Madhya Pradesh High Court
Laxmi Gontiya And Anr. vs Nand Lal Tahalramani And Ors. on 8 August, 1997
Equivalent citations: 1999ACJ241
Author: Rajeev Gupta
Bench: Rajeev Gupta
JUDGMENT S.K. Dubey, J.
1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 against the award dated 3.1.1994 passed in M.V. Case No. 20 of 1989 by the IX Additional Motor Accidents Claims Tribunal, Jabalpur (for short 'the Tribunal').
2. Facts giving rise to this appeal are thus: The legal representatives of the deceased Ashok Gontiya who died in a motor accident on 1.6.1986 at 7.30 p.m. filed an application under Section 110-A of the Motor Vehicles Act, 1939 (for short 'the Act') to claim compensation of Rs. 2,26,400 against the respondent on the averments that on the ill-fated day Ashok Gontiya was going on his cycle with Vinod Gontiya sitting at the earner from Katni-Murwara towards Peerbaba on the National Highway No. 7, near Home Guards Camp; a mini bus Standard 20, of which registration number could not be noted, driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3 hit the cyclist as a result of which cyclist received injuries and died. A Dehati Nalish was recorded at Crime No. 130 of 1986 at the police station Tikuri on the information given by Vinod Gontiya at about 21.45 in the night. On Dehati Nalish a first information report was recorded and an offence under Sections 304A and 338 of the Indian Penal Code was registered at Crime No. 130 of 1986. During investigation, the police arrested the respondent No. 1 who then was released on bail. Vehicle No. MKJ 9202 (Standard 20) mini bus white colour was seized vide seizure memo dated 19.6.1986 from the custody of respondent No. 1, which then was given on supurdgi to respondent No. 2. After investigation, a charge sheet was filed under Section 304A of the Indian Penal Code against respondent No. 1 in the Court of Judicial Magistrate First Class, Katni. Learned Judicial Magistrate discharged the respondent No. 1 holding that prima facie from the statements of witnesses recorded during the investigation rash and negligent driving of the mini bus by the respondent No. 1 is not established.
3. The respondent Nos. 1 and 2 in their written statement filed before the Tribunal took the defence that at the time of the accident, respondent No. 1 was not driving the mini bus Standard 20, as he was sick. It was also stated that the vehicle did not go on the road on the relevant date and time. A plea that the Claims Tribunal at Jabalpur has no territorial jurisdiction as the accident occurred in Katni, was also raised. Respondent No. 3 in its written statement denied the liability. To establish negligence, appellants examined Kaluwa, AW 2, who stated that mini bus dashed the deceased from front side, when Ashok and Vinod were on their cycle on the left side of the road. Vinod Gontiya could not be examined as he died during the pendency of the case. The driver and owner of the mini bus did not appear in the witness- box. The respondents did not adduce any evidence in support of the defence set up in the written statement. The Tribunal after appreciation of evidence held that the identity of the mini bus involved in the accident was not established as the witnesses admitted that they could not notice the registration number of the mini bus which is also missing in the first information report. On the question of compensation, the Tribunal held that the deceased was earning about Rs. 25 per day out of which Rs. 7 were deducted on personal living expenses of the deceased; dependency was estimated at Rs. 18 per day; the amount was worked out (18 x 30 x 12 x 30) to Rs. 1,94,400, applying multiplier of 30 in the multiplicand of 6,480. In that Rs. 10,000 for loss of consortium, Rs. 10,000 for loss of company and deprivation of love and affection to children and Rs. 2,000 for funeral expenses were added; thus total compensation of Rs. 2,16,400 was determined; but as the identity of the vehicle was not established, the application for compensation was dismissed.
4. Mr. Ashok Lalwani, learned Counsel for the appellants submitted that from the evidence of Kaluwa, AW 2 and Khajanchi Prasad, AW 3, the identity of the vehicle was well established, who stated the colour of the vehicle, make Standard 20, owned by Sindhi residing in Sindhi Camp. In the first information report too, these particulars were given, except the number of the vehicle. After the report, the offence was investigated, respondent No. 1 was arrested and released on bail, vehicle was seized and given in supurdgi. Besides, the driver and owner did not appear in the witness-box to state that on the date and time of accident the vehicle was not on the road and the respondent No. 1 was not well. No enmity or false involvement of vehicle in the accident even is suggested. Therefore, relying on the decision of this Court in Bhanwarlal v. Kabulsingh 1989 ACJ 189 (MP) and Radheshyam v. Nasir Hussain 1991 ACJ 755 (MP), he submitted that the Tribunal illegally dismissed the claim application.
