Punjab-Haryana High Court
Smt. Sheela Devi And Ors. vs Jayanti Parshad And Ors. on 26 August, 1994
Equivalent citations: 1995ACJ1164, (1994)108PLR570
JUDGMENT Amarjeet Chaudhary, J.
1. This appeal has been filed against the award of the Motor Accident Claims Tribunal, Gurgaon dated 1.10.1985 which had dismissed the claim petition filed under Section 110-A of the Motor Vehicles Act on account of death of Suresh Chand, husband of Sheela Devi, appellant No.1, father of appellants No. 2 to 5 and son of appellants No. 6 to 7 who died in the accident on 25.3.1984. In the claim petition, they had claimed Rs. 40,000/- as compensation.
2. In this case, the deceased was 33 years of age at the time of his death and was drawing Rs. 950/- as his salary. The Tribunal assessed the monthly dependency of the claimants on the deceased at Rs. 500/-. By holding annual dependency of the claimants on the deceased at Rs. 6,000/- and by applying a multiplier of 16, the Tribunal held the claimants to be entitled to Rs. 96,000/- as compensation. Since, the claimants had claimed only Rs. 40,000/- the compensation payable to the claimants was restricted to Rs. 40,000/-.
3. The case of the claimants as set up in the claim petition was that on 22.3.1984 Suresh Chand Gupta, deceased, who was working as Teacher in Government High School and had gone to village Ghamroj to supervise Matriculation Examination as Assistant Superintendent, was standing near Bus Stand Ghamroj and was waiting for a bus for going to Sohna. Taxi No. DLY 823 which was being driven by its driver in a reckless and negligent manner, came from Sohna side and knocked down the deceased. The deceased was taken to Kabliji Hospital where he was given first aid and thereafter referred to General Hospital, Gurgaon, where he was medically examined and his statement was also recorded by the Police. Later on, he was referred to All India Institute of Medical Sciences, New Delhi, where he succumbed to his injuries on 25.3.1984.
4. The case of the claimants was that the accident had taken place due to negligent and reckless driving of the taxi being driven by its driver Shri Jayanti Parshad. The offending vehicle was owned by M/s American Express Taxi Company, respondent No.2.
5. The claim petition was contested by the respondents. On the pleadings of the parties, the Tribunal had framed following issues:-
1. Whether the road accident on 22.3.1984 and the resultant death of Suresh Chand on 25.3.1984 occurred owing to rash and negligent act of driving of car (Taxi) No. DLY 823 owned by respondents No.2 and 3 on the part of its driver Jayanti Parshad, respondent No. 1? OPP
2. If issue No. 1 is proved, whether the claimants as heirs and dependents of the victim of the road accident are entitled to the award of compensation ? If so, how much and against whom? OPP.
3. Relief.
6. The material issue No. 1 was decided against the appellants-claimants. On the quantum of compensation, the Tribunal held that the claimants were entitled to Rs. 96,000/- but the compensation was restricted to Rs. 40,000/- as claimed by the claimants in the claim petition.
7. The award was challenged on the ground that the finding returned by the Tribunal under issue No. 1 is against evidence. The claimants had adduced ample evidence to prove that the accident had occurred due to negligence of the driver of taxi No. DLY 823. The evidence of Radhey Lal and other circumstances pointing towards the guilt of the driver of the offending vehicle were erroneously ignored by the Tribunal.
8. I have considered the submissions of the learned Counsel for the parties and scanned the entire evidence on record.
9. In order to prove their case, the claimants had examined Radhey Lal as PW-3 and Chander Parkash as PW-4. Constable Bir Singh was produced as PW-5 in order to prove the statement made by the deceased before the police on 22.3.1984 which was exhibited as P-2.
10. Radhey Lal while appearing as PW-3 had deposed that in the month of March 1994, when he was standing in front of the building of Kabliji Hospital in the area of village Ghamroj, an accident had taken place at about 12.30 or 1.00 PM. This witness had further stated that an Ambassador Car No. DLY 823 came at a very high speed from the side of Gurgaon which hit and knocked down Suresh Chand, who was standing on the katcha portion by the side of the road. This witness had also deposed that he had gone to Kabliji Hospital op that day for his treatment. It is revealed from the testimony of this witness that the offending vehicle was stopped by its driver after the accident and Suresh Chand injured was removed to Kabliji Hospital.
