Punjab-Haryana High Court
Gurdeep Kaur Widow Of Shri Sukhdev Singh vs Tarsem Singh And Ors. on 16 November, 2007
Equivalent citations: (2008)149PLR362
JUDGMENT Sham Sunder, J.
1. This judgment shall dispose of the aforesaid two appeals, arising out of the common award dated 7.10.1992, rendered by the Motor Accident Claims Tribunal, Karnal, whereby the Claim Petition No. 27 of 1989/103 of 1992 was partly allowed, and compensation, in the sum of Rs. 25,000/-, with interest at the rate of 12% per annum from the date of filing the same, was granted, whereas Claim Petition No. 26 of 1989/104 of 1992 was dismissed.
2. The facts of Claim Petition No. 27 of 1989/103 of 1992, are that, on 2.5.1989, claimant No. 3, namely, Vikram Singh, was driving tractor No. HYM-651, attached with trolley, loaded with wheat, and was going from Ambala towards Nilokheri, for unloading the same, in Nilokheri Grain Market, and when he reached near Nilokheri, a signal was given for turning the tractor towards the right hand side of the road. The tractor had crossed the road, and reached the unmetalled portion of the road, when Bus No. DEP-9640, being driven rashly or negligently by Tarsem Singh-respondent No. 1, came from the opposite direction I.e., from the side of Karnal, and hit the tractor-trolley, in the middle, as a result whereof, the hook of the trolley, got broken, and the tractor was dragged to some distance. In that process, Sukhdev Singh one of the occupants of the trolley, fell down on the G.T. Road, and was crushed under the wheels of the aforesaid bus, resulting into his death at the spot. It was stated that, Sukhdev Singh, was an agriculturist and a dairy farmer aged about 45 years, at the time of his death, and his monthly income was Rs. 3,000/-. Gurdeep Kaur, widow, Shingara Singh and Vikram Singh-sons of Sukhdev Singh-deceased, being his legal heirs, claimed compensation in the sum of Rs. 5 lacs, on account of the death of Sukhdev Singh, as they stated that they were dependent upon him.
3. In Claim Petition No. 26 of 1989/104 of 1992, Gurdeep Kaur widow of Sukhev Singh-deceased, claimed compensation, in the sum of Rs. 20,000/- on account of the damage, caused to the tractor-trolley, in the aforesaid accident.
4. Both the claim petitions, were contested, by the respondents. In the joint written statements, filed in both the cases, separately, the date, time and place of accident were admitted. It was denied that the accident took place, on account of the rash or negligent driving of the bus, referred to herein before, by Tarsem Singh respondent No. 1, driver thereof. On the other hand, it was stated that the bus was being driven, at a moderate speed, on the left side of the road. It was further stated that the accident took place, due to the negligent driving of the driver of the Tractor-trolley, as he suddenly turned the same, towards the wrong side, as a result whereof, it struck with the Bus. It was further stated that Tarsem Singh-respondent No. 1, driver of the Bus tried to avoid the accident, but in vain. It was pleaded that the claimants had no cause of action to file the Claim Petitions, and that the claim petitions were not maintainable. It was further pleaded that the claim petitions were bad for mis-joinder and non-joinder of necessary parties. It was further pleaded that the claimants in Claim petition No. 103 of 1992 (Old No. 27 of 1989) were estopped from filing the same by of their own act and conduct. The remaining averments were denied.
5. On the pleadings of the parties, the following consolidated issues, were framed, in both the claim petitions, by the Tribunal:
1. Whether Gurdip Kaur and 3 others I.e., the claimants in MACT case No. 27 of 1989 are the only legal heirs of Sukhdev Singh deceased? OPP
2. Whether the accident was caused on account of the rash or negligent driving of Bus No. DEP-9640 by its driver? OPP
3. Whether the accident was caused on account of the rash and negligent driving of the tractor-trolley by its driver? OPP
4. To how much amount of compensation are the claimants in MACT Case No. 27 of 1989 entitled to get and from whom? OPP
5. To how much amount of compensation is the claimant in MACT Case No. 26 of 1989 entitled to get and from whom? OPP
6. Whether Grudip Kaur alone was entitled to get compensation for the damage caused to Tractor No. HYM-651? OPP
7. Whether the claimants have no cause of action to get compensation in these cases? OPP
8. Whether the claim petitions are not maintainable in the present form? OPP
9. Whether the claim petitions are bad on account of mis-joinder of parties or on account of non-joinder of necessary parties? OPP
10. Whether the claimants in MACT Case No. 27 of 1989 were estopped from filing the claim petition on account of their own acts and conduct?OPP
