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2012 DIGILAW 1158 (MP)

Kapil Patel v. Dinesh

2012-11-06

N.K.MODY

body2012
JUDGMENT : N.K. Mody, J. Being aggrieved by the order dated 9.12.2009 passed by the Tenth Additional M.A.C.T., Ujjain, in the Claim Case No. 22 of 2009 whereby the claim petition filed by appellant was allowed and compensation of Rs. 7,97,493 was awarded, present appeal has been filed. 2. Short facts of the case are that the appellant filed a claim petition before the learned Tribunal alleging that on 20.4.2008 the appellant was going as pillion rider on the motor bike bearing registration No. MP 45 - MB 3195 which was owned by respondent No. 3 and being driven by the respondent No. 5, deceased Rahul. It was alleged that at that time a truck bearing registration No. MP 09 - KB 1950 which was owned by respondent No. 2 and driven by respondent No. 1 dashed the motor bike on which the appellant was pillion rider. It was alleged that because of rash and negligent driving of respondent No. 1 and also motor bike which was being driven by deceased Rahul accident took place in which Rahul passed away on the spot. It was alleged that claim petition filed by the appellant be allowed and compensation be awarded. Claim petition was contested by the respondent No. 4 on various grounds including on the ground that since the accident took place from the back side because of rash and negligent driving of the offending truck which was being driven by respondent No. 1, therefore, respondent No. 4 cannot be held liable for compensation. It was prayed that claim petition be dismissed against respondent No. 2. After framing of issues and recording of evidence, learned Tribunal allowed the claim application and awarded compensation of Rs. 7,97,493, the break - up of which is as under : Medical expenses Rs. 7,09,493 Special diet Rs. 4,000 Transport expenses Rs. 4,000 Loss of wages Rs. 15,000 Miscellaneous Rs. 65,000 3. So far as liability is concerned, the learned Tribunal held that the accident occurred because of rash and negligent driving of respondent No. 1, therefore, the amount awarded shall be recoverable from the respondent Nos. 1 and 2 and exonerated respondent Nos. 3 and 4 against which present appeal has been filed. 4. 15,000 Miscellaneous Rs. 65,000 3. So far as liability is concerned, the learned Tribunal held that the accident occurred because of rash and negligent driving of respondent No. 1, therefore, the amount awarded shall be recoverable from the respondent Nos. 1 and 2 and exonerated respondent Nos. 3 and 4 against which present appeal has been filed. 4. Learned counsel for the appellant has argued at length and submits that the amount awarded by the impugned award is inadequate looking to the injuries sustained by the appellant and the same be enhanced. So far as liability is concerned, learned counsel submits that for the appellant it was a case of joint tortfeasors as the appellant was a pillion rider. It is submitted that since the offending motor bike was owned by respondent No. 3 and insured with respondent No. 4, therefore, learned Tribunal was not justified in exonerating the respondent Nos. 3 and 4 especially in the circumstances of the case when the case of the appellant was that the accident occurred because of rash and negligent driving of respondent Nos. 1 and 5. It is submitted that appeal filed by the appellant be allowed, amount be enhanced and the findings regarding exoneration of respondent Nos. 3 and 4 be set aside and the impugned award be set aside. 5. Mr. Abhay Jain, learned counsel for respondent No. 4, submits that right from the beginning the case of the respondent No. 4 is that the accident occurred because of rash and negligent driving of respondent No. 1. It is submitted that criminal case was registered against respondent No. 1. Learned counsel further submitted that from the evidence adduced by the appellant it is proved by respondent No. 4 that the accident occurred because of rash and negligent driving of the respondent No. 1, therefore, learned Tribunal was justified in exonerating respondent Nos. 3 and 4. Learned counsel submits that the claim has been filed under section 166 of the Motor Vehicles Act, therefore, burden was on the appellant to prove that the deceased Rahul was at fault then only respondent No. 5 and respondent Nos. 3 and 4 could have been held liable for payment of compensation. For this contention reliance is placed on a decision in the matter of Oriental Insurance Co. 3 and 4 could have been held liable for payment of compensation. For this contention reliance is placed on a decision in the matter of Oriental Insurance Co. Ltd. v. Meena Variyal, 2007 ACJ 1284 (SC), wherein the Hon’ble Supreme Court has observed that the victim of an accident or his dependants have an option either to proceed under section 166 of the Act or under section 163 - A of the Act. Once they approach the Tribunal under section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under section 163 - A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle. Further reliance is placed on a decision in the matter of Surender Kumar Arora v. Dr. Manoj Bisla, 2012 ACJ 1305 (SC), wherein the appellants filed claim petition for the death of deceased who was travelling in the vehicle and the evidence of claimants and driver of offending vehicle that vehicle was not being driven in a rash and negligent manner, Hon’ble Apex Court held that since the claimants failed to establish negligence of the driver before the learned Tribunal, therefore, claimants are not entitled for compensation without establishing negligence of the driver in claim application filed under section 166 of the Act. Learned counsel submits that appeal filed by the appellant has no merits, hence the same be dismissed. 6. From perusal of the record it is evident that in the claim petition appellant has alleged that the accident occurred because of rash and negligent driving of the respondent No. 1 and deceased Rahul who was driving the offending, motor bike on which appellant was pillion rider. In the affidavit filed under Order 18, Rule 4, Civil Procedure Code, 1908, appellant has stated that respondent No. 1 and deceased Rahul were at fault. But in the cross - examination appellant has stated that deceased Rahul made all efforts to avoid accident. Appellant has further stated in para 8 of his cross - examination that in the said accident deceased Rahul was not at all at fault. But in the cross - examination appellant has stated that deceased Rahul made all efforts to avoid accident. Appellant has further stated in para 8 of his cross - examination that in the said accident deceased Rahul was not at all at fault. This fact was further established by the witness, namely, Manoj who was eyewitness and stated that deceased Rahul was not at fault. Since claim petition is filed under section 166 of the Motor Vehicles Act, therefore, burden was on the appellant to prove that the accident occurred because of negligence on the part of the respondent No. 1 and also deceased Rahul. Since the appellant failed to prove the negligence on the part of deceased Rahul, therefore, learned Tribunal has rightly exonerated respondent Nos. 3 and 4. So far as amount of compensation is concerned, it appears that the amount awarded is just and proper. 7. In view of this, the appeal filed by the appellant fails and the same stands dismissed. No order as to costs.