Chintpurni Devi vs Chander Mohan and Others

Hasnain Massodi, J.—The Civil Ist. Misc. Appeal is directed against judgment/order dated 12.9.2003 of Motor Accident Claims Tribunal,

Jammu whereby the Tribunal has dismissed the Claim Petition titled Sansar Chand v. Chander Mohan.

It appears that Shri Sansar Chand S/o Anant Ram R/o Mastgarh, Jammu was on 12.4.1999 hit by a scooter bearing registration No.JK02-

0294 driven rashly and negligently by Shri Chander Mohan S/o Lakshman Dass R/o Pacci Daki, Jammu Respondent No. 1 herein. The accident

took place outside Hospital at Jammu where the claimant was going to attend his hospitalized son. The accident left the claimant seriously injured

and resulted in fracture in his left leg. The claimant was taken to the hospital and administered medical treatment. The claimant thereafter on

1.2.2001 filed a claim petition u/s 140 read with 166 Motor Vehicle Act against Shri Jagjit Singh S/o Raghunath Singh R/o Mastgarh Jammu

owner of the scooter - Respondent No. 2 herein, Shri Chander Mohan driver of the scooter - Respondent No. 1 and New India Insurance

Company - Respondent No. 3 herein, with which the scooter was insured. The claimant asked for a compensation of Rs. 10,85,000/-

The claim petition was resisted by the Insurance Company on the grounds that no accident as stated in the claim petition ever took place; that

the offending vehicle was driven by a person not holding an effective and valid driving license and that the offending vehicle was driven in

contravention of the terms and conditions of the Insurance Policy. It was further contended that the accident had not taken palace as the report of

the accident was not lodged with the police concerned. It was pleaded that the claimant was not entitled to any compensation.

The owner of the vehicle and its driver opted to stay away from the proceedings and were set ex-parte on 29.09.2001. The Tribunal on

17.11.2001 settled the following issues:

Whether an accident took place on 12.04.1999, near Children Hospital Jammu due to the rash and negligent driving of the offending vehicle No.

JK02/294 by its driver respondent No. 1 in which the petitioner had sustained injuries, if so of what nature? -OPP

If issue No. 1 is proved in affirmative whether the petitioner is entitled to compensation, if so to what amount and from whom? -OPP

Whether the driver of the offending vehicle was not holding a valid driving license at the time of the accident and the vehicle was being driven in

contravention of the terms and conditions of the insurance policy, without R.C, rout permit and fitness certificate etc.? OPR-3

The claimant appeared in the witness box and examined two witnesses namely Mohammad Arif and Dr. Anil Gupta to substantiate his claim.

The respondents on the other hand, did not examine any witness to support their stand or rebut the evidence adduced by the claimant. The

respondents evidence was closed on 19.4.2003. The Tribunal upon hearing counsel for the parties and going through the pleadings and the

evidence on the file, dismissed the claim petition vide its judgment dated 12.09.2003, impugned in the appeal.

The judgment/order dismissing the claim petition is questioned on the grounds that the judgment is against law and facts and liable to be set

aside. It is pleaded that the Tribunal has taken erroneous view of the law, governing the subject and brushed aside the evidence adduced by the

claimant.

It needs to be pointed out that the appellant passed away during pendency of the Appeal and thus Court overruling the objection of the

Respondent No. 3 to the impleadment of legal representatives of the appellant, that the claim petition had abated in wake of death of the appellant

allowed the application for bringing on record legal representatives of the deceased appellant vide order dated 1.12.2008. The decision on the

issue regarding entitlement of the legal representatives to get compensation, was postponed and directed to be dealt with, at the time the main

appeal was decided.

Heard and considered.

