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2023 DIGILAW 2056 (ALL)

Jabriel Khan v. Hari Shanker Misra

2023-08-25

JASPREET SINGH

body2023
JUDGMENT Jaspreet Singh, J. Heard learned counsel for the appellants. 2. The instant appeal has been preferred under Section 110-D of the Motor Vehicles Act, 1939 assailing the award dated 20.11.1991 wherein in a death case the Tribunal has awarded a sum of Rs.24,200/- alongwith 9% interest from the date of the claim application till the date of this recovery. 3. Before adverting to the submissions of the learned counsel for the appellants, it will be relevant to notice a brief resume of facts giving rise to the instant appeal. 4. Claim petition bearing No.62 of 1988 was filed by the original claimant-respondents against Jabriel Khan and Mohd. Khalid Khan the driver and the owner of the offending vehicle in question. As per the averments made in the claim petition, it was stated that on 08.05.1988 the father of the claimant-respondents, namely, Ambika Dutt Mishra was riding on his bicycle, however, a tractor bearing number URI/3694 was being driven rashly and negligently by the appellant no.1, as a result he hit the bicycle of Ambika Dutt who was crushed under the tractor. He received grievous injuries and the bystanders carried Ambika Dutt to the police station where he lodged a report against the appellant no.1. Thereafter he was taken to the district hospital where he under went treatment but unfortunately in the intervening night of 8/9.05.1988 he passed away. It is in the aforesaid context that the claim petition came to be filed. 5. The appellants filed a joint written statement and contested the claim primarily raising two pleas:-(i) the tractor in question was not involved in the accident at all; (ii) Ambika Dutt was riding his bicycle and another vehicle (Jeep) which belonged to a third party was being driven rashly and negligently who hit the bicycle of Ambika Dutt which was the actual cause of the accident i.e. the Jeep. There was no rashness or negligence of the appellants nor the said tractor was involved. In the aforesaid circumstances, it was stated that the claim petition deserves to be dismissed. 6. Upon exchange of pleadings, the Tribunal framed seven issues and after considering the oral as well as documentary evidence, the Tribunal recorded a finding that the accident was an outcome of rash and negligent driving of the appellant no.1. It was also found that the tractor involved in the accident belonged to the appellant no.2. 6. Upon exchange of pleadings, the Tribunal framed seven issues and after considering the oral as well as documentary evidence, the Tribunal recorded a finding that the accident was an outcome of rash and negligent driving of the appellant no.1. It was also found that the tractor involved in the accident belonged to the appellant no.2. The age of the deceased Ambikat Dutt was held to be 68 years and considering the evidence available on record regarding the longevity in the family, the Tribunal noticed that since Ambikat Dutt did not suffer from any ailment and was fit enough to do his farming as well as ride a bicycle, accordingly he would survive for a further period of six years. It was also noticed that since he had more than three acres of land from which he was doing his farming apart from the fact that he was also doing astrological prediction (Jyotshi), accordingly he was able to earn Rs.1000/- every month. Considering the expenses incurred over his expenditure, mental trauma, funeral expenses and other such non-pecuniary heads the Tribunal awarded a total sum of Rs.24,200/- alongwith 9% interest by means of award dated 20.11.1991. It is this award which is under challenge before this Court. 7. Learned counsel for the appellants vehemently argued that the Tribunal has completely misread the evidence; inasmuch as there were no witnesses worth its name who actually proved the occurrence of the accident as well as the involvement of the tractor in question. Without actually first ascertaining the involvement of the tractor and in absence of any cogent evidence merely because the tractor of the appellants was present at site, it has been falsely implicated. 8. It is also urged by the learned counsel for the appellants that actually it was the appellants who have taken Ambika Dutt on his tractor to the police station and thereafter admitted him in the district hospital but on account of jealousy and some hard feelings, the appellants have been falsely roped in the accident and their tractor has been implicated. This aspect of the matter has not been appropriately considered by the Tribunal resulting in sheer miscarriage of justice and in the aforesaid circumstances, the appeal deserves to be allowed. 9. The record further indicates that the respondent no.2 had expired and his legal heirs have been brought on record. This aspect of the matter has not been appropriately considered by the Tribunal resulting in sheer miscarriage of justice and in the aforesaid circumstances, the appeal deserves to be allowed. 9. The record further indicates that the respondent no.2 had expired and his legal heirs have been brought on record. However, despite the name of Ashok Kumar Mishra and A. K. Verma is printed in the cause list as counsel for the respondents yet none has put in appearance. The Court noticing that the appeal is of the year 1992 relating to an accident which occurred on 08.05.1988 as well as the fact the appeal has been sufficiently adjourned on the earlier occasions has proceeded to hear the counsel for the appellants in absence of the respondents. 10. Having considered the aforesaid submissions and from the perusal of the material on record, this Court finds that there were clear statement given by the claimants which was also corroborated by the evidence filed by Lallu Prasad, Ghanshyam, Nanku Prasad and Dwarika Prasad who were present and had seen the accident. There is a categorical and a positive statement stating that it was the tractor of the appellants which was being driven rashly and negligently by the appellant no.1 who had hit the bicycle of Ambika Dutt. It was also stated that the bystanders had surrounded the appellant no.1 and considering the condition of Ambikat Dutt, they persuaded the appellant no.1 to reverse the tractor so that Ambika Dutt could be rescued from under the tires of the tractor trolley thereafter he was taken to the police station where Ambika Dutt was in his senses and in presence of the doctor he had given a statement clearly indicating that the accident was caused by the appellant no.1. Thereafter he was taken to the district hospital where unfortunately in the intervening night, he expired. Thus, statements given by the persons who were the bystanders and had witnessed the accident and this could not be shown to be incorrect and no evidence was led to indicate that there was any doubt over the veracity of the statement of said witnesses. 11. On the other hand, the appellants had filed their affidavits but apart from the bald statements that it was a third party Jeep which was the caused of accident, could not establish the same. 11. On the other hand, the appellants had filed their affidavits but apart from the bald statements that it was a third party Jeep which was the caused of accident, could not establish the same. It is most unlikely where in a busy street an accident takes place and the bystanders witness the same, there was no explanation why the tractor of the appellants was implicated if the accident had been caused by another third party Jeep. The appellants could not indicate the reason for any jealously or hard feelings between the deceased and his family and that of the appellants especially when they were not related in any manner whatsoever, in any degree. 12. It is stating a wholesome view of the facts and circumstances, the Tribunal has arrived at the finding which are pure findings of fact derived from the realm after appreciation of evidence. 13. In light of the evidence which was held and in absence of any patent illegality in the appreciation of evidence by the Tribunal, this Court does not find that there is any error in the decision of the Tribunal which may persuade this Court to interfere. 14. In view of the aforesaid, this Court is of the firm opinion that the appeal is sans merit and is accordingly dismissed. In the facts and circumstances, there shall be no order as to cost. 15. The appellants are directed to pay the entire amount with uptodate interest to the claimant-respondents within a period of 60 days from the today. Any amount already paid to the claimants shall be deducted from the aforesaid some and any amount deposited before this Court shall stand remitted to the Tribunal to be released in favour of the claimants. The record of the Tribunal shall be returned forthwith.