Nisha Patel and Others vs Syed Mustaq and Others

Sanjay Yadav, J.—With the consent of learned Counsel for the parties the matter is heard finally.

Challenge put-forth in the present appeal filed u/s 173 of the Motor Vehicles Act, 1988 is to an award dated 4.12.2005 passed by XI Additional Motor Accident Claims Tribunal, Jabalpur in M.V.C No. 48/2005 whereby the claim petition preferred by the Appellants claimants u/s 176 has been dismissed.

Brief facts leading to filing of claim petition are that, on 5.11.2002 Ramesh Patel, the deceased, Appellant No. 1''s husband while was coming back to his house on scooter bearing registration No. MP 20 KD 9217 met with an accident near Shashtri Bridge. The accident was caused by a vehicle bearing registration No. MP 20-F/2002. FIR (Ex. P-1) was lodged on 5.11.2002 at 13.30 against the driver of MP 20-F/2002, reported to be a Santro Car, by one Hareram Chourasia. The legal representatives of Ramesh Patel preferred the claim petition for compensation of Rs. 9,30,000/-. The Claims Tribunal after considering the entire material on record rejected the Claim Petition on the ground that the claimants have failed to prove that the accident was caused by Maruti Car bearing registration No. MP 20F/2002. It held that the FIR was in respect of Santro Car bearing registration No. MP 20F/2002; whereas it was the Maruti Car which was registered vide aforesaid registration No. The Trial Court thus, disbelieving the plea put-forth by the legal representatives of the deceased, rejected the claim petition.

Criticizing the aforesaid verdict it is urged by learned Counsel for the Appellant that the trial court grossly erred in rejecting the claim petition on mere technicalities. It is contended that there were two eye witnesses who were examined in the claim case, whereupon, they have categorically deposed that it was the Maruti Car bearing registration No. MP 20F/2002 which caused accident; consequent whereof Ramesh Patel sustained injuries and later on succumbed to the same. It is contended that mere mention of a Santro Car in the FIR lodged by one passerby, who witnessed the accident, is not a sufficient ground to reject the claim petition when there was a specific mention of registration number in the FIR. It is contended that the trial court ought not to have rejected the claim, instead it should have allowed the same. It is further submitted that, the trial court also erred in holding the deceased Ramesh Patel was a non-earning member. It is submitted that the deceased was employed as Cook in a restaurant and was earning approximately Rs. 5,000/- per month. It is contended that the Tribunal committed an error by holding that the said Ramesh Patel was a non-earning member. It is accordingly urged that the award passed by Claims Tribunal is liable to be set aside and the suitable compensation be awarded in lieu of death of Ramesh Patel.

The Respondents on their turn have opposed the relief sought for by the Appellant. Learned Counsel appearing for Respondent No. 1 supports the finding arrived at by the Tribunal that there being contradiction in the evidence led by the Appellant and the story narrated in the FIR, the Claims Tribunal was justified in rejecting the claim petition on the ground that the claimant had failed to prove that the death of Ramesh Patel was caused in an accident during course of use of motor vehicle, i.e., Maruti Car bearing registration No. MP 20F/2002. To bring home his submission, the learned Counsel has placed reliance on the FIR (Ex. P-1) and reply filed on behalf of Respondent No. 1, the owner in the trial court.

Admittedly, Respondent No. 1 did not enter into witness box to prove the contentions put-forth by him in written statement. The learned Counsel for Respondent No. 1 placing reliance on contentions put-forth in the written statement filed before the claims tribunal further submits that, in case if the claimants are held entitled for compensation then the same has to be born by the Insurance Co. as the vehicle, i.e., Maruti Car bearing registration No. MP 20F/2002 was insured with New India Assurance Co. Branch, Rewa for the period 30.10.2002 to 29.10.2003 vide policy No. 450402/31/02/02537.

Respondent No. 3 while supporting the award has to submit that, the vehicle in question was not insured with it and, therefore, the Insurance company cannot be held liable for the compensation. It is further contended deceased was on scooter and had collided with an oncoming car and thus was equally responsible for the said accident and for that no liability can be fastened on the Insurance Company.

