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Madhya Pradesh High Court · body

2013 DIGILAW 902 (MP)

Union of India v. Girja Sahu

2013-08-01

G.D.Saxena

body2013
ORDER 1. Being aggrieved by the Award dated 13th December, 2010 passed in Claim Case No.31/2009 by the Second Additional Member of the Motor Accident Claims Tribunal, Dabra (Gwalior), appellant Union of India through Secretary, Government of India, Ministry of Home Affairs, New Delhi and the Director BSF Academy Tekanpur, District Gwalior has preferred an appeal under section 173 of the Motor Vehicles Act, 1988 with a prayer to set aside the impugned findings awarding thereby compensation in the sum of Rs.3,82,000/- along with 7% interest p.a. to the claimants. 2. The facts in short are that on 31st August, 2007 at about 7:45 a.m., Om Prakash Sahu (since deceased) was riding as a pillion rider on a motorbike driven by Neeraj Dhakad towards Gwalior. When they passed through Jorasi Temple at Jhansi Highway, green coloured bus hit them from back side causing serious injuries to Om Prakash Sahu. Thereafter the police with the help of other by standers shifted the injured for treatment to J.A. Hospital, Gwalior. The injured died during treatment. A Dehati Nalish was lodged by Neeraj Dhakad in J.A. Hospital, just after reaching the injured for treatment the Hospital with the Head Constable of the Police Station Bilaua, alleging involvement of bus of green coloured belonging to BSF. Thereafter, the FIR was lodged on the basis of said Dehati Nalish which was written in J.A. Hospital, Gwalior. After investigation, the final report, for want of the person who caused the accident was filed before the Criminal Court. The claimants, who happened to be the wife and children filed a claim petition before the learned Tribunal seeking award of Rs.44,86,000/-. The learned Tribunal after considering the evidence as adduced by the parties passed the award of Rs.3,82,000/- against the owner and the driven of the bus No. PB 08/AJ-6980 involved in accident which is sought to be challenged in the present appeal on the sole ground that the alleged bus was not involved in the accident. 3. The contention of the learned counsel appearing for the appellants is that the award passed by the learned Tribunal on vicarious liability of the BSF employee, i.e., the driver involved in road accident is in contravention of the relevant provisions of law and the facts as adduced by the parties. 3. The contention of the learned counsel appearing for the appellants is that the award passed by the learned Tribunal on vicarious liability of the BSF employee, i.e., the driver involved in road accident is in contravention of the relevant provisions of law and the facts as adduced by the parties. It is submitted that the offending BSF school bus which was alleged to have caused the accident, had already reached at the place of destination at Central School Premises and after allowing the kids of BSF personnels was in rest timings for its return journey back to the BSF Headquarter Premises at Tekanpur. It is contended that the relevant time on which the accident had happened there was not at all possible for picking up the school students and thereafter coming at the root from Tekanpur to Gwalior and hit the on-going bike and caused injuries to a pillion rider of the bike. It is submitted that the learned Tribunal has failed to assess that an unknown motor vehicle was involved in the accident and the school bus owned by the BSF was involved on mere assumption expressed by some of the eye-witnesses. It is submitted that the Tribunal did not properly consider the evidence as adduced by the respondents-appellants, herein. Therefore, on the basis of above submissions, it is prayed that the award passed by the Tribunal may be set aside by discharging the appellants from the liability of making payment of the award. 4. On the other hand, the learned counsel appearing for the claimants submitted that the learned Tribunal has rightly found that the offending vehicle was involved in accident and rightly passed the award, which does not require to be disturbed. It is therefore prayed that the appeal may be dismissed by upholding the findings arrived at by the learned Tribunal while passing the award. 5. Heard the learned counsel for both the sides and also perused the record and the law applicable to the case at hand. 6. Now, the question for consideration before this Court is whether there is any involvement of BSF school bus bearing No. PB 08/AJ-6980 in causing accident and death of Om Prakash Sahu? 7. 5. Heard the learned counsel for both the sides and also perused the record and the law applicable to the case at hand. 6. Now, the question for consideration before this Court is whether there is any involvement of BSF school bus bearing No. PB 08/AJ-6980 in causing accident and death of Om Prakash Sahu? 7. At this stage, it would be appropriate to quote that there are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise and the splendor of the stars, beyond the reach of monetary tape measure. The determination of the damages for loss of human life is an extremely difficult task. Different formulas are carved and calculations are made, but no amount of compensation could restore the human life. Similarly, the man is like a bubble on flowing water on the heavy trafficking roads. A little negligence some times results into vanishing of the same as a whole, rendering their as helpless orphans and leave dependents to collect his remains and also to look forward to the owners, drivers and insurer to compensate them for such deaths gently living in castles come on the roads and cry for help. That apart, if a scratch is made on the bubble then this human frame stand disturbed having gone crippled for the rest of his life. No amount of compensation could restore the physical frame of such a person having a sufferer from an accident, that is why it has been said by the Courts that whenever any amount is determined as compensation payable for an injury suffered during accident, the object is to compensate such injury so far as the money can compensate because it is impossible to equate the money with the human suffering and personal deprivations. Money cannot renew a broken and shattered physical frame. 