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Judgment
Lok Pal Singh, J
This appeal from order is directed against the judgment and award dated 18.4.1994 passed by Additional District Judge, M.A.C.T. Dehradun in M.A.C. case no.243 of 1991, whereby the claim petition filed by the appellants has been dismissed.
This appeal was instituted in the High Court of Judicature at Allahabad on 09.08.1994. On 10.8.1994, appeal was admitted and lower court record was summoned. After creation of State of Uttarakhand, this appeal transferred to this Court. Thereafter, appeal got dismissed for want of prosecution. Lower court record was returned to the Tribunal concerned. Notices were not served upon the appellant after the appeal was transferred to this Court. When they came to know about the same, they moved restoration application which was allowed by the Court and the appeal got restored to its original number after a long time. But unfortunately by that time LCR was weeded out. This Court permitted the learned counsel for the parties to reconstruct the record as available with them vide order dated 5.8.2019. Pursuant to such order, record of the case has been reconstructed by the learned counsel for the appellants. Respondents have not denied the veracity of the record of the case reconstructed by the appellant.
Facts, in brief, are that on 24.03.1991 Sardar Amarjeet Singh was going to attend a marriage in Doiwala by car bearing registration no.HPN 0222. At about 1:30 pm, Sardar Amarjeet Singh stopped the car to ease out himself. As soon as he stepped down the car, a car make Ambassador bearing registration no. UP07-0028 which was being driven rashly and negligently, hit the deceased due to which the deceased fell down on the road. He received grievous injuries on head, chest and legs. He was taken to the Doon Hospital. Looking to the serious condition, he was referred to R.M.L. Hospital, Delhi. Sardar Amarjeet Singh succumbed to the injuries on 28.03.1991. With these averments, the claimants i.e. the wife and children filed the claim petition before the Tribunal stating that the deceased was the sole earning member of the family; he was having a truck and a tractor; and was also engaged in business of diary farming, and from all these sources he used to earn Rs.8,000/- per month. The claimants claimed a sum of Rs.11,52,000/- for maintenance, Rs.10,000/- towards medical expenses and Rs.5,000/- towards mental pain and agony, in total Rs.11,67,000/-. In regard to the accident, an F.I.R. was lodged by Malkiyat Singh at P.S. Rajpur, Dehradun against the driver of Ambassador Car UP07-0028.
Respondent nos.2 and 3 i.e. the driver and owner of the vehicle filed joint written statement and denied most of the averments of the claim petition. They also denied the factum of accident. However, they stated that the vehicle was insured with The New India Assurance Company Ltd.
Respondent no.4-State Bank of Patiyala filed its written statement and denied most of the averments of the claim petition on account of lack of information. However, it admitted the fact that the vehicle in question was financed by its Bank. It also stated that if the Tribunal arrives to the conclusion that the claimants are entitled to receive the compensation, the same would be payable by respondent no.5 the New India Assurance Company Ltd. as the vehicle in question was insured with that Company.
Respondent no.5 The New India Assurance Co. Ltd. also filed its written statement and denied the averments made in claim petition.
On the pleadings of parties, Tribunal framed the following issues:-
i) Whether on 24.03.1991 at about 09:30 AM, accident took place because of vehicle no.UP07 0028? If so, its effect?
ii) Whether the claim petition is bad for non-joinder of necessary parties? If yes, its effect.
iii) Whether the accident occurred due to truck, as contended in para-27 of the written statement? If yes, its effect.
iv) To what compensation the claimants are entitled to receive?
In documentary evidence, the claimants filed copy of the F.I.R., certificate and medical bills of the deceased, income tax certificate, loan certificate, post-mortem report. Claimants got examined PW1 Malkeet Singh, PW2 Sardar Mahendra Singh, PW3 Smt. Surendra Kaur. Opposite party-respondent in documentary evidence filed insurance policy of offending vehicle and the driving license of Dinesh Kumar.
