Jyoti and Others vs Rimpi and Others

A.S. Chandurkar, J.—Admit. In view of order dated 22-7-2015, the appeal is heard finally with consent of Counsel for the parties.

The appellants are the claimants who are aggrieved by the judgment dated 3-9-2010 passed by the learned Chairman, Motor Accident Claims Tribunal, Akola dismissing the application for grant of compensation under Section 166 of the Motor Vehicles Act, 1988.

One Sunil who was working as a mason met with an accident on 12-5-2008 between 7.30 p.m. and 8 p.m. on account of being dashed by an unidentified vehicle. His widow and children, therefore, filed application under Section 166 of the said Act seeking compensation to the tune of Rs. 7,00,000/-. In the application, it was stated that the deceased was aged about 38 years and was earning Rs. 90,000/- per annum. It was further stated that the accident was caused by a Truck bearing registration No. MH 30-L 985.

The claim was contested by respondent No. 2 -Insurance Company by filing written statement vide Exhibit-18. A stand was taken in the written statement that the vehicle that was alleged to have been involved in the accident was not so involved and that there appeared to be collusion between the claimants on one side and the owner and the driver of the vehicle on the other. A further stand was taken that the driver was not possessing valid driving license.

The appellant No. 1 examined herself in support of the claim for compensation and thereafter by the impugned judgment dated 3-9-2010, the Claims Tribunal came to the conclusion that as in the first information report it had been stated that the vehicle involved in the accident was bearing yellow colour and was a tanker, the truck bearing No.MH-30L-985 which was shown to be involved in the accident was different. On that basis, the claim for compensation came to be dismissed.

Shri S.A. Mohta, learned Counsel for the appellants submitted that the Tribunal was not justified in dismissing the claim for compensation. It was submitted that there was sufficient evidence on record including supplementary statements of the concerned parties to indicate involvement of the offending vehicle belonging to respondent No. 1 and, therefore, the claim for compensation ought to have been allowed. It was submitted that in the proceedings before the Tribunal an application below Exhibit-53 had been moved seeking permission to place on record the registration particulars of the offending vehicle and the trial Court had allowed said application. As the offending vehicle was duly registered with respondent No. 2 -Insurance Company, the appellants were entitled to receive compensation. It was submitted that the Claims Tribunal ought to have applied test of preponderance of probabilities and should not have insisted on proof beyond reasonable doubt. In that regard, he placed reliance on the judgment of the Supreme Court in Bimla Devi and Others Vs. Himachal Road Transport Corporation and Others, . He then submitted that the Insurance Company did not lead any evidence to prove its defence. Though the defence regarding non-involvement of the offending vehicle was taken, in absence of any evidence being led by the Insurance Company, the claim could not have been dismissed. It was further urged that the Tribunal should have awarded just compensation considering the facts of the case and in that regard he placed reliance on the judgments reported in Kusum Lata and Others Vs. Satbir and Others, and Ningamma and Another Vs. United India Insurance Co. Ltd., . It was, therefore, submitted that the reasonable compensation deserves to be allowed to the appellants.

Smt. S.P. Deshpande, learned Counsel for respondent No. 2 supported the impugned judgment. It was submitted that the Claims Tribunal was justified in dismissing the claim for compensation. The involvement of the offending vehicle had not been proved. It was submitted that in the first information report, there was reference to the yellow coloured Tanker while subsequently a case was made out that the offending vehicle was a Truck. The owner and driver of the offending vehicle had not been examined. It was submitted that there was no driving license placed on record and even the AA Form was placed on record subsequently. Reference was made to the Insurance Policy at Exhibit-39 to show the name of the vehicle owner and the document at Exhibit-54 showing some other name. It was, therefore, submitted that the Claims Tribunal was justified in rejecting the application for grant of compensation.

The following points arise for determination:

(1) Whether the appellants are entitled for any compensation under Section 166 of the said Act?

(2) What order?

With the assistance of the learned Counsel for the parties, I have gone through the records of the case. The accident in question occurred between 7.30 p.m. and 8 p.m. on 12-5-2008. The first information report at Exhibit-33 refers to an unidentified yellow coloured Tanker giving dash to Sanjay resulting in the fatal accident. The FIR further states that the informant -Vishwas Umale who was travelling with the deceased also fell down due to said dash and was also injured. Thereafter, on 21-5-2008 the supplementary statement of said Vishwas Umale -Exhibit-42 who was also travelling on bicycle with the deceased was recorded. In said statement he referred to the accident taking place between 7.30 p.m. and 8 p.m. and also referred to the offending vehicle being truck No. MH 30-L 985. In said statement, he has further stated that he had also fallen down from his bicycle in the accident and due to shock and fright he had described the vehicle as a yellow coloured tanker. At exhibit-43 is the statement of the driver of said vehicle and at Exhibit-44 is the statement of respondent No. 1 who is the owner of said vehicle. The aforesaid documents were exhibited in the deposition of appellant No. 1 at Exhibit-31. In the cross examination, this witness admitted that she had not witnessed the accident and on the basis of information received from other people, the Truck number was given as 985. Except appellant No. 1, no other witness was examined. Similarly, respondent No. 2 also did not lead any evidence.

