Narayan Kahar vs Mukesh Kumar Chourasiya and Another

Rajendra Menon, J.—As all the three appeals filed u/s 173 of the Motor Vehicles Act arise out of the same accident and as challenge is made to three different awards passed by the Additional Motor Accident Claims Tribunal, Gadarwara, District Narsinghpur in three different claim cases, rejecting all the three claims on identical grounds, all the three appeals are being decided by this common order. For the sake of convenience, documents and pleadings available in the record of M.A. No. 4733/2008 is being referred to. All the three appellants namely-Narayan Kahar, Dalchandra Kahar and Ramdayal Kahar, belong to the same family. They are related to each other and it is said that on 12.4.2007, at about 3.00 PM, they were travelling in an auto rickshaw bearing registration No. MP-49-R-0166. They were coming from village Bachai to Gadarwara in the auto rickshaw which was owned and driven by respondent No. 1 Mukesh Kumar Chourasiya and insured with respondent No. 2. It is said that when the auto rickshaw reached a place between Bohani and Gram Kudia, because of the rash and negligent manner in which respondent No. 1 was driving the auto rickshaw, it turned turtle when an unknown truck coming from the opposite side dashed against the vehicle in question. As a result of the accident, all the three claimants suffered injury.

As far as claimant Narayan Kahar, in M.A. No. 4733/2008, is concerned, he is said to have suffered grievous injuries on his leg, including multiple fracture. He was taken to the District Hospital, Gadarwara from where a report was lodged with regard to the accident in Police Station Gadarwara. The case was registered as Crime No. 174/07 and this appellant remained in hospital under treatment for a period from 12.4.2007 to 21.4.2007. After his discharge he filed a claim petition u/s 166 claiming compensation of Rs. 13,14,000/-. His claim case was registered as Claim Case No. 18/2008 and by the impugned award dated 4.9.2008. Even though it is found that the because of the accident he has suffered injuries and was entitled to certain amount of compensation as assessed in the award, but the claim has been dismissed on the ground that the negligence of the driver and owner of the auto rickshaw i.e.. respondent No. 1 is proved and, therefore, the claim is unsustainable and as the owner, driver and insurance company of the truck was not a party, no award is passed. Challenging this award, this appeal has been filed by appellant Narayan Kahar.

Similarly, in M.A. No. 4735/2008, appellant Ramdayal Kahar had filed Claim Case No. 64/2008, which has been decided vide award dated 4.9.2008. Appellant also suffered grievous injury in his left leg and claimed compensation of Rs. 9,70,000/-. Even though the Tribunal found that because of the injuries suffered he was entitled for certain compensation, but holding that the negligence of the respondent No. 1 owner and driver of the auto rickshaw is not proved, the claim has been dismissed holding that the accident occurred because of the negligence of the truck driver and not the negligence of respondent No. 1.

Similarly, in M.A. No. 4734/2008, claim of appellant Dalchandra Kahar is also rejected on identical consideration in Claim Case No. 16/2008, vide award-dated 4.9.2008.

In all the three appeals, the learned Tribunal has found that in the First Information Report (hereinafter referred to as ''FIR'') lodged by appellant Ramdayal Kahar, which was registered as Crime No. 174/07, it is indicated that a truck was coming in a rash and negligent manner from the opposite direction and because of the intensity of the headlight thrown by the truck on the road, respondent No. 1-the driver and owner of the auto rickshaw, lost balance and the auto turned turtle after it was hit by the truck. However, in the FIR as no ground of negligence of respondent No. 1 was stated and as there was some discrepancy in the statement of the witnesses recorded, the learned Tribunal taking note of all these factors has dismissed the three claim cases on the ground that negligence of respondent No. 1-the driver and owner of the auto rickshaw, is not proved and, therefore, the claims cannot be allowed.

Shri Pranay Verma and Shri K.S. Jha, learned counsel for the appellants, took me through the FIR-Ex. P/1, the statement of the witnesses examined-particularly the appellants, to emphasize that merely because there is some minor discrepancy in the statement recorded in the Tribunal and in the FIR, the claims could not be rejected.

