Punjab-Haryana High Court
Harmesh Lal vs Gurmeet Kaur And Ors on 3 November, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
FAO No. 5915 of 2011 -1-
In the High Court of Punjab and Haryana at Chandigarh
FAO No. 5915 of 2011(O&M)
Date of Decision: 3.11.2014
Harmesh Lal
---Appellant
Versus
Gurmeet Kaur and others
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
***
Present:- Mr. Dinesh Trehan, Advocate
for the appellant
Mr. Sarju Puri, Advocate
for respondent No. 1
Mr. A.S.Kakkar, Advocate
for respondents no. 2 and 3
***
1. Whether Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the
Digest?
REKHA MITTAL, J.
The present appeal has been directed against the award dated 17.5.2011 passed by the Motor Accident Claims Tribunal, Shaheed Bhagat Singh Nagar (in short "the Tribunal") whereby compensation has FAO No. 5915 of 2011 -2- been awarded in favour of Gurmit Kaur, respondent No. 1 in regard to death of her son namely Balbir Singh son of Sat Pal in a motor vehicular accident on 19.4.2009.
The facts relevant for disposal of the present appeal are that Gurmit Kaur preferred claim for compensation on the premise that the deceased alongwith Harmesh Lal went to the fields of Mohan Singh for loading and unloading animal feed (Turi). While they were coming to Barnala Kalan, respondent No. 1 was driving tractor bearing No. PB-04-B- 1605 and the deceased was sitting besides the driver, along with his father, at Mudguard of the tractor. When they reached near the drain bridge of village Barnala Kalan, due to rash and negligent driving of respondent No. 1, the deceased fell down from the tractor and rear tyre of the tractor ran over him and he died on his way to PGI Chandigarh. DDR No. 29 dated 19.4.2009 was registered in Police Station, City Shaheed Bhagat Singh Nagar.
The deceased is stated to be 23 years old, doing agriculture labour and also running dairy farming and earning Rs. 10,000/- per month.
Harmesh Lal, appellant-respondent filed the reply and, in turn, raised objection that the petitioner is estopped by her act and conduct from filing the petition. Satpal, father of the deceased got recorded in the proceedings under Section 174 of the Code of Criminal Procedure that Balbir Singh was voluntarily riding the mudguard of the tractor and had fallen from the tractor by himself and got crushed under the tyres of the tractor despite best efforts of the driver to apply brakes to save life of Balbir Singh. Balbir Singh was working for Mohan Singh of village Barnala FAO No. 5915 of 2011 -3- Kalan and Satpal and his family were paid Rs. 1,00,000/- as ex gratia compensation by the Market Committee, Nawanshahr. The deceased climbed mudguard of the tractor and sat there inspite of objection of the driver. He has denied that he is the registered owner of the tractor in question.
Respondents No. 3 and 4, registered owners of the vehicle at the time of occurrence filed their reply, challenged maintainability of the petition against them with the averments that they had sold the tractor in question to respondent No. 1 in the year 2003 and after its sale, they have nothing to do with the vehicle in question nor any liability can be fastened upon them.
The controversy between the parties led to framing of following issues by the learned Tribunal:-
1. Whether the death of Balbir Singh was caused by respondent No. 1 on 19.4.2009 at 8-00 a.m. in the area of drain bridge of village Barnala Kalan, Tehsil Nawanshahr while driving his vehicle no. PB-05/B-1605 in rash and negligent manner?
OPP
2. Whether the claimant is the only legal representative of deceased Balbir Sing? OPP
3. Whether respondents no. 3 and 4 have sold the offending vehicle to respondent No. 1 on 6.9.2003. If so, its effect? OPR 3 and 4
4. Whether the claimant and her family members have already received the compensation from the market committee FAO No. 5915 of 2011 -4- Nawanshahr? OPR 3 and 4
5. Relief Gurmit Kaur, claimant appeared in the witness box and examined Satpal, her husband PW2, Ranjit Singh PW3 and Jaswant Singh PW4. Copy of post mortem report of Balbir Singh was tendered into evidence. To rebut evidence of the claimant, one of the respondents namely Maliat Singh appeared in the witness box.
The learned Tribunal, on appreciation of evidence adduced by the parties returned its findings on Issue No. 1 in favour of the claimant and against the respondents and assessed compensation in view of discussion on issue No. 4 and liability to pay compensation amounting to Rs. 3,20,000/- was fastened upon respondent Harmesh Lal only.
