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2018 DIGILAW 11 (ALL)

RAMESH CHAND v. KALICHARAN @ KALLU

2018-01-03

K.J.THAKER

body2018
JUDGMENT Hon’ble Dr. Kaushal Jayendra Thaker, J.—Though this is an appeal of the year 1997, none appears for New India Assurance Company Limited though 22 years have elapsed. 2. This appeal at the behest of claimant challenges the judgment and award of the Tribunal dated 14.2.1997 passed by Motor Accident Claims Tribunal, Agra, in M.A.C.P. No. 352 of 1992. 3. Facts are not necessary in the case as the accident is admitted. The Insurance company has not appeared before this Court. The owner accepted the accident but the Tribunal in misreading of facts rejected the claim petition. The vehicle was insured is proved by and is born out from the documents produced in the record. The Tribunal could not have taken a different view and change its view taken by R.M. Rai, who had held in favour of the claimant vide order dated 9.3.1993. The application under Order 6 Rule 17 was given only with a view to add the insurance company, which was granted and reply was also filed by the Insurance company, wherein it did not take the stand that the vehicle was not involved. The A.D.J. could not have re-appreciated the evidence and non suited the claimant. This is a second matter where I find that this Tribunal (Sri A.A. Siddiqui) is in a habit of re-appreciating evidence and taking a contrary view in Rinkoo v. Satnam Singh, 2018(1) ADJ 414 . I have deprecated the habit of re-appreciating and rejecting the claim petition and taking a contrary view then that taken earlier by the Tribunal presided over by another Judge. Hence the appeal will have to succeed. 4. While going through the records which is available, it is very clear and rightly pointed out by Sri Madhav Jain that no evidence in rebuttal was ever led by the owner and the Insurance company to prove that there was no negligence despite that the Tribunal on its misinterpretation of factual data has non-suited the claimants, who were the heirs of the deceased. 5. The factual data goes to show that the driver of the Metador even presented himself before the police station. Charge-sheet was laid against him. First Information Report was laid against him. 5. The factual data goes to show that the driver of the Metador even presented himself before the police station. Charge-sheet was laid against him. First Information Report was laid against him. Despite that the Tribunal holds that there is doubt about accident having taken place and in the alternative holds that there is lack of pleadings as to negligence of the drivers of the vehicle involved. It is submitted that the findings are not only perverse but require interference on the following grounds : (i) As per Section 154 of The Evidence Act ; and (ii) The involvement has been proved despite that the Tribunal has held that involvement is not proved. 6. The provisions of Order VI Rule 12 of C.P. Code, 1908, is and was to be invoked in the facts of this case as the owner has accepted that the accident occurred due to involvement of his vehicle. The question of collusion does not arise. The Tribunal has tried MACP as if it is a criminal trial. The post-mortem report also proves that the accident occurred due to involvement of vehicle which resulted into death of the deceased. The Insurance company did not lead any evidence to establish its case despite that the Tribunal has dismissed the claim petition on over hyper technical reason as if F.I.R. is the whole truth and on that basis the claim petition was dismissed. The reasonings given are not only perverse but require interference by this Court. 7. This finding is bad in the eyes of law. The Tribunal has grossly erred in relying on the F.I.R. and the maxim “Falsus in uno falsus in omnibus” is not applicable in India. The Tribunal having accepted the F.I.R. version rejecting the oral testimony before it has and has committed perversity. The involvement of the vehicle has been well established. The owner and the driver accepted the factum of accident, the involvement of the vehicle. The only aspect which was negatived goes about negligence. The claim petition was under Section 163 A and hence the issue of negligence had not to be decided just because Naresh Kumar did not know the number of the Metador, it cannot be said that the vehicle was not involved. The only aspect which was negatived goes about negligence. The claim petition was under Section 163 A and hence the issue of negligence had not to be decided just because Naresh Kumar did not know the number of the Metador, it cannot be said that the vehicle was not involved. The respondent having accepted the facts, they did not produce or lead any evidence nor was the petitioner required to just because driver Ajit has been produced, the claim cannot be thrown out. The F.I.R. Punchnama goes to show that the appellant has proved that the accident occurred due to rash and negligent driving of the vehicle. The charge-sheet having been laid against the driver and he not having entered the witness box, adverse inference should have been drawn in favour of the claimant. 8. The decision of the Apex Court in Gunnana Pentayya @ Pentadu and others v. State of A.P., 2008 AIR SCW 6132, will permit this Court to hold in favour of the appellant and hold that the claim petition could not have been rejected. 9. Recently, the Apex Court in Bithika Mazumdar and another v. Sagar Pal and others, (2017) 2 SCC 748 , has held that as much time has elapsed and the record is before the Court, the Court can fix the compensation also. Hence, considering the age of the deceased to be 48 years as per judgment in Smt. Sarla Verma and others v. Delhi Transport Corporation and another, 2009 ACJ 1298 , as the accident is of the year 1992, a notional income in those days of a housewife can be considered to be Rs. 15,000/- per annum and 1/3rd will have to be deducted for her personal expenses and multiplier of 13 would be applicable namely the family would be entitled to a sum of Rs. 10,000.00 x 13 = Rs. 1,30,000/- plus 25% would be added towards future prospect which would be rounded up to Rs. 30,000/- and other Rs. 20,000/- for other non-pecuniary amount as it is case of 1992 to which 9% rate of interest would be admissible from the date of filing of claim petition till the judgment in the Tribunal and 6% thereafter in the peculiar facts and circumstances of the case. 10. The appeal stands allowed. The judgment of the Court below is modified accordingly. A sum of Rs. 10. The appeal stands allowed. The judgment of the Court below is modified accordingly. A sum of Rs. 1,80,000/- and interest as in paragraph No. 7 be calculated and deposited. The amount be deposited within 8 weeks from today before the Tribunal. 11. A copy of this judgment be sent to the New India Assurance Company Limited-respondent No. 2.