Learned M.A.C.T., Dehradun on consideration of the materials available on record dismissed the claim petition vide judgment dated 18. 04.1994 holding that it was the burden upon the claimants to prove the fact that the alleged accident has occurred by Ambassador Car No.UP07-0028 through the eyewitnesses PW1 and PW2 but PW1 and PW2 who are the eyewitness of the accident have stated that the accident had taken place by an Ambassador Car and that they have nowhere specifically stated that the accident took place by Ambassador Car bearing registration No.UP07-0028.
PW1 Malkeet Singh who lodged the F.I.R. was examined before the Tribunal. He categorically deposed that on 24.03.1991 he was going to attend a marriage in Doiwala. He was going by Maruti Van no.HP 0222. Deceased Amarjeet Singh, Mahendra Singh and Jaswant Singh were also accompanying him. When they reached at Jogiwala near Rispana Bridge, then the deceased asked him to stop the car. He came down to ease out himself. All of a sudden, an ambassador car which was being driven at a speed of 90-100 km/hour hit the deceased from the back side, due to which the deceased fell down. He sustained injuries. He was taken to Doon Hospital. Driver of Ambassador car also accompanied them to hospital. He further stated that the accident took place due to rash and negligent driving of Ambassador Car. He denied to the suggestion that the accident has not taken place by Ambassador Car.
PW2 Mahendra Singh, in his statement, has also supported the contents of claim petition. Besides the factum of accident, he has stated that the deceased was having a truck from where he used to earn Rs.4,000/- per month. He was also running the business of dairy farming.
This witness denied to the suggestion that the deceased was crossing the road to take meat. He also denied to the suggestion that accident has not taken place by Ambassador car.
Having heard learned counsel for the parties and on perusal of entire material available on record, it emerges out that the Tribunal has rejected the claim petition on the sole ground that the claimants could not prove that the accident took place by ambassador car no.No.UP07-0028. While doing so, learned Tribunal lost sight of the fact that a prompt F.I.R. was lodged by PW1 Malkeet Singh with regard to the accident wherein PW1 Malkeet Singh specifically mentioned the registration number of ambassador car.
It is not disputed that there was an accident. Only because the registration number of the offending vehicle was not specifically stated by the eye-witnesses in their statements that by itself do not disentitle the claimants to the claim benefit and on that basis court cannot come to a conclusion that the accident was not caused by Ambassador Car No UP07-0028. Furthermore, neither the owner and driver nor the insurance company took a plea in their written statement that the accident took place when the deceased was crossing the road in order to purchase meat. Respondent also did not adduce any oral or documentary evidence so as to show that the deceased was at contributory negligence. A perusal of record would show that the Tribunal has not considered the evidence available on record in proper perspective rather on a hyper-technical ground has decided issue no.1 against the claimants.
Motor Vehicles Act is a benevolent legislation and has been enacted with intent to object to facilitate the claimants/victims to get redress for the loss of loosing of family member or for injuries at an early date. In such type of matters, Courts or Tribunal should not adopt pedantic approach so as to shut the doors of justice to the claimants. While dealing with a claim application, it is necessary to bear in mind that the strict proof of an accident cause by a particular vehicle in a particular manner may not be possible to be done by the claimants. Claimants are merely to establish their case on the touchstone of preponderance of probability and the standard of proof beyond reasonable doubt cannot apply.
Hon'ble Apex Court in Mangla Ram v. Oriental Insurance Company Ltd., (2018) 5 SCC 656 has enunciated the principle that the evidence of the claimants ought to be examined by the Tribunal on a touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied. Relevant paragraphs of the judgment are reproduced herein below:
"22. The question is: Whether the approach of the High Court can be sustained in law? While dealing with a similar situation, this Court in Bimla Devi v. Himachal RTC (2009) 13 SCC 530 noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the person standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. In paras 11-15, the Court observed thus: (SCC pp. 533-34)
"11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto senso is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor cycle, the same would be ignored only on the basis of a post-mortem report vis-à-vis the averments made in a claim petition.