8. On perusal of the record of the case containing the evidence led by the claimants and non-applicants, it appears that on 31st Auguswt, 2007 at about 7:45 a.m. deceased Om Prakash being a pillion rider on motorcycle driven by a witness Neeraj Dhakad was going towards Gwalior. Money cannot renew a broken and shattered physical frame. 8. On perusal of the record of the case containing the evidence led by the claimants and non-applicants, it appears that on 31st Auguswt, 2007 at about 7:45 a.m. deceased Om Prakash being a pillion rider on motorcycle driven by a witness Neeraj Dhakad was going towards Gwalior. As they crossed Jorasi Hanuman temple, one green coloured bus owned by the BSF while coming from the side of Tekanpur to Gwalior hit the motorbike driven by Neeraj Dhakad from back side and caused severe injuries to Om Prakash Sahu. Om Prakash Sahu was immediately shifted to J.A. Hospital Gwalior, where he succumbed to injuries. The Dehati Nalish was lodged by Neeraj Dhakad driver of the motorbike. Thereafter, in the noon, the FIR was also registered on the basis of said Dehati Nalish against unknown driver of the offending BSF vehicle. Witnesses Pawan Shrivastava (AW4) and Santosh Dubey (AW2) deposed that after accident the bus involved stopped for a moment and then moved to the destination and these witnesses chased the bus by their motorbikes and could be able to know the actual reason. They stated that after incident, the driver of the bus drove away the bus very fast from the spot and therefore could not be arrested. But in the case diary statement of Pawan Shrivastava which was recorded by the I.O., the registration number of the bus involved in the accident was disclosed by the witness. Despite the request letter dated 17th September, 2007 (Ex.P-12) and by an order dated 6th November, 2007 of the Judicial Magistrate Dabra to the Director of BSF Tekanpur for rendering co-operation in the investigation by providing requisite information of the bus involving in accident and its driver, no information in this regard was provided. The Investigating Officer was not disclosed the name of the driver responsible for the death of Om Prakash Sahu. Moreover, the authority concerned also not did not make available the bus involved for mechanical examination to the Investigating Officer for fair investigation. The Investigating Officer was not disclosed the name of the driver responsible for the death of Om Prakash Sahu. Moreover, the authority concerned also not did not make available the bus involved for mechanical examination to the Investigating Officer for fair investigation. It is true that in connection of the offending vehicle, the police made a query from the bus drivers of the BSF buses while crossing the site at the time of accident and the certified copies of documents prepared during investigation clearly mentioned that the BSF green coloured bus was involved but the authority remained silent and did not disclose the particulars of the offending vehicle and its driver. From the evidence of Santosh Shukla, Head Constable of BSF, Keshav Singh, Sub-Inspector and Phoola Ram, driver of the offending bus it appears that after knowledge of accident causing by the BSF vehicle, the fact finding inquiry was conducted by the BSF officers and after inquiry it was concluded that the bus No. PB 08/AJ-6980 was not involved in the accident on 31st August, 2007 in which Om Prakash Sahu was dead. After informing such conclusion to the police, the investigation came to an end with the result the bus involved in accident could not be traced out and under these circumstances, the final report for closing investigation was filed before the Criminal Court which later on was accepted. On minute scrutiny of inward/outward register of buses depot dated 31st August, 2007 (Ex.D-2C) filed and proved by Santosh Shukla, Head Constable of BSF, it reveals that on that day first bus No.9870 driven by driver Oma Ram was shown to be time out at 6:15 a.m. for Gwalior which returned back at 9:30 a.m. Second bus No.6980 driven by Phoola Ram was shown to be time out at 6:20 a.m. to Gwalior but in the column of time in no time of return of bus is mentioned. Third Bus No. WB 73/9895 driven by driver Paler Singh was shown to be out at 6:45 a.m. from depot to Gwalior which returned back at 11:00 a.m. and fourth Bus No. HR 38/D-4348 was shown to be out from depot at 7:35 a.m. to Gwalior, however, the time of return of the vehicle was not mentioned in the relevant column. 9. 