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2016 DIGILAW 1174 (MP)

Ramdevi v. Mahesh Singh

2016-12-20

S.K.AWASTHI

body2016
JUDGMENT : S.K. Awasthi, J. The appellants have filed this appeal under Section 173 of Motor Vehicles Act, 1988 against the award dated 04.08.2005 passed by the VIII Additional Motor Accident Claims Tribunal, Gwalior (for brevity, the 'Tribunal') in Claim Case No. 68/2004 by which the claim petition was dismissed by the Tribunal. 2. Factual aspects of the case are that the son of the appellant No. 1 and younger brother of the appellant No. 2, namely, Sunil aged about 19 years was working as a Cleaner in Tata 407 Truck bearing registration No. MP06/E0723. On 25.12.2003, he was going on the said vehicle from Indore to Faridabad. The vehicle was being driven by the respondent No. 1 Mahesh Singh. When the vehicle reached village Kakua, Police Station Malpura, District Agra, the non-applicant/respondent No. 1 drove the vehicle rashly and negligently and dashed another truck which was going ahead. Due to dash by the offending truck Sunil sustained serious injuries and died on the spot. The incident was reported by the respondent No. 1 in Police Station Malpura and the police sent the body for postmortem but did not register any case with respect to the accident in question. 3. As per the appeal memo, Sunil was working as a Cleaner and was earning Rs.2000/- per month. The truck was owned by the respondent No.2 and was insured with the respondent No.3/National Insurance Company. The deceased left behind his mother and elder brother. The appellant/claimant filed a claim petition for compensation of an amount of Rs.10,50,000/- with interest @ 18 percent per annum from the date of filing of the claim petition. 4. The respondents denied the alleged accident and averments made in the claim petition. 5. The learned Motor Accident Claims Tribunal framed the issues on the basis of pleadings and disbelieved the case of the appellants on the ground that it is not established that Sunil died in the accident and therefore dismissed the claim petition. 6. Being aggrieved by the order of dismissal of the claim petition, this appeal has been preferred by the appellants/claimants. 7. The main contention of learned counsel for the appellants/claimants is that the learned Claims Tribunal has wrongly disbelieved the claim on the ground that the accident has not been proved by the appellants/claimants, although the accident is proved. The Claims Tribunal refused to accept the contents of post mortem report Ex.P-3. 7. The main contention of learned counsel for the appellants/claimants is that the learned Claims Tribunal has wrongly disbelieved the claim on the ground that the accident has not been proved by the appellants/claimants, although the accident is proved. The Claims Tribunal refused to accept the contents of post mortem report Ex.P-3. The report lodged by the respondent No. 1 also established that the accident has occurred due to his negligence. It is further submitted that despite testimony of the appellant/claimant witnesses and report Ex.P-1 lodged by the respondent No. 1, the learned Claims Tribunal wrongly rejected claim of the appellants. 8. At the time of argument, nobody appeared on behalf of the respondents No. 1 and 2. Learned counsel, who appeared on behalf of the respondent No. 3, supported the finding given by the learned Claims Tribunal that it is not established that due to alleged accident Sunil died. He prays that the findings recorded by the learned Claims Tribunal do not warrant any interference. 9. The point of determination involved in the present appeal is as to whether Sunil died due to alleged accident as claimed by the appellants/claimants and further if Sunil died due to accident, then how much compensation they are entitled from the respondents. 10. As per statement of Ramavtar Chandel AW- 2, on 25.12.2003, Sunil was traveling in a truck Tata 407 bearing registration No. MP06/E0723 as a Cleaner. The offending truck was being driven by the non-applicant/respondent No. 1 Mahesh, who informed on telephone that the vehicle met with an accident near village Kakua. On receiving this information, he went on the spot and brought the dead body of Sunil to Gwalior and thereafter he was cremated. Appellant No. 1 Smt. Ramdevi (AW-1) supported the version of Ramavtar Chandel. Gopal, AW-3, who was the driver of another Tata 407 bearing registration No. MP07/E2783, stated in his examination-in-chief that driver of Tata 407 truck bearing registration No. MP06/E0723 overtook his vehicle, went ahead and hit the truck but he has admitted in his cross-examination that the driver of Tata 407 truck bearing registration No. MP06/E0723 was driving normally. He further admitted that after the accident the police did not have any written report, the matter was reported verbally. 11. He further admitted that after the accident the police did not have any written report, the matter was reported verbally. 11. It is not disputed that none of the witnesses examined on behalf of the appellant stated that Tata 407 bearing registration No. MP06/E0723 was driven rashly and negligently by the respondent No. 1 but it appears from the report Ex.P-1, allegedly lodged by the respondent No. 1 Mahesh in Police Station Malpura, District Agra, that the accident had occurred by dashing of Tata 407 bearing registration No. MP06/E0723 to another unknown vehicle which was going ahead and no evidence was adduced by the respondents in rebuttal of Ex.P-1. Therefore, it is proved that Sunil died of bodily injuries he sustained in the accident. 12. In the absence of any evidence in rebuttal, the testimony of the claimants' witnesses cannot be disbelieved merely on the basis that autopsy report does not prove that injuries found on the body of the decreased were caused in a motor accident. When it is established that the death was due to accident and it is proved by the other relevant evidence also, then the claim petition cannot be dismissed on this ground alone. From the evidence of appellant/claimant, by no stretch of imagination it can be inferred that on the date of incident, the respondent No. 1 was driving the vehicle and dashed another vehicle from the backside, as a result of which Sunil died. 13. Learned counsel for the appellants submits that the report Ex. P-1 was lodged by the respondent No. 1 himself. As per report, Ex.P/1, the accident occurred on account of respondent No.1's falling into doze, therefore, it would be presumed that the vehicle was driven rashly and negligently by the respondent No. 1, but this fact has not been narrated by any of the appellants' witnesses. In the case of Alok Sharma v. Santosh and others, reported in (2014) II ACC 555, Chhattisgarh High Court has observed that it is settled proposition of law that a civil case is decided on its own facts and evidence without being influenced by the documents and decision of the criminal case. Therefore, on the basis of the police report, it cannot be assumed that the accident occurred due to negligence of the respondent No. 1. 14. Therefore, on the basis of the police report, it cannot be assumed that the accident occurred due to negligence of the respondent No. 1. 14. For the sake of argument, even assuming that the vehicle was not driven rashly and negligently by the respondent No. 1, it is proved beyond doubt that the death of Sunil was due to accident with the offending vehicle. 15. The respondent No. 2 is the owner of the vehicle involved in the accident and the vehicle was insured with the respondent No. 3/National Insurance Company Ltd. who is liable to pay compensation on no fault basis under Section 140 of the Motor Vehicles Act to the appellant No.1, who is the mother of the deceased Sunil. So far as the appellant No. 2 is concerned, he is the elder brother of the deceased and it cannot be said that he was dependent on the income of the deceased Sunil. Therefore, only the appellant No.1 is entitled for the compensation. 16. In view of above discussion, the appeal is partly allowed. The award passed by learned Claims Tribunal is hereby set-aside and it is directed that the respondents/non-applicants shall pay compensation of an amount of Rs.50,000/- (Rs. Fifty Thousand Only) with interest @ 6% per annum from the date of filing of the application till realisation to the appellant No.1. Let the amount be paid to the appellant No.1 within a period of two months from today. In the facts and circumstances of the case, parties are directed to bear their own costs.