5. Mr. N.S. Ruprah, learned Counsel for respondent No. 3, submitted that the Tribunal has recorded a finding after appreciating the evidence on the identity of the vehicle. As the identity of the vehicle involved in the accident was not established, the Tribunal rightly dismissed the claim. The liability on the for feasor cannot be fastened unless the negligent driving by the use of the motor vehicle is established. The non-examination of owner and driver was immaterial, as the initial burden to establish the negligence has not been discharged. Learned counsel for respondent No. 3 further submitted that the determination of compensation is too excessive which is without jurisdiction, as the Tribunal in para 14 of the award, while deciding the issue No. 6, held that according to distribution memo the case ought to have been presented to and tried by the Additional Motor Accidents Claims Tribunal, Katni.
6. Before we deal with the appeal on merits it is necessary to deal with the question of jurisdiction of the Tribunal. The State Government in exercise of its powers under Section 110 (1), (2) & (4) of the Motor Vehicles Act, 1939 constituted the Claims Tribunals to deal with the cases, vide notification No. 6-a-86-VIII, dated 20.1.1986, published in the M.P. Rajpatra (Extraordinary at p. 130) dated 24.1.1986. The notification reads thus:
In exercise of the powers conferred by Sub-section (1), (2) and (4) of Section 110 of the Motor Vehicles Act, 1939 (IV of 1939) and in supersession of all notifications previously issued on the subject, the State Government hereby-
(a) constitutes-
(i) all the courts of District Judges as Motor Accidents Claims Tribunals; and
(ii) all the courts of the Additional Judges to the court of District Judges as Additional Motor Accidents Claims Tribunals, for the areas of their respective civil district;
(b) appoints-
(i) all the District Judges as the members of the Motor Accidents Claims Tribunals; and
(ii) all the Additional Judges to the courts of District Judges, as the members of the Additional Motor Accidents Claims Tribunals; and
(c) directs that-
(i) the Claims Tribunals and Additional Claims Tribunals shall adjudicate upon all claims arising out of their respective jurisdiction in the civil district in which they are posted as per distribution memo prepared by the District Judges of the respective districts under Section 15 of the Madhya Pradesh Civil Courts Act, 1958 (No, 19 of 1958), as approved by the High Court;
(ii) all pending cases by general or special order under Section 110 of the Motor Vehicles Act, 1939 (IV of 1939) shall stand transferred to the Motor Accidents Claims Tribunals or the Additional Motor Accidents Claims Tribunals within their jurisdiction in accordance with the distribution memo referred to above as in force on the date of issue of this notification and/or as it may be amended subsequently from time to time.
7. It would be appropriate here to extract Section 15 of the Madhya Pradesh Civil Courts Act, 1958 (No. 19 of 1958) which reads thus:
15. Power to distribute business.-(1) Notwithstanding any thing contained in the Code of Civil Procedure, 1908 (V of 1908) or the law relating to courts of small causes, for the time being in force in any area, or in any other provisions contained in this Act, the District Judge may, by order in writing direct that any civil business cognizable by his court or by other civil courts established under Section 5, in his civil district, shall be distributed amongst himself and Additional Judges, if any, of his court, as also amongst other courts under his control and amongst Additional Judges of such other courts, inter se, in such manner, as he deems fit;
Provided that, except insofar as it may affect the exclusive jurisdiction of a court of small causes or of a court invested with the jurisdiction of a court of small causes, a direction given under this section shall not empower any court to exercise powers or deal with business beyond the limits of its pecuniary and notified territorial jurisdiction.
(2) Any judicial act in any suit, appeal or proceedings, instituted in a court of competent jurisdiction, shall not be invalid only by reason of the fact that such institution was not in accordance with the order of distribution of business referred to in Sub-section (1).
(3) Whenever it appears to any court, as is referred to in Sub-section (2) that institution of any suit, appeal or proceedings, pending before it, was not in conformity with the order of distribution of business made under Sub-section (1), it shall submit the record of such suit, appeal or proceedings, as the case may be, to the District Judge for appropriate orders, and the District Judge in relation thereto may pass orders either transferring the concerned record to proper court as per order of distribution of business or otherwise to any other court of competent jurisdiction.
(4) In distribution of civil business under Sub-section (1) the District Judge shall be guided by such principles as the High Court may, by rules, prescribe.