The deceased was a constable. Death took place near a police station. The post-mortem report clearly suggest that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of the constable had taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus-stand and near a police station. In such an event, the Court can presume that the police officers themselves should have taken possession of the dead body.
The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate Respondents 2 and 3. The claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the first information report had been lodged in relation to an accident could not have been ignored.
Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.
In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside.
In Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646, this Court examined similar situation where the evidence of claimant's eye-witness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi v. Himachal RTC, (2009) 13 SCC 530. In paras 8 & 9, of the reported decision, the dictum in United India Insurance Co. Ltd. v. Shila Datta (2011) 10 SCC 509, has been adverted to as under:
"8. In United India Insurance Co. Ltd. v. Shila Datta (2011) 10 SCC 509, while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10)
'10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.
(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. ...
(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.'
The following further observation available in para 10 of the Report would require specific note: (Shila Datta (2011) 10 SCC 509, SCC p. 519)
'10. ... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.'"
In para 10 of Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646, the Court opined that non-examination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability."
Hon'ble Apex Court in the case of Vimla Devi and others v. National Insurance Company Ltd. & Ors. (2019) 2 SCC 186 has observed as under:-
"15. At the outset, we may reiterate as has been consistently said by this Court in a series of cases that the Act is a beneficial piece of legislation enacted to give solace to the victims of the motor accident who suffer bodily injury or die untimely. The Act is designed in a manner, which relieves the victims from ensuring strict compliance provided in law, which are otherwise applicable to the suits and other proceedings while prosecuting the claim petition filed under the Act for claiming compensation for the loss sustained by them in the accident.
....
Keeping in view the aforementioned principle of law when we examine the facts of the case at hand, we are of the considered opinion that the Claims Tribunal and the High Court were not justified in dismissing the appellants' claim petition. In our view, the appellants' claim petition ought to have been allowed for awarding reasonable compensation to the appellants in accordance with law. This we say for the following reasons.
20.1. Firstly, the appellants had adduced sufficient evidence to prove the accident and the rash and negligent driving of the driver of the offending vehicle, which resulted in death of Rajendra Prasad.
20.2. Secondly, the appellants filed material documents to prove the factum of the accident and the persons involved therein.
20.3. Thirdly, the documents clearly established the identity of the Truck involved in the accident, the identity of the driver driving the truck, the identity of the owner of the Truck, the name of the insurer of the offending Truck, the period of coverage of insurance of the Truck, the details of the lodging of 13 FIR in the concerned police station in relation to the accident.
20.4. In our view, what more documents could be filed than the documents filed by the appellants to prove the factum of the accident and the persons involved therein.
20.5 Fourthly, so far as the driver and owner of the Truck were concerned, both remained ex parte since inception and, therefore, neither contested the appellants' claim petition nor entered into the witness box to rebut the allegations of the appellants made in the claim petition and the evidence. An adverse inference against both could be drawn.
20.6. Fifthly, so far as the Insurance Company is concerned, they also did not examine any witness to rebut the appellants' evidence. The Insurance Company could have adduced evidence by 14 examining the driver of the offending Truck as their witness but it was not done.
20.7. Sixthly, on the other hand, the appellants examined three witnesses and thereby discharged their initial burden to prove the case.
20.8. Seventhly, if the Court did not exhibit the documents despite the appellants referring them at the time of recording evidence then in such event, the appellants cannot be denied of their right to claim the compensation on such ground. In our opinion, it was nothing but a procedural lapse, which could not be made basis to reject the claim petition. It was more so when the appellants adduced oral and documentary evidence to prove their case and the respondents did nothing to counter them.
In the light of the aforementioned seven reasons, we are of the considered opinion that the appellants were able to prove the factum of the accident so also the factum of rash and negligent act of the driver causing the accident. It is also proved that the offending Truck was insured with respondent No. 1 at the time of accident and was owned by respondent No. 3."
