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2012 DIGILAW 1628 (ALL)

Sumitra Kaur and Another v. New India Assurance Company Ltd. and Another

2012-07-20

DEVI PRASAD SINGH, VISHNU CHANDRA GUPTA

body2012
Vishnu Chandra Gupta, J.— The present appeal filed under Section 173 of Motor Vehicles Act 1988 has been preferred against the impugned award dated 20.4.2004 passed by Motor Accident Claim Tribunal/Additional District Judge Court NO.-4, Faizabad in Claim Petition No.-173 of 2003. Inspite of revision of list owner's Counsel has not appeared before this Court. We are deciding the case after providing opportunity to learned Counsel for the appellants as well as learned Counsel for the respondent. Husband of claimant no.-1 Smt. Sumitra Kaur, late Sri Avtar Singh and respondent Yashpal Singh the owner of Motorcycle who were going by motorcycle no.- UP 42-E 6341 on 09.6.2003 at about 11:00 A.M. On reaching near Ved Mandir, Mohalla Ramkat Ayodhya, Faizabad all of a sudden a cow came in front of the motor cycle and in consequence thereof the motorcycle fell down, causing serious injuries to Sri Avtar Singh and Yashpal Singh also suffered injuries. Avtar Singh was admitted to Rajkiya Sri Ram Hospital Ayodhya, District Hospital Faizabad from where he was brought to District Hospital then to Nishat Hospital Lucknow where he died during the treatment on 13.6.2003. The claimant approached the Tribunal and filed the claim petition. The Tribunal has framed the following issues for adjudication:- 1)Whether on 09.6.2003 at about 11:00 A.M. near Ved Mandir all of sudden a cow was came in front of the motor cycle no.-UP 42 E 4341 met with an accident in consequence thereof the pillion rider Sri Avtar Singh suffered injuries. 2)Whether there was driving licence of owner of motorcycle. 3)Whether motorcycle was insured with the New India Insurance Company Ltd. The Tribunal recorded the finding that there is no medical or any other evidence which may establish that the accident occurred on 09.6.2003 at the specified place and time. The Tribunal came to the conclusion that in the absence of any postmortem report and first information report not having been lodged by the dependent of Avtar Singh, the victim, the accident is not proved. During the course of hearing, learned Counsel for the appellants invited attention to paper 21 Ga which reveals that the deceased Avtar Singh was admitted in Government Sri Ram Hospital Ayodhya on the same day i.e. on 09.6.2003. Paper no.-22 Ga, reveals that injury report was prepared by the Doctor of Rajkiya Sri Ram Hospital Ayodhya. During the course of hearing, learned Counsel for the appellants invited attention to paper 21 Ga which reveals that the deceased Avtar Singh was admitted in Government Sri Ram Hospital Ayodhya on the same day i.e. on 09.6.2003. Paper no.-22 Ga, reveals that injury report was prepared by the Doctor of Rajkiya Sri Ram Hospital Ayodhya. It appears that deceased was referred to District Hospital Faizabad and admitted there on 09.6.2003 as reflects from paper no.-23 Ga, and in District Hospital Faizabad also injury report was prepared on the same date, a copy of which is filed as paper no.-24 Ga. The deceased was brought to Nishat Hospital, Lucknow where he died during treatment on 13.6.2003. A copy of death certificate is filed as paper no.-25 Ga and is available in Trial Court's record. The documents filed by the appellants during the courses of trial prove that Avtar Singh was admitted to Rajkiya Sri Ram Hospital Ayodhya, thereafter he was admitted in District Hospital Faizabad from where he was brought to Nishat Hospital Lucknow where he died during the treatment on 13.6.2003. The hospital's endorsement reveals that the victim suffered injury from road traffic accident. The Tribunal over looked these material facts which seem to prove that the victim suffered injuries in an accident occurred on 09.6.2003. Power conferred to Tribunal under Section 168 of the Motor Vehicle Act is an independent power whereby the Tribunal has been required to hold an inquiry with regard to accident and award of compensation. This should be done after providing opportunity of hearing to both parties. Even where no first information report is lodged the Tribunal has ample power to hold an inquiry and admit or reject the claim petition keeping in view the evidence on record. Under U.P. Motor Vehicle Rule 1998 it has been provided that how the Tribunal shall record evidence and deal with the case. Lodging the first information report or inquest report is not necessary. What is required for the Tribunal is that it