It is to be noted that during pendency of the proceedings, an application below Exhibit-53 was moved by the claimants seeking permission to place on record the details of the ownership and registration of the offending vehicle as alleged. By order dated 9-6-2010, this application was allowed and the registration particulars were placed on record at Exhibit-54. For very same vehicle, the Insurance Policy at Exhibit-39 had been placed on record. The said policy indicates the name of the owner as Mr. P.S. Sahani while document at Exhibit-40 which is a goods carriage permit issued by the Regional Transport Authority indicates name of owner as Rimpi Pralhad Singh Sahni.

The Claims Tribunal when rejecting the claim for compensation has taken into consideration the first information report and the fact that same mentioned a yellow coloured Tanker. The supplementary statements have not been considered on the ground that the claimants did not examine those persons thereby depriving the opportunity of cross-examination to the Insurance Company. The Supreme Court in Bimladevi and others has held that the standard of proof beyond reasonable doubt cannot be applied in such proceedings and the case was required to be established on the touchstone of preponderance of probabilities. In Kusum Lata (supra), the Supreme Court held that on an accident being caused, it may not always be possible that the number of the offending vehicle may be noted.

If the material on record is examined on the touchstone of preponderance of probabilities, it cannot be said that the claimants had not proved that death of Sunil had been caused on account of dash being given by the offending vehicle. There is no material on record to disbelieve the statement of Vishwas Umale who was travelling along with the deceased. He had specifically clarified in his supplementary statement that due to shock and fright after falling down from his bicycle, he had mentioned the offending vehicle as a yellow coloured tanker. It was for respondent No. 2 to have taken steps to examine said Vishwas if it intended to discredit his version. It is further to be noted that the accident took place between 7.30 p.m. and 8 p.m. and therefore, there cannot be any daylight at that point of time. Said version of Vilas Umale, therefore, cannot be just brushed aside. The stand taken by the Insurance Company in its written statement was required to be proved by it by leading evidence, but the same has not been done in the present case. Hence, in my view, the material available on record which stands unrebutted is sufficient to conclude that the accident occurred due to involvement of the motor vehicle owned by respondent No. 1 and insured with respondent No. 2. Mere mention of the name in Exhibit-39 as Mr. P.S. Sahani cannot be a ground to defeat the claim of the appellants especially when the other documents on record showed the name of the registered owner which also had initials as P.S. Sahani. Hence, the conclusion of the Tribunal that the claim was not proved is liable to be set aside.

As regards to quantum of compensation is concerned, except bare statement of appellant No. 1 that the deceased was earning Rs. 250/- per day, there is no further evidence on record to substantiate the same. Hence, present is a case where the aspect of notional income will have to be applied. In Laxmi Devi and Others Vs. Mohammad Tabbar and Another, the Supreme Court considered the aspect of grant of compensation on the basis of notional income. It was observed that the notional income of Rs. 100/- per day or Rs. 3000/- per month appeared to be reasonable. On that basis in the present case the annual income after deducting 1/3rd amount for personal expenses would come to Rs. 24,000/- per annum. Considering the age of the deceased, a multiplier of 16 can be taken into account. On that basis, a loss of dependency would come to Rs. 3,84,000/-.

In so far as the loss of consortium, an amount of Rs. 75,000/- and as regards loss of love and affection for the children is concerned, an amount of Rs. 75,000/- could be taken as reasonable compensation. Considering the fact that the deceased was also survived by his parents and considering the age of his mother, an amount of Rs. 50,000/- as compensation in that regards is found reasonable. By adding funeral expenses at Rs. 15,000/- a total compensation of Rs. 6,00,000/- is found just and reasonable compensation in the facts of the case.

In so far as grant of interest on the amount of compensation is concerned, the learned Counsel for the appellants by relying upon the judgment of the Supreme Court in Neeta and Ors vs. Div. Manager, MSRTC, Kolhapur I (2005) ACC 695 submitted that interest @Rs. 9% per annum deserves to be granted. On behalf of the respondent No. 2, it was submitted that even if interest on the amount of compensation is granted to the appellants, the period that was spent in prosecuting the review application deserves to be excluded as the proceedings for review were not at all maintainable and the Insurance Company could not be saddled with liability of interest for said period.

Considering the observations of the Supreme Court in para 13 of the decision in Neeta and others (supra), interest @ 9% per annum can be awarded. At the same time, the submission made on behalf of the respondent No. 2 for excluding the period spent in prosecuting the review application deserves to be excluded for the purposes of grant of interest. Thus, by holding that the appellants would be entitled for grant of interest @9% per annum for the period from 22-8-2008 which is the date of filing of the claim petition till 3-9-2010 when the same was decided, the period from 28-10-2010 till 1-2-2013 is liable to be excluded. Interest would be further payable for the period from 26-6-2013 when the present appeal was filed till realization of the amount of compensation. The point as framed stands answered accordingly.

In view of aforesaid adjudication, the following order is passed:

(1) Claim Petition No. 229/2008 is partly allowed and it is held that the appellants are entitled for compensation of Rs. 6,00,000/- which includes the amount of no fault liability. Out of the total amount of compensation, the appellant Nos. 1 to 5 would be entitled to an amount of Rs. 1,00,000/- each while the appellant Nos. 6 & 7 would be entitled for an amount of Rs. 50,000/- payable to them jointly. As the appellant Nos. 2 to 4 are shown to be minors, the amount payable to them shall be invested in fixed deposit till the period they attain the age of majority.

(b) The amount of compensation shall carry interest @9% per annum which would be payable for the following period:

(i) from 22-8-2008 till 3-9-2010;

(ii) from 26-6-2013 till realization.

(c) The first appeal is allowed in aforesaid terms with no order as to costs.