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2019 DIGILAW 2694 (PNJ)

Mrs. Bhawna Sharma v. Ram Davan

2019-09-27

H.S.MADAAN

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Judgment Mr. H.S. Madaan, J.:-Briefly stated, facts of the case as per the version of theclaimants are that Ms.Balwant Gargi along with her co-employee SaurabhChawla were returning to Faridabad from Noida in an Indica car bearingregistration No.HR38N(T) 3004, which was being driven by Lalit Sharmaand when they reached near turning of Bata on G.T. Road, a truck bearingregistration No.HR-38G-9784 (hereinafter referred to as the offendingvehicle) being driven by respondent No.1--Ram Davan in a rash andnegligent manner at a high speed without blowing horn, came frombehind and while trying to overtake the car, struck against it on the driverside; all the occupants of the car sustained injuries; formal FIR withregard to the accident was lodged. Lalit Sharma and Ms.Balwant Gargisuccumbed to the injuries. 2. The parents of deceased Smt.Balwant Gargi, namely,Sh.Mohinder Singh--father and Mrs.Suraj Kanwal - mother had brought aclaim petition bearing MVA No.178 dated 5.10.2007 against respondentsi.e. Ram Davan--driver, Rattan Lal Goyal--owner and United IndiaInsurance Company Ltd. - insurer of the offending vehicle, claimingcompensation to the tune of Rs.25 lakhs. 3. The legal representatives of deceased Lalit Sharma i.e.Smt.Bhawna Sharma--wife, Baby Riya, aged about three and half years--minor daughter, Master Madhav Sharma, aged about two years--minorson and Smt.Usha Sharma--mother had also brought a claim petitionbearing No.RBT/143 dated 23.10.2008 against the above-saidrespondents, claiming compensation to the tune of Rs.15 lakhs. 4. Since both the claim petitions arose out of the same accident,those were consolidated and tried together by Motor Accidents ClaimsTribunal, Faridabad (hereinafter referred to as the Tribunal). 5. Issues on merits were framed and the parties were affordedadequate opportunities to lead evidence. 6. On conclusion of trial, both the claim petitions weredismissed by the Tribunal vide Award dated 20.10.2009. 7. The claimants in Claim Petition No.RBT/143 dated23.10.2008 have approached this Court by way of filing an appeal prayingthat the impugned award passed by the Tribunal be set aside and theirclaim petition be accepted and compensation be awarded to them. 8. On notice, respondents No.1 to 3 have appeared throughcounsel. 9. I have heard learned counsel for the parties besides goingthrough the record. 10. To prove that the accident in question had taken place due torash and negligent driving of the offending truck by respondent No.1--Ram Davan, the claimants had examined HC Om Parkash as PW2, whohad brought the summoned record proving the copy of FIR as Ex.P2.PW6 Rakesh Kumar had provided the eye-witness account of theaccident. 10. To prove that the accident in question had taken place due torash and negligent driving of the offending truck by respondent No.1--Ram Davan, the claimants had examined HC Om Parkash as PW2, whohad brought the summoned record proving the copy of FIR as Ex.P2.PW6 Rakesh Kumar had provided the eye-witness account of theaccident. Since he had not supported the case of the claimants fully, hewas got declared a hostile witness and was confronted with his previousstatement Ex.P6. PW9 Saurabh Chawla in his affidavit Ex.PW9/Aprovided eye-witness account of the accident supporting the case of theclaimants on material points. It was he who had lodged FIR Ex.P2regarding the accident. PW8 Mahender Singh, Ahlmad had brought thesummoned file and stated that Ram Davan was facing trial and the vehiclehad been taken on superdari on 10.7.2007. Learned counsel for theclaimants had tendered copy of report under Section 173 Cr.P.C. asEx.P19. 11. In rebuttal, respondent No.1 had got his statement recorded asRW2 submitting his affidavit Ex.RW2/A denying the accident stating thathe had written an application to the police authorities on 10.7.2007 whenhe was falsely implicated by the police in collusion with the claimants.However, he admitted that he was facing trial. 12. The findings of the Tribunal on issue No.1 are obviouslyerroneous based upon wrong interpretation of law and misappraisal ofevidence. Learned Tribunal proceeded to decide the issue as if it wasdealing with a criminal case and not a petition for compensation underSection 166 of the Motor Vehicles Act. The standard of proof in acriminal case is very strict since life and liberty of a person is involved, assuch the prosecution is required to prove its charge against the accusedbeyond a shadow of reasonable doubt and as per principles of criminaljurisprudence prevalent in our country, hundreds of guilty persons may goscot-free but even one innocent should not be punished. While dealingwith cases of civil nature, the yardstick to be used is preponderance ofprobabilities. 