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2019 DIGILAW 563 (MP)

JAGAT NARAYAN SHARMA v. MITHLESHI ALIAS MITHLA

2019-08-01

G.S.AHLUWALIA

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JUDGMENT G.S. Ahluwalia, J. 1. This Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act against the award dated 13/7/2010 passed by Additional Member, Bhind to the Court of Sixth Additional Motor Accident Claims Tribunal (Fast Track Court) Bhind in Claim Case No.31/2009, by which the insurance company has been exonerated. 2. It is the case of the claimants that on 20/5/2009 the deceased was travelling in a tractor No.MP 30 M 9530 and trolley No.MP 30 M 9531 from Singpura to Daboh and the tractor was being driven in a rash and negligent manner by appellant no.2. Because of rash and negligent driving, the tractor turned upside down resulting in death of the deceased. 3. The appellants filed their written statement and denied that the deceased was travelling in the offending tractor No. MP 30 M 9530 and trolley No.MP 30 M 9531. It was their case that in fact the deceased and other persons were travelling in a tractor No. MP 30 M 2044 from village Singpura to Daboh. It was further pleaded that appellant no.2 was transporting wheat husk in the trolley. On the way, he met with Rakesh Kumar who was with his tractor and he stopped the appellant no.2 for conversation purposes, at that time the deceased persons forcibly and without the permission of appellant no.2 sat in the trolley, as a result of which, the trolley turned upside down because of overweight on one side resulting in death of three persons. The tractor was being driven by appellant no.2 cautiously and not in a rash and negligent manner and thus, the appellants are not liable for payment of any compensation. 4. The Claims Tribunal after recording the evidence of the parties, held that the deceased persons were travelling in the tractor, which was being driven by appellant no.2. The appellant no.2 is being prosecuted on the allegations that he was carrying a Barat and due to rash and negligent driving, the tractor and trolley turned upside down resulting in death of three persons. 5. Challenging the award passed by the Claims Tribunal, it is submitted that in fact the deceased persons had forcibly boarded the trolley in spite of the fact that it was objected by the appellant no.2. 6. Heard learned counsel for the appellants. 7. The appellants have not examined any independent eyewitness in support of their contentions. 5. Challenging the award passed by the Claims Tribunal, it is submitted that in fact the deceased persons had forcibly boarded the trolley in spite of the fact that it was objected by the appellant no.2. 6. Heard learned counsel for the appellants. 7. The appellants have not examined any independent eyewitness in support of their contentions. Further, if somebody had boarded the tractor and trolley without the permission of the driver, then it was not expected of the driver to drive the tractor unless and until the unauthorized passengers de-board the tractor. Further, if the deceased were travelling in another tractors, than there was no reason for them to shift to the offending tractor. Therefore, in absence of any supporting evidence to substantiate, the claim of the appellants that the deceased persons had forcibly boarded the tractor cannot be accepted. Further, it is the case of the claimants that the deceased persons were travelling in the trolley. Under these circumstances, this Court is of the considered opinion that the findings recorded by the Claims Tribunal with regard to the manner in which the accident had taken place do not require any interference. Accordingly, the challenge of the appellants to the exoneration of the insurance company is hereby rejected. 8. It appears that the claimants/respondents no.1 to 6 have also filed a cross-objection for enhancement of award. The cross-objection has been filed on 23/2/2012, whereas, according to the office report, the claimants were served on 10/1/2012. Thus, it is clear that the crossobjection filed by the claimants is barred by time, but no application for condonation of delay has been filed. 9. Further, the claimants have not paid the court fee. 9.1 It is submitted by the counsel for the claimants that the claimants are the indigent persons and, therefore, they may be exempted from payment of minimum court fee. 9.2 The verbal submission made by the counsel for the claimants cannot be accepted. They should have filed an application seeking permission to file the cross-objection as an indigent person and only after obtaining the indigency report, an order could have been passed that whether the claimants are entitled to file the cross-objection as an indigent person or not. Thus, the verbal submission made by the counsel for the claimants with regard to the indigency of the claimants is hereby rejected. 10. Thus, the verbal submission made by the counsel for the claimants with regard to the indigency of the claimants is hereby rejected. 10. It is further submitted by the counsel for the claimants that if this Court after considering the cross-objection filed by the claimants comes to a conclusion that the amount is liable to be enhanced, then the claimants undertake to pay the court fee on the enhanced amount. It is further submitted that it is well established principle of law that if lesser compensation amount has been claimed in the Claim Petition, then while adjudicating the just compensation, the Claims Tribunal can award the higher compensation amount. 10.1 Considered the submissions made by the counsel for the claimants. 10.2 So far as the Claim Petition is concerned, the claimants are required to pay the fixed court fee. Therefore, under that circumstance, if the Claims Tribunal comes to a conclusion that lesser compensation amount has been demanded and the claimants are entitled for higher compensation amount, then even in absence of the prayer, the Claims Tribunal can award the higher compensation amount. However, that proposition of law cannot be made applicable to the cross-objection. Court fee has to be paid in accordance with the claim made in the cross objection and in absence of the court fee, the cross-objection cannot be entertained. 11. Accordingly, the award dated 13/7/2010 passed by Additional Member, Bhind to the Court of Sixth Additional Motor Accident Claims Tribunal (Fast Track Court) Bhind in Claim 6 No.31/2009 is hereby affirmed. 12. Resultantly, the appeal filed by the owner and driver is dismissed. The cross-objection filed by the claimants is also dismissed being barred by time as well as that the same has been filed without making payment of court fee.