Allahabad High Court
Deen Dayal And Others vs Nishan Singh And Others on 23 March, 2022
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. 1556 of 2002 Appellant :- Deen Dayal and Others Respondent :- Nishan Singh And Others Counsel for Appellant :- T.A.Khan,Rakesh Kumar Mishra Counsel for Respondent :- Radhey Shyam,Vinod Singh Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
1. Heard Sri Rakesh Kumar Mishra, learned counsel for the appellants and Sri Radhey Shyam and Sri Vinod Singh, learned counsel for the respondents.
2. By means of this appeal, the appellants challenge the judgment and award dated 20.5.2002 passed by Motor Accident Claims Tribunal/Addl. District Judge, Court No.2, Rampur (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 4 of 2001.
3. Brief facts as culled out from the record are that on 1.11.2000 when the deceased Kuldeep Singh was going to Post Office, Galla Mandi Road, Bilaspur, by his bicycle, the driver of Truck, bearing no.HR 26 GA 1507, driving the vehicle rashly and negligently came and dashed the bicycle at about 10:00 a.m. from behind due to which the deceased died on the spot.
4. The claimants being legal heirs of the deceased preferred the claim petition claiming a sum of Rs. 60,10,000/- from the respondents. The claimants pleaded that the deceased was the sole bread-winner of the family. He was dealing with the electrical goods and he was earning at least Rs. 6,000/- per month and because of his death the entire family has been rendered helpless. An F.I.R. came to be registered, bearing no.399 of 2000, Police Station Bilaspur, district Rampur.
5. The Apex Court in UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SC 948, has held that all the issues raised in the memo of appeal are required to be addressed and decided by the first appellate court.
6. Respondent no.3 - owner of offending vehicle has filed reply denying certain facts and has contended that the claimants have claimed an exorbitant amount. The written statement specifically contends that the driver of the truck was driving the truck at a slow speed. It was driven by a driver, who had valid licence. The driver was not negligent. Accident occurred due to negligence of the deceased and, therefore, the owner or driver would not be liable. The driver had valid driving licence and the vehicle was insured with National Insurance Company Limited. The Insurance company - respondent no.2 has filed its reply of denial and has contended that the vehicle was not insured with it. It was being driven by driver not having valid driving licence.
7. The Tribunal framed about 5 issues and answered the first issue against the appellants herein and rejected the claim petition. One of the reasons assigned for rejecting the claim petition is that PW1 could not convey as to whether at 10:00 a.m. it was dark or it was day light. The Tribunal has surmised that PW1 has nowhere stated that he knew English and, therefore, it was very doubtful whether he could have read the number printed in English of the vehicle in question. The Tribunal held that no other eye witness named in F.I.R. was examined by the claimants before the Tribunal and further in his oral testimony opined that PW1 did not convey that the accident occurred at 10:00 a.m. Though, this fact was deposed by PW2. The Tribunal came to the conclusion that when driver ran away from the place of accident, how PW1 came to know his name and number of vehicle. At the out set, these findings are perverse. The Tribunal has not discussed the reply filed by the respondent wherein the respondent has not denied the accident having taken place. The driver has not stepped into the witness box. The findings are based on surmises and conjectures drawn by the learned Tribunal without any pleading.
8. Once F.I.R., chargesheet and the post-mortem report are filed before the Tribunal, prima facie, they would prove that the accident had occurred with the vehicle in question. These are three basic facts, which are required to be established accident involving the motor vehicles even in the year of accident i.e. 2001. The Tribunal with utmost respect has fallen in grave error in dismissing the claim petition. The post-mortem report of the deceased goes to show that he died after he sustained injuries caused due to vehicular accident. The owner of the truck admitted the factum of the accident in written statement filed before Tribunal.
9. A recent decision of Division Bench by this Court in case titled Smt. Minakshi Srivastava and others Vs. Dheeraj Pandey and others, F.A.F.O. No.3425 of 2016, decided on 11.3.2022, where the factum of accident is accepted by the owner will apply and enure for the benefit of these claimants.
10. Learned Counsel for the appellant has relied on the decision of this Bench in Smt. Minakshi (supra) wherein it is held that once the owner has accepted the involvement of vehicle in accident, the Tribunal cannot dismiss the claim petition unless proved otherwise.
11. The learned Tribunal has fallen in grave error in not considering the matter under beneficial piece of legislation. It has though narrated that F.I.R. was filed on same day, chargesheet was laid but there is no discussion on the same in the award. The evidence of PW1 and PW2 is clinching so as to establish that Kuldeep singh alias Pappu was dashed by the truck and died on the spot. The findings of fact that Ram Kali did not opine or depose that she saw the accident by her own eyes has no relevance. All these findings are not only perverse but against the record. The Tribunal comes to the conclusion that the claimant did not prove that respondent no.3 was driving the vehicle at the time of the accident when F.I.R. is filed it has its persuasive value. Chargesheet against Nishan Singh was primary evidence of his driving the vehicle, which has not been rebutted nor proned to be concocted.
12. As the matter is of 20 years old, we remand the matter as the owner had not produced any documentary evidence regarding licence of his driver and that the vehicle was insured. All these facts will have to be ascertained by the Tribunal.