It was emphasized by them that in the statement recorded before the Court it is specifically stated that the accident took place because of the negligence of the driver of the auto rickshaw-respondent No. 1, but on the ground that negligence of the driver of the auto rickshaw is not mentioned in the FIR, the claims are rejected. It is stated that the learned Tribunal took a very hyper technical view and analysed the evidence as if it was considering the discrepancy in the FIR, in a criminal case. Submitting that the claim petitions have been rejected on improper consideration and the evidence available on record does prove the occurrence of the accident due to the negligence of the driver of the auto rickshaw, learned counsel prays for awarding the compensation as determined by the Tribunal by contending that the said determination is not challenged either by the Insurance Company or by respondent No. 1.

Shri Sankalp Kochar and Shri V. Mishra, learned counsel for respondent No. 1, argued that the discrepancy in the FIR and the statement of the witnesses recorded is fatal in nature, the true story of the incident is indicated in the FIR and as the negligence of respondent No. 1 is not established from the FIR, the Tribunal has not committed any error in rejecting the claim.

Having heard learned counsel for the parties and on a perusal of the records, it is clear that the claim cases have been rejected mainly on the ground that negligence of the owner and driver of the auto rickshaw-respondent No. 1 is not proved.

Even though the Insurance Company raised an objection before the Tribunal with regard to the driver not possessing a valid license to drive the vehicle and some breach of the insurance conditions and the respondents had also challenged the quantification of complainant in the claim petition made before the Tribunal, but all these pleas have been decided by the learned Tribunal in favour of the claimants and there is no challenge to this part of the award either by the Insurance Company or by respondent No. 1-the owner and driver of the vehicle in question. That being so, the only question that is required to be determined in these appeals are as to whether the claims have been rightly rejected by the Tribunal or not?

A perusal of the order passed by the Tribunal in all the three cases go to show that for rejecting the claims the only reason given is that negligence of the driver of auto rickshaw is not proved, the Tribunal has placed heavy reliance on the FIR lodged in the criminal case, the FIR is lodged by claimant Ramdayal Kahar and it is indicated in the FIR that the truck was coming from the opposite direction, it was being rashly driven and because of the headlight falling on the eyes of the driver namely-Mukesh Kumar Chourasiya, the auto rickshaw turned turtle. As there was no mention in the FIR with regard to the negligent driving by Mukesh Kumar Chourasiya, the statement made in the Tribunal is disbelieved. However, before the Tribunal various witnesses were examined and the statement of the witnesses available on record clearly go to show that each of the witness has stated that Mukesh Kumar Chourasiya-the driver and owner of the auto rickshaw, was driving it in high speed and even when the witnesses asked him to reduce the speed, he did not do it. It was indicated by them that he was responsible for the accident as he was driving the vehicle in a very high speed. Narayan PW-1, in Claim Case No. 18/2008, in paragraph 1 of his examination-in-chief, has stated that the auto rickshaw was being driven by Mukesh Kumar Chourasiya, he was driving it in high speed, he was asked to drive the vehicle slowly and it was about 2 in the night that the vehicle was being driven, and when he did not do so, he lost balance when light of the truck coming from the opposite side fell on his eyes. Similar statement is given by all the three appellants, who have been examined as witnesses in all the three cases.

That apart, PW-2 Santosh in Claim Case No. 18/2008, who was also a person travelling in the same auto rickshaw, has been examined; he is not a claimant and has not filed any claim case. He is an independent witnesses and he also speaks about the negligent way in which Mukesh Kumar Chourasiya was driving the auto rickshaw, the speed in which he was driving which resulted in the auto rickshaw turning turtle.

In Claim Case No. 64/2008, pertaining to claimant Ramdayal Kahar-who has been examined as PW-1, and the discrepancy in not mentioning about the negligence of the driver in the FIR is put to him. He has indicated that the FIR was written by a Police Officer and he was not aware as to what was exactly written in the FIR. The FIR does show that it was written by a Police Officer on the basis of the statement made by Ramdayal Kahar. However, before the Tribunal Ramdayal Kahar does say that Mukesh Kumar Chourasiya was driving the auto rickshaw negligently and he lost balance when the truck came from the opposite direction.