11. Relief.
6. The parties led evidence. After hearing the Counsel for the parties, and on going through the evidence on record, the Tribunal came to the conclusion, that the Bus was not being driven by Tarsem Singh-respondent No. 1 rashly or negligently. The Tribunal further held that the accident took place, on account of the rash or negligent driving of the tractor-trolley, by the driver thereof. Ultimately, the Tribunal came to the conclusion that the claimants in Claim Petition No. 103 of 1992 (Old No. 27 of 1989) were only entitled to a sum of Rs. 25,000/-, with interest, at the rate of 12% per annum, on account of no fault liability. Claim petition No. 104 (Old No. 27 of 1989) in which the compensation had been claimed with regard to the damages, caused to the tractor-trolley, in the accident, referred to herein before was dismissed.
7. Feeling aggrieved, against the award dated 7.10.1992, the instant appeals, were filed by the claimants/appellants.
8. I have heard learned Counsel for the parties, and have gone through the record of the case carefully.
The counsel for the appellants, vehemently contended that the Motor Accident Claims Tribunal, was wrong, in coming to the conclusion, that Tarsem Singh-driver of the Bus, was neither rash nor negligent, in driving the Bus, at the relevant time, resulting into accident and leading to the death of Sukhdev Singh, one of the occupants of the tractor-trolley. He further contended that sufficient substantive evidence was led by the claimants, to prove that Tarsem Singh-driver of the Bus, was rash or negligent, in driving the same, as a result whereof, the accident took place leading to the death of Sukhdev Singh, one of the occupants of the trolley attached to the tractor, but the same was ignored by the Tribunal, without any sound reason. The contention of the learned Counsel for the appellants, in this regard, appears to be correct, for the reasons, to be recorded hereinafter. The principle of law, laid down in N.K.V. Bros. (Pvt.) Ltd. v. M. Karumai Ammal 1980 A.C.J. 435 (Supreme Court) was to the effect, that the law is well settled that in a claim petition under the Motor Vehicles Act, the evidence should not be scrutinized, in the manner, as is done in a civil or in a criminal case. The proceedings, before the Tribunal, are of the nature of summary enquiry, whereas, in a criminal case, the rule is of proof beyond reasonable doubt and in a civil case the rule is preponderance of probabilities. If, there is some evidence before the Claims Tribunal to prove a fact, no nicety, doubt or suspicion should weight with it, in deciding a Motor Accident Claims case. In United India Insurance Co. Ltd., Ludhiana v. Kamla Rani (Punjab and Haryana), the principle of law, laid down was to the effect, that the Tribunals established, under the Motor Vehicles Act, are not governed by the rules of procedure envisaged by the Civil Procedure Code. The Tribunals are required to evolve their own procedure to meet the ends of justice, based on the principles of justice, equity and good conscience. The evidence led, in these cases is required to be scrutinized, in view of the principle of law, laid down in the aforesaid authorities.