Regarding death of Ramesh Patel and the factum of insurance of Maruti Car M.P. 20F 2002 the Claims Tribunal has returned a finding that, death of Ramesh Patel was due to accident caused by motor vehicle during course of its operation and he died due to the injuries sustained by him by the said accident. In respect of insurance the Claims Tribunal in paragraph 13 of its award has recorded a finding that Maruti car bearing registration No. 20F 2002 was duly insured for the period between 30.10.2002 to 29.10.2003. The Tribunal has further found that the Insurance Company has failed to prove that there was a breach of policy. These, findings being not questioned by either of the party, viz., the owner and the Insurance Company, are not interfered with.

Next and the vital question for adjudication is as to whether the Trial Court faltered in rejecting the claim on the ground that the claimants have failed to prove that the accident was caused by Maruti Car bearing registration No. M.P. 20F 2002 and whether the Tribunal was justified in holding that Ramesh Patel was a non-earning member.

Coming to the first question the Claims Tribunal primarily relied upon FIR (Ex. P-1) and the pleadings in written statement filed by Respondent No. 1, the owner of Maruti Car. Admittedly, the FIR was lodged by one Hareram Chourasia, a passerby who having distinctly noted the registration number of the offending vehicle lodged a complaint against the driver of the said vehicle, though the vehicle was depicted as Santro Car. However, when the statement of eye-witness, viz., Shiv Kumar Sen (A.W. 2) and Prakash Patel (A.W. 3) is minutely scanned and corroborated with the fact as they appear in the FIR it leaves no iota of doubt that Maruti Car bearing registration No. MP 20F 2002 whereby the accident was caused on 5.11.2002. The Claims Tribunal though placed reliance on the pleadings in the written statement but the fact is that Respondent No. 1, the owner of Maruti Vehicle MP 20F 2002 did not enter into witness box to substantiate the stand taken by him in the written statement nor any witness has been examined to prove that the Maruti M.P. 20F 2002 on 5.11.2002 at 3 p.m. was being plied at Rewa and not at Jabalpur. The eye witnesses, viz., A.W. 1 and A.W. 2 have categorically stated that they have witnesses the accident and also noted the car and its registration number. There thus being a direct evidence on record, the Claims Tribunal definitely fell into error by placing reliance on the FIR and pleadings in the written statement of Respondent No. 1, owner of Maruti Car MP 20F 2002. The said finding by the Claims Tribunal being contrary to the evidence on record is hereby set aside. It is held that it was Maruti Car bearing registration No. M.P. 20F 2002 whereby an accident was caused on 5.11.2002 resulting into death of Ramesh Patel.

Now coming to the aspect of loss of dependency, the widow of the deceased has categorically stated that the deceased was employed as cook in a restaurant and was earning Rs. 5000/- per month. True it is that no documents are brought on record to substantiate the submission. However, keeping in view that the deceased was about 35 years of age and was maintaining a family he definitely would have been an earning member and not a non-earning member as has been held by the Claims Tribunal. Since there is no documentary evidence on record the approximate wages which the deceased must be getting around Rs. 120/- per day and if he was getting work for 25 days the monthly income which he was getting must be around Rs. 3000/- the deceased must have been spending on himself l/3rd of the said income and was spending 2/3rd on his family, i.e., Rs. 2000/- per month. The annual dependency thus comes to Rs. 24000/-. Since the deceased was 35 years of age by applying multiplier of 16 as applicable for the age group of 35 to 40. The total dependency comes to Rs. 3,84,000/-; by adding Rs. 16,000/- towards conventional head such as funeral expenses, loss of consortium; the total compensation comes to Rs. 4,00,000/-.

At one stage it was suggested by learned Counsel for the parties to remit the matter for adjudication by the Claims Tribunal. However, since the entire evidence is on record and the accident is of the year 2002, in the interest of justice the matter is finally decided instead of remitting the same for adjudication before the Claims Tribunal.

In view of above the appeal is allowed. The Appellants claimants shall be entitled for compensation of Rs. 4,00.000/- and the interest @ 6 % per annum from the date of appeal; of which Rs. 1,50,000/- + Rs. 1,50,000/- be put in fixed deposit in the name of Appellants No. 2 and 3 for a period of five years in a Nationalized Bank and out of Rs. 1,00,000/-, Rs. 50,000/- may be deposited in a fixed deposit with Nationalized Bank and remaining 50,000/- be paid to Appellant No. 1. The Appellants would be entitled to draw the interest. The liability for compensation should be jointly and severally borne by Respondent Nos. 1 and 2. The appeal is allowed to the extent above.

The appeal is allowed to the extent above. However, no costs.

C.c. as per rules.