13. Furthermore, Section 166 of the Motor Vehicles Act is apiece of welfare legislation. It was enacted to provide promptcompensation to persons, who sustained injury or owner of the propertydamaged or to legal representatives of person, who got killed in a roadside accident. Hyper technical approach is not to be adopted whileadjudicating such type of petitions. 14. The Tribunal was influenced by the fact that the vehiclenumber and the name of the driver are not mentioned in the FIR. Hyper technical approach is not to be adopted whileadjudicating such type of petitions. 14. The Tribunal was influenced by the fact that the vehiclenumber and the name of the driver are not mentioned in the FIR. But thenFIR is not a substantive piece of evidence and its only purpose is to set thecriminal machinery in motion. FIR is often lodged in hurry and it may notcontain the minute and precise details of the incident. The FIR can be gotregistered by a person, who may not be an eye-witness of the same. It isonly during investigation of the case that police can come to know aboutthe culprit and criminal, who had committed the crime. 15. The fact remains that respondent No.1 was booked forcausing death of deceased in the motor vehicular accident by his rash andnegligent driving of the offending motorcycle. The investigating agencyhad found evidence against him, for that reason he was sent up to facetrial, formal charge had been framed against him, the prosecution hadadduced evidence. The judgment of a criminal Court is not binding uponthe Civil Court or Tribunal under motor vehicular accident. The Tribunalhas to reach its own conclusion on the basis of evidence adduced before it,therefore such contentions put forward by learned counsel for theappellant--insurance company do not result in finding fault with verdictgiven by the Tribunal in the form of impugned award. 16. In Girdhari Lal Versus Radhey Shyam and others, 1994(1)ACJ 168, it was observed that when a driver is tried on account of rashdriving that leads to a prima facie conclusion that the accident occurreddue to his rash and negligent driving. 17. Under the circumstances, the verdict recorded by the Tribunalon issue No.1 is not sustainable and is set aside holding that respondentNo.1 was author of the accident by his rash and negligent driving of theoffending truck in which Lalit Sharma had suffered injuries to which hehad succumbed. 18. With regard to quantum of compensation payable to the legalrepresentatives of deceased Lalit Sharma, the Tribunal has assessedincome of the deceased to be Rs.4,000/- and his age was taken to be 32years. However, no addition towards future prospects was made. 19. In view of the guidelines laid in the judgment National Insurance Company Limited Versus Pranay Sethi and Ors., 2017(4)RCR(Civil)1009, by the Apex Court, keeping in view the age of deceasedto be 32 years, 40% of the amount is to be added towards futureprospects. However, no addition towards future prospects was made. 19. In view of the guidelines laid in the judgment National Insurance Company Limited Versus Pranay Sethi and Ors., 2017(4)RCR(Civil)1009, by the Apex Court, keeping in view the age of deceasedto be 32 years, 40% of the amount is to be added towards futureprospects. Doing that the monthly income of the deceased is taken asRs.4,000 + 1,600 = Rs.5,600/-. 20. In terms of the ratio of authority Smt.Sarla Verma and others Versus Delhi Transport Corporation and Anr.,  2009(3)RCR(Civil)77 by Hon’ble Supreme Court deduction of 1/4th is to be madetowards personal expenses. Doing that the dependency of claimantscomes out to Rs.4,200/- per month, annual dependency comes out toRs.4,200 x 12 = Rs.50,400/-. 21. As per guidelines laid down in judgment Smt.Sarla Verma and others Versus Delhi Transport Corporation and Anr.(supra)multiplier of 16 would be appropriate. Doing that the compensationpayable comes out to Rs.56,700 x 16 = 8,06,400/-. 22. In view of the ratio of authority National Insurance Company Limited Versus Pranay Sethi and Ors.(supra), the claimantsare entitled to get compensation under conventional heads i.e. Rs.15,000/-on account of loss of estate, Rs.40,000/- towards loss of consortium andRs.15,000/- as funeral expenses, total Rs.70,000/-. The total compensationcomes out to Rs. 8,06,400 + 70,000 = 8,76,400/-. The claimants would beentitled to get interest @ 7.5% per annum from the date of filing of theclaim petition till actual realization. 23. Of the compensation awarded, the liability shall be joint andseveral of both the respondents. The amount shall be apportioned asfollows: 1. Petitioner No.1--Smt.Bhawna(wife) 40% 2. Petitioners No.2 and 3--Riya and Madhav(minors) 25% each 3. Petitioner No.4--Smt.Usha Sharma(mother) 10% 24. It is directed that the shares of minor petitioners/claimantsshall be kept deposited in the form of fixed deposit with somenationalized bank for the period till they attained majority. Therefore, the appeal stands allowed accordingly.