Counsel for the appellant has assailed the findings of the Tribunal both in regard to determination of issue No. 1 against the respondent and further holding him solely liable to pay compensation assessed. It is argued that the claimant-respondent failed to examine any witness who had seen the occurrence in question in order to substantiate her plea that the accident took place due to rashness and negligence on the part of the appellant. It is further argued that as respondents No. 2 and 3 are admittedly the registered owners of the alleged offending vehicle, they cannot escape their liability to pay compensation, if any.
Counsel for the claimant-respondent No. 1 has submitted that the learned Tribunal has taken into consideration several factors to record its conclusion in favour of the claimant for deciding issue No.1. It is argued that immediately after the occurrence, Satpal, father of the deceased arrived FAO No. 5915 of 2011 -5- at the scene of accident and at his behest, DDR Ex. P2 was recorded and the learned Tribunal has rightly relied upon the DDR to record its findings. It is further argued that Harmesh Lal, admittedly, the driver of the vehicle on which the deceased was travelling did not appear in the witness box and he was the best person to state as to how the occurrence in question took place, therefore, the learned Tribunal has correctly drew adverse inference against him while holding that Harmesh Lal was negligent and rash in driving the offending vehicle.
Counsel for respondents No. 2 and 3 would contend that as they had sold the vehicle in question in September 2003 and Harmesh Lal in view of his affidavit Ex. R1 admitted that he had purchased the tractor on 6.9.2003, he (Harmesh Lal) cannot be allowed to take advantage of his lapse for not getting registration of the vehicle transferred in his name for all these years since September 2003 to the date of accident in April 2009. It is further argued that the learned Tribunal has rightly held Harmesh Lal alone being driver and owner of the offending vehicle liable to pay compensation.
I have heard counsel for the claimants and perused the records. Indisputably, Gurmit Kaur, mother of the deceased preferred an application for compensation under Section 166 of the Act and the learned Tribunal framed issue No.1, "if the accident was caused by Harmesh Lal while driving his vehicle in a rash and negligent manner?"
There is no denial that the claimant did not examine any witness who could give an eye witness account of the occurrence and state on oath that the accident took place due to rashness and negligence attributable to driver of the alleged offending vehicle. Satpal, father of the FAO No. 5915 of 2011 -6- deceased and author of the DDR Ex. P2 appeared in the witness box and admitted that he was not present at the spot at the time of accident. As Satpal was not present at the time of accident, anything stated by him and recorded in the DDR Ex. P2 is not on the basis of an eye witness account or in other words, it is the result of mere hearsay or assumption or concoction. The learned Tribunal has relied upon DDR Ex. P2 and factum of failure of the driver to appear in the witness box.
The question now arises, if findings of the Tribunal based upon aforesaid evidence can be allowed to sustain.
Before adverting to the controversy in the present case, it is appropriate to recall the legal position laid down in Oriental Insurance Company Limited vs. Meena Variyal and others, 2007 ACJ 1284 and a recent judgment of the Apex Court Surender Kumar Arora and another vs. Dr. Manoj Bisla and others AIR 2012 S.C. 1918. A relevant extract from para 23 to 25 in Meena Variyal and others' case (supra), is usefully quoted for facility of ready reference:-
23. Learned counsel for the respondent contended that there was no obligation on the claimant to prove negligence on the part of the driver. Learned counsel relied on Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and another (1987 (3) SCC
234) in support. In that decision, this Court clarified that the observations in Minu B. Mehta's case (supra) are in the nature of obiter dicta. But, this Court only proceeded to notice that departures had been made from the law of strict liability and the Fatal Accidents Act by introduction of Chapter VIIA of the 1939 Act and the introduction of Section 92A providing for compensation and the expansion of the provision as to who could make a claim, noticing FAO No. 5915 of 2011 -7- that the application under Section 110A of the Act had to be made on behalf of or for the benefit of all the legal representatives of the deceased. This Court has not stated that on a claim based on negligence there is no obligation to establish negligence. This Court was dealing with no-
fault liability and the departure made from the Fatal Accidents Act and the theory of strict liability in the scheme of the Act of 1939 as amended. This Court did not have the occasion to construe a provision like Section 163A of the Act of 1988 providing for compensation without proof of negligence in contradistinction to Section 166 of the Act. We may notice that Minu B. Mehta's case was decided by three learned Judges and the Gujarat State Road Transport Corporation case was decided only by two learned Judges. An obiter dictum of this Court may be binding only on the High Courts in the absence of a direct pronouncement on that question elsewhere by this Court. But as far as this Court is concerned, though not binding, it does have clear persuasive authority. On a careful understanding of the decision in Gujarat State Road Transport Corporation (supra) we cannot understand it as having held that in all claims under the Act proof of negligence as the basis of a claim is jettisoned by the scheme of the Act. In the context of Sections 166 and 163A of the Act of 1988, we are persuaded to think that the so called obiter observations in Minu B. Mehta's case (supra) govern a claim under Section 166 of the Act and they are inapplicable only when a claim is made under Section 163A of the Act. Obviously, it is for the claimant to choose under which provision he should approach the Tribunal and if he chooses to approach the Tribunal under Section 166 of the Act, we cannot see why the principle stated in Minu B. Mehta's case should not apply to him. We are, therefore, not in a position to accept the argument of learned counsel for the respondents that the observations FAO No. 5915 of 2011 -8- in Minu B. Mehta's case deserve to be ignored.
