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2014 DIGILAW 1091 (ALL)

Shiv Murti Singh v. Nawab Khan

2014-04-03

ASHOK PAL SINGH, DEVI PRASAD SINGH

body2014
JUDGMENT Ashok Pal Singh.J The instant appeal has been preferred by the Claimant Appellant under Section 173 of Motor Vehicles Act 1988 (for short "the Act") against the judgment and award dated 22.02.2000 passed by Motor Accident Claims Tribunal / Special Judge, E.C. Act, Unnao in Motor Accident Claim No. 124 of 1997 whereby his claim petition has been dismissed. 2. As borne out from the submissions of the learned counsel for the parties and material available on record the appellant aged about 28 years was a cleaner on truck No. UTZ-4603 on 01.03.1997. While on way to Jagdishpur, District - Sultanpur from Shuklaganj, District - Unnao, a roadside halt was taken by the driver of the aforesaid truck. Thereafter, when the appellant at about 8.30 AM was going on the left side of the road to attend the call of nature a speeding truck bearing no. DL-1G/A-5603 belonging to Respondent No. 1 came from his back side and after hitting him sped away. As a result of this the appellant received serious injuries. Injury report indicates that besides having received certain minor injuries his right leg was crushed. The appellant was immediately taken by his driver on their Truck to Ursala Hospital, Kanpur, from where the appellant was referred and admitted to Regency Hospital, Kanpur on the same day, i.e., 01.3.1997. There a surgical operation was performed on his injured leg and he was subsequently discharged on 13.3.1997. Due to some complication having developed he was again hospitalized. This time he was admitted to R.K. Devi Memorial Hospital in Kanpur on 15.10.1997 where a second operation was performed on his injured leg and after few days of treatment he was discharged on 20.10.1997. The appellant filed the claim petition under Section 166 of the Act alleging the accident to have been caused due to rash and negligent driving of Truck No. DL-1G/A-5603 . The Respondent No. 1, the owner of the aforesaid truck in his reply not only denied the accident to have been caused by his truck but also specifically alleged that on the day of accident his truck was in Etah and not anywhere the place of occurrence. 3. In order to prove his case the appellant got himself examined as APW.2 and inter alia gave an eye witness account of the accident in question. 3. In order to prove his case the appellant got himself examined as APW.2 and inter alia gave an eye witness account of the accident in question. He also got his injury report filed through APW.1 Yadunath Singh Yadav, a pharmacist at Ursula Hospital, Kanpur where his injures had been recorded as a medico legal case. 4. In the form of documentary evidence the appellant filed the carbon copy of FIR lodged by the driver of his truck and a number of documents regarding his treatment together with bills/ receipts for purchase of medicines. 5. From the side of the respondents in support of their stand about their truck being not involved in causing the accident in question only OPW1 Raghubir Singh, the driver of said truck was examined. No documentary evidence was filed by them. 6. The tribunal while passing the impugned award recorded a finding pertaining to Issue No. 2 & 3 that the Respondent's Truck No. DL-1G/A-5603 was at the time of accident in question was effectively insured and its driver was having a valid driving licence. However, while deciding Issue No. 1 pertaining to the factual matrix of the accident it found the same to have not been proved to have been caused by the respondent's aforesaid truck. As a result thereof, the tribunal without making any attempt to calculate the amount of compensation dismissed the claim petition filed by the appellant. 7. The observations made by the Tribunal while deciding Issue No. 1 against the Appellant show that at the very threshold it found the evidence of OP W. 1 regarding the stand taken by the Respondents to be not convincing. 7. The observations made by the Tribunal while deciding Issue No. 1 against the Appellant show that at the very threshold it found the evidence of OP W. 1 regarding the stand taken by the Respondents to be not convincing. Inspite of the same it appears that the Tribunal was influenced to dismiss the claim on the grounds that a final report had been filed by the Police from which an inference could be drawn that either the Respondent's truck was not involved or that there was no negligence on the part of its driver in causing the accident in question; that it was not possible either for the appellant or his driver to have seen the number of the truck which had caused the accident; that except for the number of Respondents' truck no other details of the accident were given in the F.I.R. lodged by the Appellant's driver; that it was not possible for a truck to have hit a person going on his left Kuchha side of the road; and that in view of the injuries received by the Appellant and the manner in which the Respondents' truck is said to have hit him, makes the medical and oral evidence in conflict to each other. 