13. We are fortified in our view by the decisions of Apex Court in (a) Smt. Kaushnuma Begum And Ors vs. The New India Assurance Co. Ltd. (2001) 2 SCC 9., (b) Vimla Devi and others Vs. National Insurance Company Limited and others, 2019 (133) ALR 768; (c) Anita Sharma v. New India Assurance Co. Ltd. (2021) 1 SCC 171 (d) Dulcina Fernandes & Ors. vs. Joaquim Xavier Cruz & Anr., AIR 2014 SC 58, and on the decision of Madras High Court in Reliance General Insurance Co. Ltd. Vs. Subbulakshmi and Others, passed in C.M.A. No. 1482 of 2017 [C.M.P. No. 7919 of 2017. (CMA Sr. No. 76893 of 2016)] and the decision of Apex Court referred in the said case namely Puspabai Purshottam Udeshi Vs. Ranjit Ginning and Pressing Co., 1977ACJ 343 (SC), the ratio laid in these decisions would be applicable in such matters where Tribunal takes hyper technical stand in dismissing the claim petition which is filed under the beneficial piece of legislation. Despite the fact that judgment of Smt. Kaushnuma Begum And Ors vs. The New India Assurance Co. Ltd. (2001) 2 SCC 9 was very much in vogue, the Tribunal has dismissed the claim petition holding that there are discrepancies in the evidence of prosecution witnesses.
14. One more aspect can be looked into namely provisions of Order XII of Code of Civil Procedure, 1908, which deals with judgment on admission which stipulate as under:-
(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
15. The decision of the Apex Court more particularly in the case of Kusum Lata and Vimla Devi will not permit us to concur with the view of the learned Tribunal. The written statement of the Insurance company and that of the owner ought to have been looked into by the Tribunal before dismissing the claim petition. The matter also has to be looked from the angle of negligence. The principles of deciding negligence when viewed will go to show that the driver of the truck dashed with the bicycle from behind and, therefore, we can safely held that the driver of the truck was solely negligence.
16. We are even supported in our view by the ratio in judgment of Apex Court in case titled Mangla Ram Vs. Oriental Insurance Co. Ltd. and others, 2018 0 Supreme (SC) 283 and this High Court titled Tahsin Vs. Yogesh Kumar and another, 2019 0 Supreme (All) 1605.
17. This takes us to the issue of compensation and liability. The judgment of Vimla Devi (supra) where the Apex Court has also granted compensation where the appeal and the claim petition were dismissed. The judgment in Bithika Mazumdar and another Vs. Sagar Pal and others, (2017) 2 SCC 748, and the judgment of Vimla Devi (supra) decided the compensation awardable. The deceased was in his own occupation. He was selling electrical goods and in the year of accident i.e. 2001 his income can be safely considered to be Rs. 4,000/- as he was bachelor and was aged 20 years. He has left behind him his parents, minor brothers and sisters. Hence, 40% would be added to his income. Being a bachelor, he would be spending 1/2 on himself 1/2 would be deducted. Multiplier of 14 would be applicable as per Sarla Verma (supra) and Rs. 40,000/- for filial consortium. Hence, the compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) is computed herein below:
i. Income Rs.4,000/-
ii. Percentage towards future prospects : 40% namely Rs.1600/-
iii. Total income : Rs. 4000 + 1600 = Rs. 5,600/-
iv. Income after deduction of 1/2 : Rs. 2,800/-
v. Annual income : Rs.2800 x 12 = Rs.33,600/-
vi. Multiplier applicable : 14 vii. Loss of dependency: Rs.33,600 x 14 = Rs. 4,70,400/-
viii. Amount under non pecuniary heads : Rs.40,000/-
ix. Total compensation : Rs. 5,10,400/-
LIABILITY
18. The finding that the Insurance company should have proved the driving licence of the driver of the vehicle. Unfortunately, the owner in written statement has stated that the vehicle was being driven by licensed driver but his licence has not been produced. Issue of non production of driving license either by the owner or the driver is no longer res integra as the judgment in Pappu and others Versus Vinod Kumar Lamba and others, reported in AIR 2018 SC 592, lays down the law. The oral submission of learned Counsel for the Insurance company will have to be allowed and recovery rights will have to be granted. However, this recovery rights would be subject to proving the fact that the owner, who was aware that the driver did not have proper driving licence for which the judgment of the Apex Court in Singh Ram Vs. Nirmala and others, (2018) 3 SCC 800, would apply in full force.
19. The appeal is partly allowed. We request the Tribunal to take up the matter and decide the same for liability as the licence is not filed either before Tribunal or this Court and owner has absented here. The factum of licence will have to be proved by owner/driver of the vehicle in question. The matter may be decided on or before 31.10.2022 as 20 years have already elapsed.
20. The amount once deposited, may be recovered from the owner by the Insurance company as it is proved that the vehicle was insured on the date of the accident. The Tribunal shall decide the issue of liability only which shall be decided after hearing the owner and the Insurance company. The amount once deposited may be disbursed to the claimants as per the judgment in Bajaj Allianz General Insurance Company Private Ltd. v. Union of India and others vide order dated 27.1.2022.
21. The respondent-Insurance Company shall deposit the amount with interest at the rate of 6% from the date of filing of the claim petition till the amount is deposited within a period of 12 weeks from today. The amount already deposited be deducted from the amount to be deposited.
22. We, therefore, remand the matter to the Tribunal. The record be sent back to the Tribunal forthwith.
Order Date :- 23.3.2022 Irshad