24. We think that the law laid down in Minu B. Mehta & Anr. Vs. Balkrishna Ramchandra Nayan & Anr. (supra) was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub- section (1) of Section 163A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle.
25. In Pushpabai Purshottam Udeshi & Ors. Vs. M/s Ranjit Ginning & Pressing Co. (P) Ltd. & Anr. [(1977) 3 S.C.R. 372], two of the learned judges who constituted the Bench in Minu B. Mehta (supra) held that when a car is driven by the owner's employee on owner's business, the normal rule was that it was for the claimant for compensation to prove FAO No. 5915 of 2011 -9- negligence. When the Manager of the owner while driving the car on the business of the owner took in a passenger, it would be taken that he had the authority to do so, considering his position unless otherwise shown. If due to his negligent driving an accident occurred and the passenger died, the owner would be liable for compensation. The court noticed that the modern trend was to make the master liable for acts of his servant which may not fall within the expression "in the course of his employment" as formerly understood. With respect, we think that the extensions to the principle of liability has been rightly indicated in this decision.
The Apex Court in a recent decision, Surender Kumar Arora and another's case (supra) after referring to its earlier decisions in Kaushnuma Begum(Smt.) and others vs. New India Assurance Co. Limited and others 2001(1)SCC 9 and Oriental Insurance Company Limited's case (supra), made the following observations in para Nos. 9 to 11:-
"9. Admittedly, the petition filed by the claimants was under Section 166 of the Act and not under Section 163-A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the parents of the deceased to have established that respondent No. 1 drew the vehicle in a rash and negligent manner which resulted in the fatal accident. May be, in order to help respondent no. 1, the claimants had not taken up that plea before the Tribunal. Therefore, High Court was justified in sustaining the judgment and order passed by the Tribunal. We make it clear that if for any reason, the claimants had filed the petition under Section 163-A of the Act, then the dicta of this Court in the FAO No. 5915 of 2011 -10- case of Kaushnuma Begum (Smt.) and others (supra) would have come to the assistance of the claimants.
10. In our view the issue that we have raised for our consideration is squarely covered by the decision of this Court in the case of Oriental Insurance Co. Limited (supra) in the said decision the Court stated:
"Therefore the victim of an accident of his dependents have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle.
11.We are in agreement with the principles stated by this Court in the aforesaid decision."
Keeping in view enunciation of law laid down in above discussed judgments, there is no escape from conclusion that once the claimant approached the Tribunal under Section 166 of the Act, she has to discharge obligation to establish negligence of the driver or owner of the vehicle concerned but to proceed under Section 163-A of the Act, the compensation FAO No. 5915 of 2011 -11- will be awarded in terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner or driver of the vehicle.