The only ground that appears to have weighed with the Tribunal while dismissing the claim petition, was that the claimant had not reported the

accident to the Police Station having jurisdiction and that neither any FIR in connection with the vehicular accident was registered nor a copy

thereof enclosed with he claim petition as required under Rule 310 of Jammu and Kashmir Motor Vehicle Rules 1992. The fate of the present

appeal thus hinges on the answer to the question, whether failure to get FIR registered - place a copy of FIR on the claim petition, is fatal to the

claim petition. It is important to point out that the petitioner adduced evidence in support of the claim petition and the fact that the claimant had met

a vehicular accident involving offending vehicle on the date and place mentioned in the claim petition and sustained injuries in the accident, was

substantiated by the evidence on the file including statement of the Doctor- Dr. Anil Gupta, Assistant Professor Ortho Unit Ist. GMC, Jammu. The

Doctor deposed that on 12.4.1999 that claimant was admitted in the Hospital with fracture of both bones of left leg, was administered treatment

(plaster) and that claimant remained under treatment in the Hospital under OPD ticket/card No. 853 till 12.7.1999. The Doctor has further stated

that during aforesaid period viz 12.4.1999 to 12.7.1999 the plaster was changed three times and that the claimant was finally discharged vide No.

MRD 206686 - EXPW-AG. The Tribunal did not even find it necessary to have a look on the statement of the PW - Dr. Anil Gupta, who had no

axe to grind and no personal agenda to serve while appearing in the witness box. There was nothing before Tribunal to presume that the statement

of Dr. Anil Gupta and for that matter other witness was tainted with bias, was manipulated or outcome of undue influence. The Tribunal brushing

aside the evidence adduced by the claimant, threw out the claim petition only on the ground that no FIR was registered.

The Jammu and Kashmir Motor Vehicle Rule 1991 prescribes the format of an application for compensation, arising out of an accident of the

nature covered under the Motor Vehicle Act. The format- ""Form Comp. A"" of the First Schedule to the Rules in para 9 makes a requirement for

the claimant to record name and address of the Police Station in whose jurisdiction an accident took place or was registered. The very language of

Form Comp. A of the First Schedule to the Rules"" visualizes a situation where FIR is not registered in respect of an vehicular accident at the

Police Station. All that para 9 requires the claimant, is to make mention of the Police Station in whose jurisdiction the accident took place and if it

was registered where the accident was registered.

Rule 310 sub Rule 3(ii) requires the claimant to append amongst other documents the First Information Report in respect of the accident.

When Rule 310 sub Rule 3 (ii) is read with the format prescribed Form Comp. A, It becomes abundantly clear that Rule 310 sub Rule 3 (ii) is only

recommendatory and that cases are conceivable where for one or other reason FIR in respect of vehicular accident may not be registered at the

Police Station. The requirement is only to facilitate expeditious disposal of the claim petition - the main object behind incorporating a chapter

dealing with the claim petitions for compensation in case of vehicular accidents. The view taken by the Tribunal that despite quality of the evidence

adduced by the claimant in support of the claim petition, the claim petition is to be dismissed in case copy of FIR is not placed with the claim

petition is erroneous and untenable.

In R.P. Gautam Vs. R.N.M. Singh and Another, it has been held that registration of the offence and Police Investigation is not condition

precedent for awarding the claim under Motor Vehicle Act. The Court held that only because for one or other reason the Police failed to register a

case, the claimant cannot be deprived of his right to get the compensation under the Motor Vehicle Act. The Court while dealing with the situation

like one with which the Tribunal was confronted observed:

It is settled proposition of law that every civil case is decided on it's own facts and evidence without influencing the papers and decision of the

criminal case. In such premises registration of the offence and police investigation is not a condition precedent for awarding the claim. Besides this

due to one reason or another if the first information report of vehicular accident is not lodged with the police or the same was given at later stage

and police neither registered the offence not investigated the same, it does not mean that right of the victim for compensation who suffered the

vehicular accident is washed away. The victim remains entitled for compensation on proving the facts and circumstances regarding such accident

and factum of injuries sustained by him, he could not be deprived from such right, provided by the Motor Vehicles Act, although such

compensation may be awarded only on proving all relevant facts with all probabilities.

Therefore, it is held hat first information report or police investigation is not always condition precedent for awarding the claim. Claim could be

awarded if the same is proved by admissible evidence with all probabilities. The claim case or its victim could not be left in every case on the

mercy of the police. The court is empowered to examine and adjudicate the case on available evidence, even in those cases in which the police

neither registered the offence nor investigated he same. In a vehicular accident it could not be expected from the victim that before taking treatment

he will go and lodge the report with the police. In such matter priority is always given to the treatment. All these circumstances must be considered

with justice oriented approach.