9. Vikram Singh son of Sukhdev Singh, PW4, was the driver of the tractor-trolley on 2.5.1989, when the accident took place. It is evident from his statement, that, on the relevant day, his father Sukhdev Singh was sitting in the trolley, whereas, 5/7 other persons forcibly became occupants of the same and when he reached near the bus stand of Nilokheri, a signal for taking a turn towards the right hand side was given. Thereafter, he crossed the G.T. road towards the right hand side. When he crossed the road completely, Bus bearing No. DEP-9640, came from the side of Delhi, which was being driven at a very fast speed, rashly and negligently. It is further evident from his statement, that the bus struck against the tractor-trolley, as a result whereof, the trolley got detached; from the tractor, on account of the impact of the accident, and Sukhdev Singh, fell down, on the ground. The wheels of the said bus crushed the head of Sukhdev Singh and he died at the spot. It is further evident from his statement that the tractor-trolley was also badly damaged. He lodged, FIR Ex. PB. It was further stated by him, that the accident took place, on account of the fault of the bus driver. Even during the course of cross-examination he stated that the tractor-trolley had completely crossed the G.T. Road, and was not on the G.T. Road, at the time of accident. The presence of Vikram Singh at the time of accident, is further corroborated from Ex.PB., copy of the FIR, which was lodged by him, at 10.40 A.M. I.e., immediately thereafter (accident). No doubt, Vikram Singh-PW4, is son of Sukhdev Singh-deceased. The mere fact that he is related to the deceased, in itself, is not sufficient to. disbelieve his statement, particularly, when his presence at the time of accident, was duly established. There was absolutely, no reason, on the part of the said witness to depose falsely. Not only this, it is evident from the copy of the mechanical report Ex.PG. of Bus No. DEP-9640, which was involved, in the accident, that the brake of the same was on the second paddle. It means that the brake of the bus, was not in a proper working condition, and it was defective. There is no evidence, on the record, that before leaving Delhi for the destination, the brake of the bus was got checked, from the mechanic properly, by the driver thereof. It was also held in Godaabarish Satpathy v. Brundaban Mishra 1984 A.C.J. 59, that when there was defect in brake I.e., when there was a case of brake failure, the maxim res ipsa loquitur was applicable and there is presumption that the accident was caused due to the negligence of the driver of the vehicle. Not only this, it was admitted by Tarsem Singh, Driver, RW-1, that FIR copy whereof is Ex.PB in relation to the accident aforesaid was registered, against him and he was facing trial, in a Court of law, it is prima facie safe to hold, that the accident occurred on account of his rash and negligent act. The evidence of Vikram Singh PW-4, duly corroborated by the mechanical report Ex.PG, which was prepared after the accident, clearly proved that the accident, took place, on account of the rash or negligent driving of the Bus, by Tarsem Singh-respondent No. 1, its driver. The Tribunal was wrong in holding otherwise. The contention of the Counsel for the appellants, carries substance, and is accepted.
10. The counsel for the respondents, however, submitted that the Tribunal was right in coming to the conclusion, that the driver of the Bus was neither negligent nor rash, in driving the same, when the accident took place. He further contended that, in the FIR, copy whereof is Ex.PB, Vikram Singh stated that he was turning the tractor-trolley towards the right side of the road, when the accident took place, whereas, in his statement while appearing as, PW-4, he stated that he had already crossed the G.T. Road towards Nilokheri and had reached the unmetalled portion of the same, when the accident took place. He further contended that, on account of inconsistency, between the statement of Vikram Singh, PW4, and the FIR Exhibit PB, the Tribunal was right in coming to the conclusion, that it was the driver of the tractor-trolley, who was rash or negligent, resulting into accident, leading to the death of Sukhdev Singh. He further contended that even the photographs placed, on record, clearly showed that the tractor-trolley had just turned towards the right side of the G.T. Road and had not crossed the same, when the accident took place. As stated above, the strict principles of Civil Procedure Code, and the Evidence Act, are not applicable to the enquires, required to be made, in Motor Accident Claim cases. The Tribunal is required to evolve its own procedure, which may be, in consonance with the broad principles of natural justice. The statement of Vikram Singh, PW4, on solemn affirmation, before the Tribunal, constitutes substantive evidence, whereas, the FIR, copy where of Exhibit PB, was his previous statement and not substantive evidence, which could only be used for the purpose of contradiction or corroboration. In the substantive evidence Vikram Singh, stated that he had already crossed the G.T. Road towards Nilokheri, and reached the unmetalled portion of the same. Inconsistency between his statement and the FIR Exhibit PB, on this aspect of the matter, could certainly be ignored. The substantive evidence before the Tribunal was required to be taken into consideration. Even