Similar is the position in the third case also, where evidence has been given by the claimant with regard to the driving of the auto rickshaw in speed by Mukesh Kumar Chourasiya.

It is, therefore, clear from a complete reading of the evidence that in the Tribunal, in the trial of the claim cases, all the witnesses-which included the appellants and one witness PW-2 Santosh in Claim Case No. 18/2008, have testified with regard to the negligent way in which Mukesh Kumar Chourasiya was driving the vehicle and in the cross-examination they have withstood the cross-examination and nothing contradictory is stated by them. Only because in the FIR lodged by Ramdayal Kahar-appellant in M.A. No. 4735/2008, there is no mention of Mukesh Kumar Chourasiya driving the vehicle in a negligent manner, the learned Tribunal has taken a view that negligence of respondent No. 1 Mukesh Kumar Chourasiya-driver of the auto rickshaw, is not proved. This approach adopted by the Tribunal was not correct. Evidence in a claim case u/s 166 of the Motor Vehicles Act is not to be kept at par with evidence recorded in a criminal case. It is to be seen that the FIR-Ex. P/1 was lodged by Ramdayal Kahar on the same day of the accident itself i.e. 12.4.2007, at about 7.00 AM, in the morning, all the injured persons were admitted and were undergoing treatment at that point of time. The FIR is recorded in statement form by a Police Official. That being so, Ramdayal Kahar may not have been in a perfect state of mind to give all the meticulous details at the time of writing of the FIR. The accident took place at night at about 2.00 am, all the persons including Ramdayal Kahar, sustained serious injuries in the accident, they were rushed to the Hospital and they were undergoing treatment when the FIR was lodged. All these circumstances read with the fact that no statement of the witnesses or person concerned were recorded by the police authorities u/s 161 Cr PC immediately thereafter and there is nothing to show or hold that the claimants were giving wrong statement deliberately in the Court, the learned Tribunal committed an error in rejecting their evidence which was recorded by the Tribunal by taking note of certain assertions made in the FIR by Ramdayal Kahar. The omission, if any, by Ramdayal Kahar to mention about negligence of Mukesh Kumar Chourasiya-the driver of the vehicle, cannot be deliberate, but could be a natural sequence due to the totality of the facts and circumstances, i.e. the time of the accident, the time when the FIR was registered, the injuries suffered and various other factors. A liberal attitude was to be taken and a conclusion arrived at. Once occurrence of the accident and the injuries sustained by the appellants were established and it is found that they were travelling in the auto rickshaw and the auto rickshaw had turned turtle, the benefit has to be given to be appellants, as the possibility of the auto rickshaw being driven in the night in speed cannot be ruled out, when particularly all the witnesses say that Mukesh Kumar Chourasiya was driving the auto rickshaw in high speed and when he was asked to reduce the speed, he categorically stated that he has to undertake a separate trip in the morning and, therefore, he has to reach his destination at an earlier time. Taking note of all these circumstances, I am of the considered view that in coming to the conclusion that the negligence of the driver of the auto rickshaw is not proved, the learned Tribunal has committed an error. The evidence and material available on record do show that Mukesh Kumar Chourasiya was driving the auto rickshaw in high speed and because of the same the accident had occurred. Under such circumstances, the liability of the respondents in paying compensation cannot be disputed. The accident has to be held as occurred due to the negligent manner in which the auto rickshaw was being driven by Mukesh Kumar Chourasiya. The auto rickshaw would not had turned turtle in the manner resulting in serious injuries caused to the appellants concerned until and unless it was not being driven in high speed.

Taking note of all these circumstances, I am of the considered view that it is a fit case where the accident could be held to be a result of the negligent manner in which the auto rickshaw was driven by respondent No. 1 and proper compensation granted.

Accordingly, all the three appeals are allowed. The amount of compensation determined in each case by the Tribunal be paid to the appellants alongwith interest at the rate of 6% per annum from the date of filing of the application in the Court till its realization. The liability for payment of compensation shall be joint i.e.. both respondent No. 1 and the Insurance Company. With the aforesaid, all the three appeals stand allowed and disposed of.