8. The State Government constituted Claims Tribunal and appointed the District Judge, Jabalpur, as Member, Motor Accidents Claims Tribunal for the areas of Jabalpur civil district and all other Additional Judges to the court of District Judge, were appointed as the Members of the Additional Motor Accidents Claims Tribunals to adjudicate upon all claims arising out of their respective jurisdiction in the civil district in which they are posted, as per distribution memo prepared by the District Judge. Area of Katni, where the accident occurred, fell within the jurisdiction of civil district, Jabalpur. The application for compensation was presented before the Member, Motor Accidents Claims Tribunal, Jabalpur, where it remained pending till 30.6.1989. The Member, Motor Accidents Claims Tribunal, Jabalpur, in exercise of its powers under Section 15 of the Madhya Pradesh Civil Courts Act, 1958, transferred the case vide order dated 30.6.1989 to the court of IX Additional Motor Accidents Claims Tribunal, Jabalpur to adjudicate upon the claim case. Section 15 of the M.P. Civil Courts Act gives powers to the District Judge to distribute to decide the cases, amongst himself and Additional Judges, if any, of his court, as also amongst other courts under his control and amongst Additional Judges of such other courts, -inter se, in such manner, as he deems fit. Sub-section (2) of Section 15 of the said Act lays down that any judicial act in any suit, appeal or proceedings instituted in a court of competent jurisdiction, shall not be invalid only by reason of the fact that such institution was not in accordance with the order of distribution of business referred to in Sub-section (1) of Section 15. Sub-section (3) of Section 15 provides that whenever it appears to any court, as is referred to in Sub-section (2) that institution of any suit, appeal or proceedings, pending before it, was not in conformity with the order of distribution of business made under Sub-section (1), it shall submit the record of such suit, appeal or proceedings, as the case may be, to the District Judge for appropriate orders, and the District Judge in relation thereto may pass orders either transferring the concerned record to proper court as per order of distribution of business or otherwise to any other court of competent jurisdiction. Therefore, if the Tribunal was of the opinion that it had no jurisdiction to try the case in accordance with the distribution memo it ought to have referred the case to the Member, Motor Accidents Claims Tribunal, that is, the District Judge, Jabalpur. It seems that course was not adopted. From the proceedings dated 7.1.1992, it appears that on the reference made by the Tribunal, the Member, Motor Accidents Claims Tribunal, Jabalpur, ordered that the matter be retained and be adjudicated upon in accordance with law. In such circumstances, when the case was assigned to the Tribunal, the Tribunal was not correct in saying that it had no jurisdiction. In any case, it is not a case where there was inherent lack of jurisdiction, but, according to the distribution memo, it ought to have been transferred to the Member, Additional Motor Accidents Claims Tribunal, Katni. However this would not make the award passed by the Tribunal invalid in view of Sub-section (2) of Section 15 of the Madhya Pradesh Civil Courts Act, 1958, as the Tribunal did not refer the case to the Member, Motor Accidents Claims Tribunal for transferring the case to the Member, Additional Motor Accidents Claims Tribunal, Katni. Therefore, we are of the view that as the case was assigned by the Member, Motor Accidents Claims Tribunal, Jabalpur to the Tribunal for adjudication of the claim, the award passed by the Tribunal on merits would not become invalid in any manner.
9. Now coming to the question of negligent driving of the vehicle involved in the accident, we have carefully examined the evidence and the material on record. The appellants examined Kaluwa, AW 2, an eyewitness to occurrence and the witness Khajanchi Prasad, AW 3, who reached immediately after the accident. Kaluwa, AW 2, stated that the vehicle was Standard 20 mini bus which hit the cyclist Ashok. The vehicle belonged to a Sindhi residing in Sindhi Camp. AW 3 though also stated that he saw how the accident occurred but during the cross-examination, he had admitted that he reached after the accident. He stated that the accident was caused by Standard 20 Matador type vehicle, white in colour which used to come from the Sindhi Camp. He also knows the driver who is the son of one Sindhi, the owner of the bus. In cross-examination, he stated that he could not note the number of the vehicle. Besides the evidence of AW 2 and AW 3, the appellants filed certified copies of Dehati Nalish first information report, spot map, seizure memo, supurdgi nama, report of technical examination of the vehicle and post-mortem report filed in criminal court. Merely because the registration number, if not mentioned in the first information report, testimony of the witnesses cannot be discarded as it is well settled that the first information report is not a substantive piece of evidence. It is not an encyclopaedia. The object of first information report from the point of view of the informant is to set the criminal law in motion. From the point of view of investigating authorities, it is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. [See Nasib v. State of Bihar AIR 1972 SC 283]. In Kusum Kali v. Bhailal Tiwari M.A. No. 465 of 1995; decided on 4.11.1996, where the registration number was not mentioned in the first information report, this Court has observed that mere non-mention of number in the first information report would not be fatal, if otherwise it is established that the vehicle was involved in the accident.
