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2014 DIGILAW 511 (PNJ)

Sunheri Devi v. Sewa Singh

2014-03-11

KULDIP SINGH

body2014
JUDGMENT Mr. Kuldip Singh, J.:- Claimants have filed this appeal against award dated 17.8.2004 passed by Motor Accident Claims Tribunal, Patiala (for short ‘the Tribunal’) vide which the claim petition of the appellants under Section 163-A of the Motor Vehicle Act, 1988 was dismissed with costs. 2. As per the case put up by the claimants before the Tribunal, Tulsi Dutt alongwith Balram Singh was travelling on 1.1.2001 on motor cycle No.PB-11-Q-4916 being driven by Tulsi Dutt (deceased). They were going from village Kauli to village Ablowal. Deep Kumar and Vijay Kumar were also going on their scooter No.PB-11-G-2102 being driven by Deep Kumar. At about 9.30 p.m. they crossed the bridge near Dharheri towards Bahadurgarh on Rajpura-Patiala Road. The motor cycle of Tulsi Dutt skid as he applied brakes to avoid its hitting the scooter while over-taking scooter going ahead his motor cycle. As a result of which Tulsi Dutt and Balram Singh were fell down and they sustained injuries. It was further stated that Tulsi Dutt died due to the accident. DDR No.4 dated 2.1.2001 was got recorded. Deceased Tulsi Dutt had not consumed liquor as stated in the said DDR. Deceased was teetotaler and follower of Radha Swami. 3. Respondent No.1 denied the claim whereas Insurance Company contested the claim and it took all the preliminary objections. Insurance Company took the plea that deceased himself was driving the motor cycle and he cannot be allowed to take benefit of his own wrong. Claimants have fabricated the whole story. In DDR No.4 dated 2.1.2001 lodged with the police, it has been mentioned that deceased had consumed liquor at a party and were going back. The DDR was recorded on the statement of Balram Singh, who had stated that they had attended the party on account of birth of son of his brother-in-law at village Kauli and there in the party they alongwith Tulsi Dutt had consumed liquor. 4. From the pleadings of the parties, the Tribunal framed the following issues: (i) Whether Tulsi Dutt died in a Motor Vehicular Accident, which took place on 1.1.2001? OPD. (ii) If issue No.1 is proved, whether the claimants are entitled to seek any compensation, if so to what extent and from which of the respondents? OPP. (iii) Whether the claim petition is not maintainable in the present form? OPR. OPD. (ii) If issue No.1 is proved, whether the claimants are entitled to seek any compensation, if so to what extent and from which of the respondents? OPP. (iii) Whether the claim petition is not maintainable in the present form? OPR. (iv) Whether the claim petition is bad for non joinder of the necessary parties? OPR. (v) Whether the Motor Cycle bearing engine No.11150 and Chassis No.64839 was not holding a valid driving licence at the time of accident? OPP. (vi) Relief. 5. The Tribunal took the view that in the claim petition, the claimant has claimed that income of the deceased was above Rs. 40,000/- p.a. and therefore, the claim petition is not maintainable under Section 163-A of Motor Vehicle Act, 1988. The Tribunal took the view by placing reliance on a judgment of Hon’ble the Supreme Court in Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd. 2004 ACJ 934 that only those claimants having annual income upto Rs.40,000/-, can take benefit of provisions of Section 163-A of Motor Vehicle Act, 1988. It also took the view that it is clear from the DDR that deceased himself was to be blamed for the accident. The accident took place due to his negligence and he cannot take benefit of his own negligence. 6. I have heard learned counsel for the parties and have gone through the case file carefully. 7. Learned counsel for the appellants has argued that as per the Division Bench judgment of this Court in Oriental Insurance Co.Ltd. Vs. Smt.Saroj and others 2007(1) RCR (Civil) 152, the authority of Deepal Girishbhai Soni and others (supra), does not lay out that merely by setting up a claim on the basis of higher income than Rs.40,000/- p.a., the claimants would not be disqualified to lay a claim under Section 163-A of the Motor Vehicles Act, 1988. It being so, the Tribunal is to determine the income of the deceased. 8. However, in this case there is another fact which cut at the root of the prosecution case. In this case, no FIR was registered, rather DDR No.4 dated 2.1.2001 was got recorded by Balram Singh s/o Ram Singh at 9.15 a.m. A son was born to his brother-in-law Sethi, r/o village Kauli. Therefore, on 1.1.2001 his brother-in-law Sethi had called his relations for a party. In this case, no FIR was registered, rather DDR No.4 dated 2.1.2001 was got recorded by Balram Singh s/o Ram Singh at 9.15 a.m. A son was born to his brother-in-law Sethi, r/o village Kauli. Therefore, on 1.1.2001 his brother-in-law Sethi had called his relations for a party. On 1.1.2001 he alongwith his brother Deep Kumar, maternal uncle Tulsi Dutt and brother-in-law Vijay Kumar had gone on scooter and motor cycle to village Kauli. There on account of birth of son, they had taken liquor and thereafter took meals. Thereafter, they started on their scooter and motor cycle to come to their village. Scooter No.PB-11-G-2102 was being driven by his brother Deep Kumar and his brother-in-law Vijay Kumar was riding the pillion. They were going ahead of them. Motor cycle No.PB 11-Q-4916 was being driven by his maternal uncle Tulsi Dutt and he was riding pillion. At about 9.30 p.m. they were going from village Dharheri to Bahadurgarh. After crossing the bridge, Tulsi Dutt accelerated the speed of motor-cycle to catch up the speed of scooter of Deep Kumar and due to darkness, Tulsi dutt (deceased) applied brakes as a result of which motor cycle hit the scooter and both motor-cycle and scooter fell down and they received injuries. Tulsi Dutt had died. The occurrence had taken place due to rain and darkness and nobody was at fault. This report was made by the nephew of the deceased promptly on the next morning and is apparently the first and trust worthy version of the occurrence. Once it is found that deceased Tulsi Dutt was drunk and was himself responsible for the accident, no compensation can be awarded. 9. I do not find any fault with the impugned award passed by the Tribunal, therefore, the present appeal stands dismissed. --------------