9. On perusal of the award under appeal it seems that the learned Tribunal without minute scrutiny of this aspect and without compelling for production of the fact finding report conducted by the BSF officers in this regard that which vehicle was involved in the accident straightway came to hold that Bus No. PB 08/AJ-6980 was involved in the accident which was not correct. Looking to the death of citizen involved caused by the vehicle belonging to BSF, the free and fair fact finding inquiry was necessary to be conducted by the BSF officers for fixing the liability of unknown BSF bus which passed at the relevant point of time through the accident spot so as to know about driver of that ill-fated bus who caused death of innocent citizen, byhis rash and negligent driving. 10. In the case of State of M.P. v. Magilal [ 2001(2) MPLJ 27 ], this Court on vicarious liability of the State i.e. employee of State had made observation as follows : “Where one citizen has lost his life due to negligence of State i.e. employer of State. Obviously the State is vicariously liable for action of their servants. A compensation of Rs.60,000/- fixed by the Tribunal for loss of human life is most reasonable and fair one. Even under the Act, the Parliament has come forward to fix a sum of Rs.50,000/- on the principle of no fault liability. I, therefore, fail to appreciate as to why even the state should file appeal to challenge the grant of compensation of Rs.60,000/-. The apt observation of his Lordship Me. M.C. Chagla, C.J. in the case of Firm Kaluram Sitaram v. The Dominion of India [AIR 1954 Bombay 50], squarely appeals to this case. His Lordship while deciding a lis between citizen on the one hand and State on the other hand observed in his concluding paragraph: “(d) Pratice State and citizen technical pleas. -- Where the State with the citizen it should not ordinarily rely on technicalities and is the State if satisfied that a case of the citizen is a just one even though legal defences may be open to it, it must act as an honest person.” The State owes a duty to ensure safety of human being and not to fight litigation on such trifle matters. It has to respect the verdict of the competent Tribunal. It has to respect the verdict of the competent Tribunal. Merely because, a right of appeal is available to State like a ordinary litigant it does not mean that in every case such right has to be exercised.” 11. In Oriental Insurance Co. Ltd. v. Meena Variyal [ AIR 2007 SC 1609 ], the Hon’ble apex Court had observed as follows : “It may be true that the Motor Vehicles Act, insofar as it relates to claims for compensation arising out of accidents, is a beneficent piece of legislation. It may also be true that subject to the rules made in that behalf, the Tribunal may follow a summary procedure in dealing with a claim.That does not mean that a Tribunal approached with a claim for compensation under the Act should ignore all basic principles of law in determining the claim for compensation. Ordinarily, a contract of insurance is a contract of indemnity. When a car belonging to an owner is insured with the Insurance Company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company. A third party for whose benefit the insurance is taken, is therefore entitled to show, when he moves under section 166 of the Motor Vehicles Act, that the driver was negligent in driving the vehicle resulting in the accident; that the owner was vicariously liable and that the Insurance Company was bound to indemnify the owner and consequently, satisfy the award made. Therefore, under general principles, one would expect the driver to be impleaded before adjudication is claimed under section 166 of the Act as to whether a claimant before the Tribunal is entitled to compensation for an accident that has occurred due to alleged negligence of the driver. Why should not a Tribunal insist on the driver of the vehicle being impleaded when a claim is being filed? As we have noticed, the relevant provisions of the Act are not intended to jettison all principles of law relating to a claim for compensation which is still based on a tortuous liability. Why should not a Tribunal insist on the driver of the vehicle being impleaded when a claim is being filed? As we have noticed, the relevant provisions of the Act are not intended to jettison all principles of law relating to a claim for compensation which is still based on a tortuous liability. The Tribunal ought to have, in the case on hand, directed the claimant to implead Mahmood Hasan who was allegedly driving the vehicle at the time of the accident. Here, there was also controversy whether it was Mahmood Hasan who was driving the vehicle or it was the deceased himself. Thus, impleadment of the driver of the offending vehicle is necessary is an application under section 166 Motor Vehicles Act, 1988. His impleadment is not an empty formality nor a driver is a proforma defendant. The liability of insurer and owner arises only when negligence of the driver is not only pleaded but is also established. If the driver is not found to be rash and negligent, no liability can arise either of owner or of the Insurance Company. Negligence of the owner is a sin qua non for such liability. Another question for consideration is that the act of drivers engaged in driving BSF buses cause accident in public place by their rash and negligent driving and causing death of individual in that case the BSF being the employer, on vicarious liability is responsible for payment of award amount under Motor Vehicles Act. If the tortuous act has been committed by a public servant in discharge if duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose.” 