10. In motor accident cases where the litigant persons are illiterate, if the Tribunal finds that the evidence led is not sufficient to establish the involvement of the vehicle which caused the accident, in our opinion, it would be proper for the Tribunal giving a helping hand by directing the party to lead evidence in accordance with the requirement of law, as it is well settled that a court or Tribunal is not to act as an umpire watching a battle of wits between the parties from a distance through telescope. The court is charged with the responsibility of guiding the procedure and apprising the parties whenever necessary of their duties. As legal procedure is full of traps; if a litigant happens to stumble, the courts should discharge its responsibility except when this is the result of an attempt to be clever and over-reach the court or to do some thing inequitable to the other side. In the latter event the party concerned should be dealt with severely. [See Puny Kalu v. Shanker Kalu AIR 1961 MP 348 and Shantilal Badrichand Mahajan v. Champalal Radhabai 1962 MPLJ 596, followed in Kusum Kali's case, M.A. No. 465 of 1995; decided on 4.11.1996].
11. True, the accused was discharged but not on the ground that the identity of the vehicle involved in the accident is not established, but on the ground that from the statements of the witnesses recorded during the investigation, under Section 161 of the Code of Criminal Procedure, prima facie, rash or negligent act is not established. Even this order of discharge has no effect. It is well settled proposition of law that the evidence recorded in criminal case and finding recorded thereon should not be used in claim cases. For the purpose of claim case, it is inadmissible. [See Dhanwanti v. Phoolwati 1994 MPLJ 674].
12. In the present case, besides the evidence of AW 2 and AW 3, certified copies of charge-sheet, first information report, seizure of the vehicle and other documents, the glaring fact in the written statement filed by the respondent Nos. 1 and 2 of admission of ownership of vehicle Standard 20. Photostat copy of the registration is also on record which shows-makers name-Standard 20 and other particulars of the vehicle and owner's name as respondent No. 2. There is another important feature, that the respondents have not put their case in the cross-examination that there are other vehicles of the type and the model in the Sindhi Camp or even in Katni town. There is no cross-examination that the witnesses had any enmity or for any ulterior reason, they have falsely implicated the owner and driver of the Standard 20 mini bus.
13. Main contest of the respondent Nos. 1 and 2 before the Tribunal was that their vehicle was not involved, nor it went towards the site of accident. The respondent No. 1 was not driving the vehicle as he was not well. Thus the plea of alibi was raised. It is well settled that when a plea of alibi is raised, the burden lies on the person who raises such plea. Therefore, it was essential on the part of respondent No. 1 to appear in the witness-box to state that he was sick and was not driving the vehicle. So also for the respondent No. 2 to lead evidence that on the relevant date the vehicle was not on the road or on the site where the accident is said to have occurred; hence an adverse inference under Section 114(g) of the Evidence Act has to be raised against the respondent Nos. 1 and 2. Therefore, on overall evidence and the circumstances of the case, as accident having been established, we hold that it was Standard 20, driven by respondent No. 1 and owned by respondent No. 2, which caused the accident.
14. The manner and circumstances in which the accident occurred have come on record. AW 2 by his evidence has established that the accident was caused due to negligence of the driver of the motor vehicle. The respondent No. 1 did not appear in the witness-box who was the best person having first hand knowledge about the circumstances, in which the accident occurred. Therefore, by raising adverse inference, we hold that the accident was caused due to negligent driving of the motor vehicle involved in the accident. Besides, the doctrine of res ipsa loquitur can also be applied to avoid hardship, as the circumstance speaks for itself and the accident tells its own story. [See Pushpa-bai Purshottam Udeshi v. Ranjit Ginning and Pressing Company 1977 ACJ 343 (SC)].
15. It takes us to the question of compensation. The deceased was a labourer, who was earning Rs. 25 per day. Even if his earning is taken as that of an unskilled labourer at Rs. 700 per month; from this one-third is deducted on the personal living expenses of the deceased; the dependency would come to Rs. 500 per month; yearly Rs. 6,000. In the multiplicand of 6,000 appropriate multiplier of 16, looking to the age of the deceased, the widow and minor child, is applied, the amount would work out to Rs. 96,000. In this Rs. 6,000 towards consortium, Rs. 6,000 for loss to estate and Rs. 2,000 for funeral expenses are added, thus the total would come to Rs. 1,10,000 which the appellants would be entitled to as compensation along with interest thereon at the rate of 12 per cent per annum from the date of application till realisation.
16. Learned counsel for respondent No. 3 submitted that as per the photostat copy of the insurance policy which is on record, the vehicle was insured with respondent No. 3, who as an insurer will have to pay the compensation; but looking to the delay caused in disposal of the claim case, the respondent No. 3 be not burdened with interest for such long period as the delay is not attributable to the respondents. We would have considered the prayer but the respondents took a totally false plea so as to deprive the helpless poor claimants of their just compensation. Therefore, we direct the respondent No. 3 to deposit the amount with accrued interest within a period of two months from the date of supply of certified copy failing which the interest shall be payable at the rate of 15 per cent per annum.
17. In the result, the appeal is allowed with costs, which are quantified at Rs. 3,000. Award of the Tribunal shall stand substituted as indicated hereinabove. Appeal allowed.