it can be said that in-consistency in Ex.PB, might have occurred, on account of mental condition of Vikram Singh-PW4, immediately after the accident. Since the father of Vikram Singh, had died, in the accident, in question, he must be mentally disturbed and puzzled. In such a situation, his mental condition could be well imagined. If, in that state of mental condition, he could not recite some fact, in the FIR, or recited the same, in the manner, which was in contradiction to his substantive evidence, that could be ignored. In Virat Sama v. Mohan Lal , the principle of law, laid down, was to the effect, that the FIR is often lodged, in haste, and the same cannot be a substitute for the evidence giving the exhaustive version of the occurrence. The statements before the Tribunal are made, on solemn affirmation, whereas the FIR is never lodged on solemn affirmation. The principle of law, laid down, in the said authority, is fully applicable, to the facts of the present case. The Tribunal also took into consideration the photographs, and the site plan Exhibit PM while coming to the conclusion, that the accident took place, on account of the rash and negligent driving of the driver of the tractor-trolley. It may be stated here, that no significance, could be attached to the photographs, as it is a matter of common knowledge, that after the accident the vehicle do not remain in the same position, in which the same was at the time of accident. Exhibit PM, is only a rough site plan. The author of the same was not produced to verify the authenticity of the same. No doubt, Tarsem Singh-respondent No. 1, while appearing, as RW1, stated that when the Bus was at a distance of 4/5 feet, the tractor-trolley had turned towards the right side for crossing the G.T. Road, without giving any signal, and the accident took place on account of his negligence. In case, the accident had taken place, on account of the negligence of the driver of the tractor-troller, Tarsem Singh, RW-1, could certainly make a statement, before the police, immediately after the same that he had been falsely implicated. He could also make a complaint, to the Superior Police Officers, in case, he was not heard by the junior police officers, regarding his false implication. He could also make a complaint, to a Superior Officer, of his department, immediately, on reaching Delhi, that the accident had taken place, on account of the rash and negligent driving of the driver of the tractor-trolley and he was falsely implicated, in a criminal case. He, however, did not adopt any such method. He kept mum throughout, and, ultimately, made his statement as RW-1, for the first time, before the Tribunal on 14.3.1991 I.e., after about two years of the accident. The Tribunal, in my opinion, was not right in coming to the conclusion that the accident took place, on account of the rash and negligent driving of the driver of the tractor-trolley. The Tribunal did not appreciate the evidence produced, on record, with regard to the rash and negligent act of the driver of the Bus, in a proper manner, as a result whereof, miscarriage of justice occasioned. Reliance on the photographs, site plan and the statement of Tarsem Singh-RW1, by the Tribunal was, therefore, misplaced. The submission of the Counsel for the respondents being without merit, must fail and the same stands rejected.
11. It was next contended by the counsel for the respondents, that Vikram Singh, was not holding any valid driving licence, at the time of accident, which clearly showed that he was not competent to drive the tractor-trolley and, as such, the accident took place, on account of his rash and negligent act. During the course of cross-examination, it was stated by Vikram Singh, PW-4, that he had learners' licence at the time of accident, which was lost. He further stated that he obtained the driving licence, through some lawyer of Kamal. Since he lost the licence, he could not produce the same. In case, the respondents had any doubt, that Vikram Singh was not holding a valid driving licence, at the relevant time, they could summon the record of the Licensing Authority, Karnal, where from he had obtained the licence. From the record, it could be proved, by the respondents, as to whether, he was holding a valid driving licence or not. It is evident from Ex.PM, Matriculation examination Certificate of the Board of School Education, Haryana of Vikram Singh, that he was born on 8.8.1970. It means that at the time of accident on 2.5.1989, he was about 18 years and 9 months of age and, therefore, was eligible to hold the driving licence, as per the provisions of the Motor Vehicles Act. In Suleman Rehiman Mulani v. The State of Maharashtra 1987 A.C.J. 51 (Supreme Court), it was held that the mere fact that the driver was not holding a valid licence, when he knocked down a pedestrian, did not mean that he was rash or negligent in driving the vehicle. The principle of law laid down in the said authority is applicable to the facts of the present case. The submission of the counsel for the respondents, therefore, being without merit, must fail and the same stands rejected. Since,it has been held that respondent No. 1-driver of the Bus, was rash or negligent in driving the bus, as a result whereof, the accident took place, leading to the death of Sukhdev Singh-deceased, the findings recorded by the Tribunal on issues No. 2 and 3 being in-correct are reversed.