8. It has been submitted by the learned counsel for the appellant that the learned Tribunal has manifestly erred in dismissing the claim petition. The submission of learned counsel for the appellant is that submission of final report or acquittal of an accused in a criminal case with regard to an accident cannot be made the basis of dismissing the claim petition. The rules of pleadings and proof are not strictly applicable to motor accident cases. They are not to be decided on the basis of proof beyond reasonable doubt as is done in the trial of criminal cases. His further submission is that the fact of causing the accident due to rash and negligent driving of the Respondents' truck was clearly proved by the evidence of the appellant APW.2 and the medical evidence filed in support thereof. The findings of the Tribunal are based on mere surmises and conjunctures. His further submission is that the fact of causing the accident due to rash and negligent driving of the Respondents' truck was clearly proved by the evidence of the appellant APW.2 and the medical evidence filed in support thereof. The findings of the Tribunal are based on mere surmises and conjunctures. His further submission is that in view of the absolute denial by the respondent no.1 about the accident caused by his truck and the specific allegation that his truck was not present anywhere near the place of accident on the given date and instead was in District- Etah the burden lay upon the respondent no.1 to have proved those averments. The Tribunal itself recorded a finding that the evidence of OPW.1 the driver of the Respondents' truck was not at all convincing in this regard. In spite of the same it found the accident to have not been caused due to rash and negligent driving of the respondent's truck and dismissed the petition. The submission of the learned counsel for the appellant is that the impugned judgment and award is, thus, not sustainable and the appeal is liable to be allowed by awarding a just compensation to the Appellant. 9. Before making any analytical discussion about findings which influenced the learned Tribunal to reject the claim of the appellant it is considered necessary to make the mention about few decisions of the Hon'ble Supreme Court. 10. In N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and others (1980) 3 SCC 457 , Hon'ble Apex Court while observing that acquittal in a criminal case will not defeat the accident claim held that the requirement of culpable rashness under Section 304A of I.P.C.is more drastic than negligence sufficient under the law of tort to create liability. 11. In United India Insurance Company Ltd. Vs. Shila Dutta and others (2011)10 SCC 509 , a three Judges Bench of Hon'ble Supreme Court culled out certain underlying principles and propositions for deciding claim petitions under the Act. Some of them as relevant to the facts of present case are : - 1. The rules of the pleadings in principle do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo moto initiated by the Tribunal. 2. Some of them as relevant to the facts of present case are : - 1. The rules of the pleadings in principle do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo moto initiated by the Tribunal. 2. That, though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in adversarial litigation. 3. The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of the matters relevant to inquiry, to assist it in holding the enquiry. 4. The Tribunal while passing the award makes a statutory determination of compensation on the occurrence of an accident after due enquiry in accordance to the statute. 12. In Bimla Devi and others Vs. Himachal Road Transport Corporation (2009)13 SCC 530 , Hon'ble Supreme Court held that a motor accident claim petition is required to be decided by the Tribunal on the touch stone of preponderance of probability and not on the basis of proof beyond reasonable doubt. 13. In Dulcina Fernandes and others Vs. Joaguim Xavier Cruz and another, (2013) 31 LCD 2432 , Hon'ble Supreme Court following the dictum laid down by it in Shila Dutta and Bimla Devi's Cases (Supra) held that the rules of pleadings do not strictly apply to motor accident claim cases and that the plea of negligence is required to be decided by the Tribunal on the touch stone of preponderance of probability and not on the basis of proof beyond reasonable doubt. 14. It appears that the learned Tribunal has not kept in mind the law laid down by the Apex Court in the aforesaid decisions while passing the impugned award. The final report filed by the Police in the criminal investigation against the driver of the Respondents' truck could not have been made the basis by the learned Tribunal for rejecting the petitioner's claim. The claim was to be decided on its own merits on the basis of evidence adduced by the parties on the touch stone of preponderance of probability and not on the basis of result of the criminal enquiry absolving the driver of his culpability. 15. The claim was to be decided on its own merits on the basis of evidence adduced by the parties on the touch stone of preponderance of probability and not on the basis of result of the criminal enquiry absolving the driver of his culpability. 15. It is noticed from the perusal of the carbon copy of the F.I.R. filed on tribunal's record that it was lodged by the driver of the truck on which the appellant was the cleaner. Although, it was lodged with a delay of five days after the accident, but, a cogent reason had been given by him for this delay in the F.I.R. itself. He clearly mentioned in it that he first got the appellant admitted to the hospital and after making arrangement for appellant's proper treatment he has come to lodge the F.I.R. 16. It is also noticed from the perusal of the F.I.R. that the allegations made in it substantially supported the deposition made by the appellant as APW.2 regarding the facts and circumstances and also the manner in which the accident in question had taken place. The registration number of the Respondents' truck also finds mentioned in it. The observation made by the learned Tribunal that except for the number of truck no other details of the accident were given in the F.I.R. are found to be erroneous on facts as well as law laid down in respect of first information reports. It a settled law that an F.I.R. need not contain a detailed account of the incident. It also cannot be taken as an encyclopedia of the events. The object of an F.I.R.is to give such information only which is necessary to set the criminal law in motion. 