Aarif Hussain vs Bhuprendra Singh and Others

Arun Bhansali, J.—This appeal has been preferred against the judgment dated 2.8.1999 passed by the Motor Accident Claims Tribunal, Pratapgarh (''the Tribunal''), whereby the application for compensation (''application'') filed by the appellant has been rejected. The brief facts of the case are that the appellant filed the application on account of death of his mother Smt. Sunder Bai with the averment that on 5.2.1989, Smt. Sunder Bai W/o Late Shri Mohd. Hussain was walking on the road at Pratapgarh and the respondent No. 1 Bhupendra Singh, who was driving the motor cycle No. ADG-1924 belonging to respondent No. 2 Vakil Khan rashly and negligently, collided with and injured her, she was taken to hospital where she died.

It was claimed that the age of deceased Smt. Sunder Bai was 55 years and she used to earn Rs. 15/- per day and as the claimant has been deprived of her income and attendance, he was entitled to compensation of Rs. 1 lac on that account and was further entitled to Rs. 1 lac as compensation for the mental distress suffered by him.

A reply to the application was filed by both respondent No. 1-driver and respondent No. 2-owner of the motor-cycle, whereby they disputed the fact that the claimant was son of deceased Smt. Sunder Bai and it was also stated that she died on account of non-attendance at the hospital and not on account of the accident.

Both the respondent No. 1- driver and respondent No. 2 - owner were set ex-parte as after filing the reply they did not participate in the proceedings before the Tribunal. The applicant led evidence and got recorded statements of himself as AW-1, Shamsher Khan as AW-2 and Kailash as AW-3, who supported his version regarding rash and negligent driving by the respondent No. 1 and that the claimant was son of deceased Smt. Sunder Bai.

After hearing the claimant, the learned Tribunal came to the conclusion that neither it was proved that deceased Smt. Sunder Bai died on account of injuries received by her at the time of accident nor satisfactory evidence was produced by the claimant to indicate that he was, in fact, son of deceased Smt. Sunder Bai mainly on account of fact that religion of Smt. Sunder Bai and claimant were different and consequently dismissed the application.

It was contended by learned counsel for the appellant that the findings recorded on both the aspects by the claims Tribunal are ex-facie against the material available on record. Once the respondents were set ex-parte and did not appear in the witness-box, their replies could not have been taken into consideration for coming to the conclusion that the applicant-appellant was not the son of Smt. Sunder Bai. Ultimately, it was prayed that the claim petition may be allowed and the appellant be awarded just and reasonable compensation.

Learned counsel for the respondent No. 2 submitted that there is no material on record to support the case as set up by the appellant and the Tribunal was justified in coming to the conclusion that the claimant has failed to prove negligence and/or his relationship with the deceased Smt. Sunder Bai.

I have considered the rival submissions made by the learned counsel at the Bar.

The findings recorded by the claims Tribunal does not appear to be based on sound reasoning, inasmuch as, beside the claimant, AW-2 and AW-3 have specifically stated that the applicant was son of deceased Smt. Sunder Bai and on account of absence of any evidence in rebuttal, there was no occasion for the claims Tribunal to hold otherwise. Even in the written statement, the driver of the vehicle has alleged that Smt. Sunder Bai died on account of negligence on part of the applicant in her treatment. The very fact that the applicant was alleged to have some responsibility to treat the deceased Smt. Sunder Bai, necessarily means that he was related to deceased Smt. Sunder Bai. Further even in the postmortem report body has been identified by him and his relationship has been indicted as son. Therefore, the finding in this regard being baseless deserves to be set-aside.

So far as the fact that deceased Smt. Sunder Bai suffered injuries in the accident and consequently died on the same day in the hospital are not in dispute in view of the various police documents relating to the accident and on that count, the said finding given by the claims Tribunal about uncertainty of cause of death is also without any basis and same also deserves to be set-aside.

Now the issue of compensation for the death of deceased Smt. Sunder Bai needs to be dealt with. The applicant has claimed himself to be aged 25 years in the claim application, which was filed on 29.5.1989 and age of deceased was 55 years at the time of death. However, when his statement was recorded on 11.5.1998, he gave out his age as 35 years. The basis given out in the claim petition for claiming compensation was that deceased used to earn Rs. 15/- per day and the applicant has been deprived of her income, help and attendance. This is not the case of the applicant that he was wholly dependent on his mother and in the statement, he has given out that he was working as a driver and therefore, apparently, there cannot be any dependency as far as claimant is concerned.

Further the age of the deceased in the postmortem report has been indicated as 70 years and therefore, apparently, the fact that she was earning anything also appears to be a remote possibility.

The claimant has not claimed anything in the claim application towards treatment and/or any other expenses on account of the accident and consequential death of Smt. Sunder Bai.

So far as the issue relating to mental distress and the claim of Rs. 1 lac in this regard is concerned except for one line statement the claimant has failed to place any material in this regard.

In that view of the matter, though the findings recorded by the claims Tribunal regarding cause of death and relationship of the deceased with the claimant are set-aside. However, in view of the fact that the claimant has failed to substantiate his claim for compensation, the application deserves to be dismissed and consequently, the appeal has no substance and the same is also dismissed. No costs.