12. Now, coming back on present scenario of the case as mentioned earlier from the evidence following picture emerges : (i) that, on 31st August, 2007 at about 7:45 a.m., deceased Om Prakash being a pillion rider on motorcycle driven by witness Neeraj Dhakad was going towards Gwalior. Now, coming back on present scenario of the case as mentioned earlier from the evidence following picture emerges : (i) that, on 31st August, 2007 at about 7:45 a.m., deceased Om Prakash being a pillion rider on motorcycle driven by witness Neeraj Dhakad was going towards Gwalior. As they passed through Jorasi Hanuman temple, one green coloured bus owned by BSF coming from Tekanpur to Gwalior hit the motorbike driven by Neeraj Dhakad from back side causing severe injuries to Om Prakash Sahu. Om Prakash Sahu was immediately shifted in the police vehicle to J.A. Hospital, Gwalior, where he succumbed to injuries; (ii) that, by the time of lodging the FIR in Police Station Bilaua, the identity of the bus was not known to concerning police.The crime was registered against unknown driver to BSF bus, but during case diary statement of Pawan Shrivastava which was recorded by the I.O., he mentioned about the registration number of bus involved in accident; (iii) that, it is true that in connection of involvement of the BSF vehicle, the police made the queries from the bus drivers of BSF buses while they were crossing the site. The certified copies of documents prepared during investigation clearly disclosed that the BSF green coloured bus was involved but the responsible authority remained silent and did not disclose the particulars of the bus and its driver which caused the accident; (iv) that, on informing the conclusion of the inquiry by the BSF officials that the Bus No. PB 08/AJ-6980 driven by Phoolaram was not involved in the alleged accident to the police, the investigation unfortunately came to an end with result that the bus involved in accident and the driver of the BSF bus could not be traced out and in that eventuality final report for closing investigation was filed before the Criminal Court which was accepted; (v) that, non-cooperation from the side of BSF officers has resulted in closing of the investigation for want of identity of the bus involved and the driver causing the accident; (vi) that, on minute scrutiny of the relevant page of the Inward and Outward register of buses dated 31st August, 2007 marked as Ex.D-2C proved by Santosh Shukla, Head Constable of BSF, it reveals that on that day first bus No.9870 driven by driver Oma Ram was shown to be time out at 6:15 a.m. for Gwalior which returned back at 9:30 a.m. Second bus No.6980 driven by Phoola Ram was shown to be time out at 6:20 a.m. to Gwalior but in the column of time in notime of return of bus is mentioned. Third Bus No. WB 73/9895 driven by driver Paler Singh was shown to be out at 6:45 a.m. from depot to Gwalior which returned back at 11:00 a.m. and fourth bus No. HR 38/D-4348 was shown to be out from depot at 7:35 a.m. to Gwalior, however, the time of return of the vehicle was not mentioned in the relevant column; (vii) that, on perusal of the award it seems that the learned Tribunal without going into these aspects and without compelling for production of the fact finding report conducted by the BSF officers in this regard that which vehicle was involved in the accident formed an opinion that bus No. PB 08/AJ-6980 was involved in the accident which was not correct. 13. Since, at this stage, it is not discernible that from whom and from which vehicle the accident has caused. 13. Since, at this stage, it is not discernible that from whom and from which vehicle the accident has caused. This being so, the question of the appellants being liable for amount in respect of the accident in respect of the present driver of the offending vehicle does not arise. In this view of the matter and having considered the principles as laid down in the aforementioned cases by Hon’ble apex Court as well as this Court coupled with the provisions contemplated under Order 41 rule 25 of CPC, this Court thinks it appropriate to remit the matter to learned MACT for taking a fresh decision after ascertaining the involvement of the offending vehicle which came from Tekanpur to Gwalior on the fateful day on 31st August, 2007 at about 7:45 a.m. and met with an accident, causing injuries to Om Prakash Sahu resulting his death. The learned MACT shall insist the appellants for production of the fact finding report as mentioned in the deposition of the witnesses examined by the non- applicants and shall also examine the drivers of the appellants who were deployed at the relevant time for driving the buses on the route in question and thereafter shall decide the case in accordance with law. The learned MACT shall decide the case as directed above within a period of six months from the date of receipt of the record along with copy of this order. After taking the decision on the issue referred to above, the learned MACT shall pass fresh award against the person involved in the case. Both the parties shall co-operate with the learned Tribunal to comply with the direction of this Court. It is needless to mention that both sides would be afforded ample opportunityof hearing. 14. Record of the case shall be dispatched to the learned MACT forthwith, along with a copy of this remand order. 15. In view of the aforementioned findings, the appeal stands allowed. .............