With regard to evidentiary value of DDR Ex. P2, as has been noticed hereinbefore, the maker of the statement is admittedly not an eye witness to the occurrence, therefore, the said version cannot be used to advantage of the claimant to discharge onus that the driver of the offending vehicle was rash and negligent. No doubt, an adverse inference can be raised against a party who fails to appear in the witness box to depose about the facts to his special knowledge. However, in view of settled position of law, the petitioner has to prove the issue, the onus whereof lies upon him and he cannot take advantage of weakness of defence. I have yet to come across a situation wherein failure of the respondent-defendant to appear in the witness box can be a substitute for discharging onus of an issue by the petitioner who has approached the court for grant of some relief. I am well conscious that had the petitioner been successful to lead some evidence in regard to rashness and negligence on the part of the driver of the offending vehicle, his (driver's) failure to appear in the witness box to rebut that evidence would have been another circumstance to support cause of the claimant. Keeping in view the evidence adduced by the claimant, I have no hesitation to hold that the claimant has failed to lead satisfactory much less cogent and convincing evidence to establish her claim that the accident in question took place due to rash and negligent driving of Harmesh Lal, the driver. I would hasten to add that the deceased was sitting on mudguard of the tractor which is otherwise not meant for carrying passengers as the tractor is designed to carry only one person i.e. the driver. Keeping in view design of the mudguard, there is every possibility of the person sitting there to get imbalanced and fall down even if FAO No. 5915 of 2011 -12- there is small jerk due to road being bumpy/uneven. In this view of the matter, I find force in contention of the appellant that the learned Tribunal committed a serious error in returning its findings on Issue No. 1 in favour of the claimant and against the respondent-appellant. Accordingly, the findings recorded by the learned Tribunal on Issue No. 1 cannot be allowed to sustain and set aside.
The question which now arises for decision is whether the respondent/claimant can be allowed compensation under 'no fault liability' provided for in Section 140 of the Act.
The Hon'ble Supreme Court of India in Sharanamma and others vs. Managing Director, Divisional Controller, North-East Karnataka Road Transport Corporation (2013)11 Supreme Court Cases 517 has laid down powers of the appellate court while deciding appeal filed under Section 173 of the Act. A relevant extract from the observations is usefully quoted hereinbelow:-
".....It is well settled position of law that when an appeal is provided for, the whole case is open before the appellate court and by necessary implication, it can exercise all powers incidental thereto in order to exercise that power effectively. A bare reading of Section 173 of the Act also reflects that there is no curtailment or limitations on the powers of the appellate court to consider the entire case on facts and law.
It is well settled that the right of appeal is a substantive right and the questions of fact and law at large are open to review by the appellate court. Thus, such powers and duties are necessarily to be exercised so as to make the provisions of law effective."
The appellant has not disputed that the deceased was travelling on the tractor and he sustained injuries out of use of a motor vehicle, therefore, the claimant/respondent is entitled to an amount of Rs. 50,000/- along with interest as awarded by the Tribunal under 'no fault FAO No. 5915 of 2011 -13- liability' in the light of provisions of Section 140 of the Act.
The learned Tribunal has fastened liability to pay compensation on Harmesh Lal and respondents No. 2 and 3 have been exonerated in the light of its findings on Issue No. 3 quoted hereinbelow:-
"Whether respondent No. 3 and 4 have sold the offending vehicle to respondent No. 1 on 6.9.2003. If so, its effect?OPR 3 and 4"
As per plea of respondents No. 2 and 3 (respondents No. 3 and 4 therein) they had sold the vehicle in question in September 2003, long before the accident and Harmesh Lal tendered a duly sworn affidavit in their favour Ex. R1 placed on record. Counsel for respondents No. 2 and 3 has fairly conceded that they continued to be the registered owners of the vehicle till the date of accident on 19.4.2009. There is nothing on record to suggest that these respondents ever sent any intimation to the registering authority with regard to sale of the vehicle to Harmesh Lal. Keeping in view the ratio laid down in Pushpa alias Leela and others v.Shakuntala and others, 2011 AIR (SC) 682, I find merit in the contention of the appellant that respondents No. 2 and 3 being the registered owners of the vehicle cannot escape their liability to pay compensation and, therefore, they are held jointly and severally liable to pay compensation along with Harmesh Lal, appellant. In this view of the matter, the findings recorded by the learned Tribunal on issue No. 3 are modified accordingly.
For the foregoing reasons, the appeal filed by the appellant is partly allowed in the aforesaid terms. Award passed by the Tribunal is modified that the claimant shall be entitled to compensation to the tune of Rs. 50,000/- under 'no fault liability' with interest at the rate of FAO No. 5915 of 2011 -14- 8% per annum from the date of filing the petition till realization. The appellant and respondents No. 2 and 3 are jointly and severally liable to pay compensation to the claimant.
(Rekha Mittal) Judge 3.11.2014 paramjit