In view of the principle of law laid down by the Hon'ble Apex Court, I am of the considered view that the Tribunal should not have gone into the technicalities of the law to hold that the claimants have failed to prove the fact that the accident occurred by Ambassador Car No. UP07-0028 through the evidence of eye-witnesses PW1 and PW2, and that the claimants are not entitled to compensation which is an outcome of non-application of mind. Thus, it is held that the claimants were able to prove the factum of the accident so also the factum of rash and negligent act of the driver causing the accident. It is also proved that the offending vehicle was insured with respondent no.5 at the time of accident. The owner of the offending vehicle has pleaded that the driver of the vehicle was having valid driving license and the vehicle was insured with the respondent no.5 The New India Assurance Co. Ltd. This fact has not been denied by the Insurance Company. Thus the respondent no.5 is held liable to pay compensation to the claimants.
Now this Court has to consider as to what would be the just and proper compensation in the present case. In the claim petition, the claimants have stated that the deceased was having a truck and was also doing business of dairy farming and from all these sources, he was earning Rs.8,000/- per month. In this regard, PW2 Mahinder Singh has also stated that the deceased was having a truck, from where he was earning Rs.4,000/- per month. Besides this, he was also doing business of dairy farming. Though it is stated by the claimants that the deceased was earning Rs.8,000/- per month but the same is not proved by any reliable evidence. In the case at hand, accident took place on 24.03.1991, thus, this Court considers it appropriate to take notional income of Rs.15,000/- as per The Second Schedule of Motor Vehicles Act. The deceased was survived by his wife and two children. Thus, deduction of 1/3rd would be made. On the date of accident, the appellant was aged about 38 years. Thus, the multiplier of '15' would be applicable in view of Sarla Varma & Others vs. Delhi Transport Corporation & Another (2009) 6 SCC 121. Further, in view of National Insurance Company Ltd. v. Pranay Sethi AIR 2017 SC 5157, as the deceased was self-employed and was below the age of 40 years, an addition of 40% on the income of the deceased would be justifiable. So far as the loss of estate, loss of consortium and funeral expenses are concerned, Hon'ble Apex Court again in Pranay Sethi3 has granted Rs.15,000/- each under the head of loss of estate and funeral expenses and Rs.40,000/- towards loss of consortium. Thus, the claimants are entitled to receive these figures also. Besides, it has come on record that the deceased was taken to Doon Hospital from where he was referred to a hospital at Delhi. Thus, this Court finds it appropriate to award Rs.10,000/- towards medical expenses. In this way, the compensation would be computed as follows:-
S. No.
Heads
Calculation (Amount in Rs.)
1.
Notional Income
15,000/- per annum
2.
40% addition towards future prospects (15,000 + 6,000)
21,000
3.
After 1/3rd deduction
14,000
4.
Multiplier of '15'
2,10,000
5.
Funeral Expenses
15,000
6.
Loss of Estate
15,000
7.
Loss of Consortium
40,000
8.
Medical expenses
10,000
Total
2,90,000
At this stage, learned counsel for respondent no.5 submits that the present appeal remained dismissed in default for a considerable long period. As such, there should not be any order for payment of interest on the amount of compensation.
It is true that the appeal remained dismissed for a considerable period but this Court cannot lose sight of the fact that this appeal was originally filed before the Allahabad High Court and it is after creation of State of Uttarkhand that this appeal was transferred to this Court. After transfer to this Court, notices were not issued to the parties. In such circumstances, the appellants cannot be held responsible for their non-appearance. More so, this Court, after hearing the counsel for the appellant and considering the fact that the cause shown is sufficient for non-appearance, allowed the restoration application and restored the appeal to its original. Thus, the period of dismissal of appeal will not be counted against the appellant and the same would be treated as continuation of appeal.
In view of the above, the claim petition is partly allowed. The claimants are held entitled to get compensation @ 2,90,000/- from the respondent no.5 The New India Assurance Company Ltd. The amount of compensation shall carry interest @ 7% per annum from the date of filing the claim petition till the date of realization. The amount of compensation shall be distributed equally amongst the claimants/appellants.
Appeal from order stands allowed, as above. No order as to costs.