The Tribunal thus was not right in dismissing the claim petition only on the ground that the claimant had failed to report the accident to the

Police and get case registered and place copy of FIR with Claim Petition. Ld. Counsel for the respondent seeks dismissal of the appeal as also the

claim petition because of a development that has taken place subsequent to the Appeal was preferred against the judgment in question. It is insisted

that as the claim petition was based on personal injury, the right to get compensation extinguished with the death of the claimant. The argument is

based on the main law 'actio personalis moritur cum persona'

A victim of a vehicular accident may because of a vehicular accident suffer a personal loss like discomfort, pain suffering and enjoyment of

attributes of life or future prospects. In case the claimant passes away during pendency of the claim petition or an appeal arising out of the claim

petition, the claim petition may validly be held to have abated but the spillover of a vehicular accident is not restricted only to the personal injury to

the victim of the vehicular accident. The vehicular accident of which a claimant is a victim may create extra ordinary burden on the family coffers or

the family resources on account of medical treatment transportation and like expenditures. Apart from the victim being rendered incapacitated to

make his contribution to the family, the family or the legal representatives may have to pool in their resources or make use of assets of the claimant

to see that the victim recovers from the injury suffered due to the accident. The claim petition as regards such undue spillover on the family

resources or what we call, ""loss to the estate"" cannot be held to abate and the legal representatives of the deceased claimant have a right to

maintain and prosecute the claim petition or the appeal as the case may be. Needless to state that it is for the legal representatives to prove before

the Tribunal that what they claim is a loss to estate of the deceased and not loss on account of personal injury of the deceased. However, if the

death of the claimant is direct result of the injury sustained in the vehicular accident, the position is altogether different and classification of personal

injury and loss to the estate is not required to be made. Any other interpretation is bound to lead to unjust and erroneous conclusions. To illustrate

if a widow or minor children of victim of vehicular accident, who suffers injuries because of the accident are held not entitled to maintain and

continue with the claim petition/appeal in the event the victim passes away during pendency of the claim petition, even in respect of the loss to the

estate of the deceased"" the dependents or legal representatives shall be exposed to immense hardship and frustrate the legislative effort to ensure

that the claim petition under Motor Vehicle Act are put on a fast track and decided with due dispatch. It is settled law that a petition under Motor

Vehicle Act filed by a person injured in a motor vehicle accident for compensation for personal injuries loss of income etc shall abate with the

death of such person provided the death is not direct result of such injuries but such a petition would sustain and may be prosecuted by his/her

legal representatives if it relates to ""loss to the estate"" of deceased person due to injuries sustained in such accident.

In Adapaka Eswaramma and Others Vs. N. Chandra Sekhar, , it has been held that the doctrine is not applicable to a claim petition filed by an

injured in vehicular accident and that the legal representatives are entitled to compensation under medical expenses extra nourishment and general

damages.

In Munni Devi and Ors. v. New India Assurance Co. Ltd. and Ors. 2004 ACJ 97, the injured in the vehicular accident passed away during

pendency of the claim petition and the Insurance Company sought dismissal of the claim petition on the ground that the claim petition stood abated.

The Court held that the parents of the claimant being partially dependent on the deceased, were entitled to claim compensation in the shape of ""loss

to the estate"" of the deceased. The court further held that the cause of action to receive amount of compensation would survive in favour of the

parents and other legal representatives of the person would be entitled to receive compensation. It was held that the amount spent by the injured -

deceased on transportation and nourishment would be treated the loss to his estate.

So viewed, the plea that in wake of death of the claimant during pendency of the claim petition, automatically abated, cannot be sustained. The

legal representatives of the claimant/appellant on the other hand have a right to maintain, prosecute and continue with claim petition and ask the

Tribunal to award such compensation in their favour as represents the ""loss to the estate"" of the deceased. It is, however, for the Tribunal to

determine what compensation is payable to the legal representatives on the said count.

For the reasons discussed above, the Appeal is allowed and the judgment dated 12.09.2003 set aside. The matter is remanded to the Tribunal

with a direction to allow the legal representatives of the claimant to amend the petition, if so advised, so as to make any averments as regards ""loss

to estate"" of the deceased because of the vehicular accident in question and afford the respondents an opportunity to amend their written

statement(s), if so advised, and thereafter deal with the matter in accordance with law.