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2022 DIGILAW 15 (ALL)

Shiv Shanker v. Jagat Prakash Sharma

2022-01-04

K.J.THAKER

body2022
JUDGMENT : KAUSHAL JAYENDRA THAKER, J. 1. Heard learned counsel for the appellant and learned counsel for Insurance Company. 2. This appeal challenges the judgment and order dated 28.11.1995 passed by Motor Accidents Claim Tribunal/VIII Additional District Judge, Etawah (hereinafter referred to as ‘Tribunal’) in claim petition No. 76 of 1994. 3. The accident in question occurred on the fateful date when the young child of the appellant breathed last while being treated. 4. The Tribunal dismissed the claim petition on the ground that it was not proved that the motorcycle was involved in the accident. The fact that the driver was nabbed at the spot and he took the child to the hospital got admitted and that he was the owner of Hero Honda motor Cycle No. UP-78 E-6622, against whom the charge sheet is laid. 5. The principles for proving an accident are not as stringer as mentioned by the learned Tribunal under Section 166 of the Motor Vehicle Act, 1988. The filing of charge sheet would make the owner and driver are liable as it was prima-facie prove involvement of the vehicle. The judgment of Ajai Prakash vs. M/s National Insurance Company Limited and Others, (2010) 2 ALJ 1787 would come to the aid of the appellants. The provision of Motor Vehicles Act, 1988 have to be read so as to further beneficial legislation. 6. In our case the Tribunal has totally mislead itself into not believing the testimony of PW-1 and 2 who have withstood the cross examination. Just because the name of the driver was not mentioned in the FIR, cannot be ground to dismissing the petition. The driver was taken to Dr. Suresh Sharma also dismissal of claim petition is bad in eye of law. 7. The judgment of Supreme Court in Anita Sharma vs. New India Assurance Company Limited, (2021) 1 SCC 171 will apply to the facts of this case. The negligence is proved beyond reasonable doubt by the evidence led before the Tribunal. The record and oral and documentary evidence led before the Tribunal below while dismissing the claim petition for claiming compensation for death of a minor son of the claimants by assigning reasons which are not germane to the facts and one of the reason is that the claimants did not examine the person who caught hold of the driver on spot had not been examined. This is a a hyper technical stand taken by the Tribunal in holding that the claimants had failed to prove the involvement of the vehicle. The accident which took place on 17.2.1994 can be said to have been proved as the driver of the motorcycle was nabbed at the place of the accident. The chick report was also on record. Charge sheet was led on 23.2.1994. The deceased died on 19.2.1994. The fact that Vijay Kumar took the child at the Etawah Hospital. Just because name of the owner was not given it cannot be said that the accident did not take place with the said motorcycle. PW-2 has deposed on oath and has proved the contends of FIR. PW-1 was an eye witness who has deposed manner in which the accident took place. PW-1 and PW-2 have corroborated each other. The fact that neither the motorcycle's driver and the owner have not stepped into the witness box to prove the contents of the reply. Thus the finding is perverse cannot be sustained. Once the charge sheet, FIR is filed, involvement of the vehicle is prima-facie proved it goes without saying that in absence of pleadings by the respondent-driver who has not stepped into witness box it will be have to be held that the driver was involved in committing the accident. 8. Recently in First Appeal From Order No. 4022 of 2017 (Om Pal Singh vs. National Insurance Company Ltd. and Others), decided on 19.12.2017, this Court has held that Commissioner and Motor Accident Tribunal are not civil Court and trappings of civil procedure should not be made fully applicable to the proceedings in the Tribunal. I am supported in my view, on the decision of Apex Court in United India Insurance Company Ltd. vs. Anwari and Another, 2000 (38) All. 761, thus the question whether the deceased died out of accident injuries is proved. The Insurance Company has though heavily relied on the FIR and has relied on the decision of Apex Court in National Insurance Company Ltd. vs. Mt. Param Pal Singh, 2008 (3) T.A.C. 378 (Del.) and on the decision of Orrisa High Court in Smt. K. Mallika vs. Executive Engineer, Potteru Irrigation Division, Balimela, 2000 (1) T.A.C. 549 (Ori) cannot be invoked as there is perversity in finding of the Tribunal below that the deceased did not die out of accidental injuries. 9. Param Pal Singh, 2008 (3) T.A.C. 378 (Del.) and on the decision of Orrisa High Court in Smt. K. Mallika vs. Executive Engineer, Potteru Irrigation Division, Balimela, 2000 (1) T.A.C. 549 (Ori) cannot be invoked as there is perversity in finding of the Tribunal below that the deceased did not die out of accidental injuries. 9. Recently the Division Bench of this High Court in First Appeal From Order No. 3380 of 2003 (Smt. Jagriti and Others vs. The New India Assurance Company Limited and Others) decided on 12.12.2021 has laid down the law in such matter which will also be applied to the facts of this case. The operative portion of paragraph No. 13 of the judgment dated 12.12.2021 read as follows: “13. As the matter has remained pending for 17 years before this High Court and the destitute family has not got any amount of compensation despite we feel that the family members who was the earning member is lost in the accident, but as the Insurance Company has contended that the driving license was fake and they have not filed appeal because that issue was never decided. As far as, the claimants are concerned as the accident is of the year 1999 and the family has been deprived of compensation. We would take help of judgment of the Apex Court in Bithika Mazumdar and Another vs. Sagar Pal and Others, (2017) 2 SCC 748 , we would venture to decide the quantum as empowered under section 173 of the Motor Vehicles Act, on the principles of grant of compensation for death and injury.” 10. As the appeal has remained pending for more than two decades before this High Court and the accident having taken place when the appellants (parents- father and mother) of the deceased were in the prime of their youth and were aged 28 and 25 years respectively and lost aged about seven years who have been left without any compensation for the untimely death of their only child. The Courts in 1994 for a death of seven year old child were granting a sum of Rs. 1,56,000/- as award with 6% rate of interest. The same requires to be done in this matter also. This Court has perused the documents and the detail copy of registration of the vehicle, the copy of policy which is invoked on the date of accident. 1,56,000/- as award with 6% rate of interest. The same requires to be done in this matter also. This Court has perused the documents and the detail copy of registration of the vehicle, the copy of policy which is invoked on the date of accident. Driving licence of Jagat Prakash is also on record it can be seen and it is proved that the vehicle was insured and was plied as per the principles which would not permit the Insurance Company to avoid its liability and they would have to indemnify the third party and the vehicle was plied by authorized driver and that the vehicle was insured with them. 11. The appeal is partly allowed. The respondent-Insurance Company shall deposit the amount of Rs. 1,56,000/- within a period of 12 weeks from today with interest at the rate of 6% from the date of filing of the claim petition till the amount is deposited. The record and proceedings be sent back to the Tribunal forthwith. 12. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma vs. Venugopal, 2012 (1) GLH (SC) 442, the order of investment is not passed because applicants /claimants are neither illiterate or rustic villagers. 13. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani vs. The Oriental Insurance Company Ltd. 2007 (2) GLH 291 , total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs. 50,000/- insurance company/owner is/are entitled to deduct appropriate amount under the head of “Tax Deducted at Source” as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No. 1 of 2020 in First Appeal From Order No. 23 of 2001 (Smt. Sudesna and Others vs. Hari Singh and Another) while disbursing the amount. 14. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.