12. Coming to the next question, as to whether, the appellants are entitled to compensation on account of the death of Sukhdev Singh, it may be stated here, that it is proved from the evidence of Gurdeep Kaur PW-1 widow of Sukhdev Singh-deceased, that he was an agriculturist. Gurdeep Kaur-claimant, PW-1, stated that Sukhdev Singh was owner of 4 acres of land and his sisters were owners of 12 acres of land. She further stated that he was cultivating the entire land and earning Rs. 3,000/- per month. According to PC Jamabandi, Sukhdev Singh, deceased was shown to be in possession of 1/4th share of 219 kanals of land, which comes to about 7 acres. According to the post mortem, report Ex. PA, the age of the deceased was 55 years. Since Sukhdev Singh was managing and cultivating about 7 acres of land as per the Jamabandi PC, the service rendered by him in skillfully managing and cultivating the land could be estimated in terms of money at Rs. 3,000/- per month. He could not merely treated as a servant or a labourer. No doubt, the land remained intact, even after the death of Sukhdev Singh. His monthly income, therefore, could be said to be Rs. 3,000/-. He must be keeping a sum of Rs. 1,000/- for his personal maintenance, thereby leaving a sum of Rs. 2,000/- for the maintenance o the appellants. It is a fit case in which the multiplier of 8 should be applied. The appellants are also entitled to funeral expenses in the sum of Rs. 2,000/-. The appellants are thus held entitled to compensation, in the sum of Rs. 1,94,000/- (2,000 x 12 x 8+2,000 as funeral expenses) in equal shares, with interest at the rate of 9% per annum, from the date of filing the claim petition until the realization of the amount, excluding Rs. 25,000/- with interest already granted by the Tribunal. The findings of the Tribunal on issue No. 4 are modified, in the manner, stated above.
13. Coming to the compensation, in respect of damage caused, to the tractor-trolley, in the said accident, it may be stated here that the bills Exhibit P1 to Exhibit P4 have been proved by Ram Kumar (PW-2) and Ram Rattan (PW-3) in their evidence. The tractor was completely damaged. The total amount of Rs. 13812.03 was spent for the repair of the tractor-trolley and for the purchase of spare parts, required for the repair of the said tractor-trolley. Since, it has been held that the driver of the bus was rash or negligent in driving the same, as a result whereof, the accident took place, and the tractor-trolley were damaged, Smt. Gurdeep Kaur, widow of the deceased was entitled to compensation in the sum of Rs. 13812.03 in claim petition No. 26 of 1989. The findings of the claims Tribunal on issue No. 5 and 6 to the contrary are reversed.
13A. In view of the reasons recorded herein before, both the appeals are accepted with costs. The award dated 7.10.1992, in claim Petition No. 103 of 1992 (old No. 27 of 1992) is modified to the extent, that the claimants/appellants are granted compensation in the sum of Rs. 1,94,000/- (2000 x 12 x 8 + 2000 as funeral expenses) with interest at the rate of 9% per annum, in equal shares, from the date of filing the said petition, till the realisation of amount. The amount of Rs. 25,000/- with interest already awarded, by the Tribunal in this petition shall stand adjusted against the amount finally awarded.
14. The award in Claim Petition No. 104 of 1992 (Old No. 26 of 1989) is set aside and compensation in the sum of Rs. 13,812.03 ps. with interest at the rate of 9% per annum, from the date of filing the claim petition till the realisation of amount is awarded in favour of Gurdeep Kaur-appellant.
15. All the respondents shall be jointly and severally liable to pay the amount of compensation awarded in both the petitions.