodged is not material and in case the complaint establish by cogent and reliable evidence that the deceased or person concerned suffered in an accident, the Court cannot throw out only on the ground that no F.I.R. has been lodged. 7. In the present case, it has not been disputed that the factum of accident was communicated by Shri Dhruv Nath Tiwari and after due investigation Sub-Inspector Jitendra Nath had submitted a report affirming the accident. Accordingly, issue No. 1 decided by the Tribunal is not sustainable and the finding is reversed holding that the appellants have proved the factum of accident caused by the tempo in the manner pleaded on record. So far as issue No. 2 is concerned, the finding has been recorded that there was valid driving licence with the driver.
Accordingly, issue No. 1 decided by the Tribunal is not sustainable and the finding is reversed holding that the appellants have proved the factum of accident caused by the tempo in the manner pleaded on record. So far as issue No. 2 is concerned, the finding has been recorded that there was valid driving licence with the driver. With regard to issue No. 3, finding has been recorded that the vehicle was insured but since the accident did not occur, the insurance company shall not be liable to pay compensation. 8. Now coming to question with regard to quantum of compensation. The deceased was aged about 49 years and salary was Rs. 9600/-. Keeping in view the age of deceased as 49 years multiplier of 13 would be applied. Salary of the deceased admittedly was Rs. 9600/-. After deducting 1/3 in lieu of personal expenses, it comes to Rs. 6,400/- per month, Rs. 9,500/- may be added towards funeral expenses, loss of estate and loss of consortium. By adding funeral expenses of Rs. 2,000/-, loss of consortium Rs. 5,000 and loss of estate Rs. 2,500/-, now the total amount comes to Rs. 10,07,900/- (Ten lacs seven thousand and nine hundred). Accordingly, the appellants shall be entitled for compensation to the extent of Rs. 10,07,900/- (Ten lacs seven thousand and nine hundred) alongwith interest at the rate of 6% from the date of filing of the claim petition before the Tribunal. 9. Accordingly, the appeal is allowed. The impugned order dated 13.11.2007 passed by the Tribunal is set aside holding that the appellants shall be entitled for compensation of Rs. 10,07,900/- (Ten lac seven thousand and nine hundred) alongwith interest at the rate of 6% from the date of filing of the claim petition. No order as to costs. 10. Insurance company is directed to deposit the amount within three months before the Tribunal from today and the Tribunal shall release the same in favour of claimants-appellants immediately in terms of present judgment. No cost. F.A.F.O. Allowed.