must ascertain the involvement of the victim in the accident and genuineness of claim. In case the Tribunal is satisfied from the evidence on record that accident occurred and the victim suffered injuries then even if no first information report has been lodged and postmortem is made available it may award the compensation. In case the Tribunal is satisfied from the evidence on record that accident occurred and the victim suffered injuries then even if no first information report has been lodged and postmortem is made available it may award the compensation. In the present case various documents filed by the claimant before Tribunal (Supra), reveals that accident occurred on 09.6.2003 and victim suffered injuries. Avtar Singh was admitted to Rajkiya Sri Ram Hospital Ayodhya, thereafter to District Hospital Faizabad from where he was brought to Nishat Hospital Lucknow where he died during the treatment on 13.6.2003. The Tribunal has failed to discharge the jurisdiction vested in it while appreciating the evidence on record. In view of above we are of the view that from the evidence on record there is no reason to hold that the victim deceased did not suffer injuries in the accident occurred on 09.6.2003. Accordingly issue no.-1 is decided against the respondent-defendant, insurance company. Now we come to issue no.-2 which is with regard to driving licence. Learned Counsel for the respondent invited attention through paper no.-56 Ga, to establish that licence was in the name of one A.K.Uppal and not in the name of Yashpal Singh. On the other hand claimant had filed form-54 issued by licensing authority Faizabad which reveals that Yashpal had driving licence issued by licensing authority Faizabad. Original driving licence containing the photograph of Yashpal Singh has also been filed containing the seal of licensing authority. Submission of learned Counsel for the respondent is that the licensing authority Faizabad had not communicated the old driving licence number issued originally by licensing authority Barabanki, which has been referred in the name of A.K.Uppal in exhibit 56 Ga. From a perusal of original driving licence issued by the licensing authority it appears that it is an old licence. The licence is issued by the licensing authority Faizabad in its own original form having photograph of Yashpal and it does not reveal that it is fabricated one. In case of any fabrication on the part of appellants the respondent should have led evidence so that the appellants could have got the opportunity of cross examine the witness or rebut the evidence pertaining to driving licence. Paper no.-62 Ga is original licence. In case of any fabrication on the part of appellants the respondent should have led evidence so that the appellants could have got the opportunity of cross examine the witness or rebut the evidence pertaining to driving licence. Paper no.-62 Ga is original licence. The finding recorded by the Tribunal that on the date of accident Yashpal Singh had the driving licence seems to be correct and does not call for any interference. It is admitted fact from record that the vehicle was comprehensively insured by the respondent no.-1. Accordingly even pillion rider would have been entitled to get compensation in view of cases reported in 2009 (1) T.A.C. 6 (S.C.) G.M. United India Insurance Co. Vs. M.Laxmi- Pillion rider of two wheeler is covered under the comprehensive policy- para 4. Accordingly in view of above the appeal deserves to be allowed. The deceased was aged about 70 years. Under schedule of Motor Vehicles Act multiplier of 5 may be applied. However, there is no evidence on record to establish the actual income of the deceased. Accordingly compensation would be awarded on the basis of notational income of the deceased late Sri Avtar Singh. The Hon'ble Supreme Court Case in the Smt. Laxmi Devi Vs. Mohd. Tabbar reported in 2008 (2) T.A.C. 394 S.C., has held notational income to be rupees 3000 per month and after deduction of 1/3rd personal expenses the annual income shall come to rupees 24,000. Applying the multiple of five the total income shall be of rupees 1,29,500/-, may be awarded. Accordingly the compensation awarded to the claimant is to the tune of rupees 1,29,500/- alongwith interest @ of 8% from the date of filing of petition before the Tribunal. Let the entire compensation in terms of order be deposited within two months before the Tribunal and thereafter it shall be paid to the claimant Devendra Pal Singh through Bank Draft within a period of one month by the Tribunal. No cost. Appeal is accordingly allowed. _____________