17. The oral statement of the appellant as APW. 2 about the involvement of the Respondents' truck and the manner in which the accident was caused finds support from the description made in the F.I.R. and other medical evidence brought on record. The cumulative effect of this evidence to our mind is sufficient to raise the probability of the accident in question to have been caused by the rash and negligent driving of the Respondent's truck. This probability stands further fortified by the fact that the learned Tribunal itself has not found the oral evidence of OPW. The cumulative effect of this evidence to our mind is sufficient to raise the probability of the accident in question to have been caused by the rash and negligent driving of the Respondent's truck. This probability stands further fortified by the fact that the learned Tribunal itself has not found the oral evidence of OPW. 1 the Respondent's truck driver to be not convincing to hold the stand taken by the Respondent No.1 proved about his truck being not present anywhere near the place of accident and instead being in Etah at the given time. The probability of the accident raised in favour of the Appellant thus clearly gained a preponderance over the evidence adduced by the Respondents. 18. We thus find that the findings recorded by the Tribunal with regard to Issue No. 1 are not based on the settled principle of touch stone of preponderance of probability but are based on mere surmises and conjectures. Accordingly, the findings given by the Tribunal on Issue No. 1 being not sustainable are set aside and it is held that the accident in question had occurred due to rash and negligent driving of the Respondents' truck and as a result thereof we also find that the Tribunal has committed a grave mistake in dismissing the Appellant's claim petition. 19. After the above findings given by us although the matter deserves to be remanded to the Tribunal for fresh decision and for getting the compensation payable to the Appellant calculated, but we find that this appeal is already pending before this Court since last 13 years and that any further delay in getting the claim petition decided will only magnify the miseries of the appellant. As such we are of the view that the matter should be finally decided by this Court at this stage itself. That takes us to the question as to what would be the just compensation payable to the Appellant. 20. In his claim petition the appellant has made a prayer for awarding a total amount of Rs. 1,02,036/-. He has made this claim on the basis of his income as a cleaner getting Rs. 2,000/- per month. The various heads under which the aforesaid amount of compensation has been demanded in his petition by him contains mainly the expenses which he had incurred in transportation for his treatment, medical treatment and purchase of medicines. 1,02,036/-. He has made this claim on the basis of his income as a cleaner getting Rs. 2,000/- per month. The various heads under which the aforesaid amount of compensation has been demanded in his petition by him contains mainly the expenses which he had incurred in transportation for his treatment, medical treatment and purchase of medicines. Only an amount of Rs. 10,000/- has been claimed by him towards loss of income for the period he remained under treatment from the date of accident, i.e., from 1.3.1997 to 1.8.1997. An amount of Rs. 25,000/- has also been claimed by him towards mental and physical pain. It may be pointed out that no averment has been made by the Appellant either in his claim petition or in his oral statement given as APW.2 about receiving any permanent disability as a result of the injuries received. He has also not filed any disability certificate on record. However, in his statement he has clearly stated that nearly Rs. 80,000/- were spent on his treatment. Anyhow, considering the grievous injury received by the appellant on his right thigh which was a crush injury and the fact that two operations had been performed on his injured leg as is evident from his testimony as APW.2 as well as the medical evidence filed by him, the aforesaid amount of Rs. 1,02,036/- as compensation can not by any stretch of imagination be said to have been excessively demanded by him. 21. We , therefore, are of the view that the appellant is entitled to receive the aforesaid amount of Rs. 1,02,036/- in toto, but with 8% interest per annum and not with 15% interest per annum as prayed by him which shall be payable to him from the date when the claim petition was filed till its payment made to him. 22. The appeal is accordingly allowed and setting aside the impugned judgment and award of the Tribunal, the claim petition is allowed for the payment of compensation to the appellant to the above extent. No order as to costs. The insurance company-Respondent No. 3 is directed to pay or deposit the entire amount of compensation payable to the Appellant within 2 months before the Tribunal concerned which shall be released by the Tribunal within a month of its deposit for payment to the Appellant.