11. The deceased had made a statement, which is exhibit P.2, before the Police on 22.3.1984 which was testified by Constable Bir Singh. The deceased was medico-legally examined by Dr. Kamal Gupta, General Hospital, Gurgaon. It is revealed from his report Ex. P.3 that Suresh Chand deceased was, admitted in Hospital on 22.3.1984 at 4.15 PM in unconscious condition and blood was oozing from his left ear. I am of the considered view that since the deceased was admitted in unconscious condition in the Hospital, there was no occasion for the deceased to make such a statement Ex. P-2. In fact, there is nothing on the record to suggest that the deceased ever made such a statement, Ex.P-2. Moreso, the possibility of manipulating such a statement in order to support the driver/owner of the offending vehicle, cannot be ruled out.
12. The testimony of Radhey Lal (PW-3) clearly reveals the manner in which the accident had taken place. The accident had occurred in his presence when the deceased was standing on the katcha portion of the road. This witness had stated in clear terms that the accident had taken place due to rash and negligent driving of the car driver. The only reason for disbelieving the version of this witness by the Tribunal was that in the cross-examination, he could not disclose the name of the Doctor from whom he got his eyes tested. In my view, the presence of this witness on the day of alleged accident was natural as he was to go to the Hospital for getting his eyes tested and had given a clear picture of the manner in which the said accident had taken place. I do not see any reason to disbelieve the testimony of this eye-witness.
13. In the case in hand, the death of the deceased is not in dispute. The only question which requires consideration is whether the deceased had died as a result of rash and negligent driving of tan No. DLY 823. Des Raj, respondent No. 3, who is the owner of the offending vehicle DLY 823 while appearing as RW-1 had shown ignorance that this car was involved in the accident. However, he had admitted that the car was insured with National Insurance Company, respondent No.4. It has come in the evidence of Radhey Lal (PW-3) who is an eye-witness of the accident, that the offending vehicle was being driven by its driver rashly and negligently. The car hit the deceased while he was standing on the Katcha portion of the road. As per version of this witness, the car was stopped by the driver after the accident. Thus from the testimony of this witness, it can be safely inferred that the accident had taken place due to rash and negligent driving of Taxi No. DLY 823 by its driver Jayanti Parshad.
14. The other aspect of the matter is that the driver of the offending vehicle was not produced in the witness box Had he been produced, he would have been proved the best person to admit or deny the factum of accident and the manner in which it had taken place. The Insurance Company cannot take the plea that the accident had not taken place due to rash and negligent driving by the driver of the offending vehicle. Such plea can only be taken by the driver, who admittedly has not been produced in the witness box.
15. In the light of the foregoing discussion, this Court has reached the conclusion that the accident in the case in hand taken place due to rash and negligent driving of the car driver and the statement Ex. P.2 of the deceased appears to have been fabricated in order to support the driver/owner of the taxi. Therefore, the finding arrived at by the Tribunal on issue No. 1 is set aside and accordingly, this issue is decided in favour of the claimants appellants.
16. The other aspect of the matter is that this Court while deciding CM No. 3233-CII of 1990 seeking clarification of the order dated 3.6.1987, passed under Section 92-A of the Motor Vehicles Act, held that it was not disputed that the taxi was involved in the accident. In view of the involvement of the offending vehicle in the accident, I am not inclined to take contrary view of the matter.
17. In view of the foregoing discussion, this appeal is allowed and the appellant-claimants are held to be entitled to Rs. 40,000/- as compensation with 12% PA interest from the date of claim application. Out of this amount, a sum of Rs. 15,000/- as already paid to them under Section 92-A of the Motor Vehicles Act is to be adjusted and the balance amount of compensation i.e. Rs. 25,000/- is to be shared by the claimants as under:-
1. Smt.Sheela Devi, widow Rs.5,000/-
2. Mukesh minor son Rs.2,500/-
3. Naresh, minor son Rs.2,500/-
4. Sunita, minor daughter Rs.2,500/-
5. Renu Bala, minor -do- Rs.2,500/-
6. Kishan Lal Rs.5,000/-
7. Smt. Chameli Devi Rs.5,000/-
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Rs.25,000/-
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The share of the minor-claimants is to be deposited in the Fixed Deposit Account in some Nationalised Bank and they shall be entitled to withdraw the same on attaining age of majority. The compensation shall be paid by the Insurance Company, respondent No. 4.
18. The parties are left to bear their own costs.