Madhya Pradesh High Court
Smt. Premlata Bai vs Sandeep Prasad on 3 October, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 3 rd OF OCTOBER, 2023
MISC. APPEAL No. 4461 of 2019
BETWEEN:-
1. SMT. PREMLATA BAI W/O SHRI DINESH YADAV,
AGED ABOUT 38 YEARS, HOUSE NO.22 ROOP
NAGAR NEAR MINAL RESIDENCY BHOPAL
PERMANENT R/O HOUSE NO. WARD NO.43 NEAR
DATTA MANDIR LALUBAGH BURHANPUR
(MADHYA PRADESH)
2. DINESH YADAV S/O LATE CHHOTELAL YADAV,
AGED ABOUT 42 YEARS, HOUSE NO. 22 ROOP
NAGAR NEAR MINAL RESIDENCY BHOPAL
PERMANENET HOUSE NO.WARD NO. 43 NEAR
DATTA MANDIR LALUBAGH (MADHYA PRADESH)
3. KU.ANUSHREE YADAV D/O DINESH YADAV, AGED
ABOUT 11 YEARS, OCCUPATION: MINOR
THROUGH NATURAL GUARDIAN FATHER DINESH
YADAV S/O LATE CHHOTELAL YADAV HOUSE NO.
22 ROOP NAGAR NEAR MINAL RESIDENCY
BHOPAL PERMANENET HOUSE NO.WARD NO. 43
NEAR DATTA MANDIR LALUBAGH (MADHYA
PRADESH)
4. KU.SALONI YADAV D/O DINESH YADAV, AGED
ABOUT 15 YEARS, OCCUPATION: MINOR
THROUGH NATURAL GUARDIAN FATHER DINESH
YADAV S/O LATE CHHOTELAL YADAV HOUSE NO.
22 ROOP NAGAR NEAR MINAL RESIDENCY
BHOPAL PERMANENET HOUSE NO.WARD NO. 43
NEAR DATTA MANDIR LALUBAGH (MADHYA
PRADESH)
5. KU.SIDDHI YADAV D/O DINESH YADAV, AGED
ABOUT 4 YEARS, OCCUPATION: MINOR
THROUGH NATURAL GUARDIAN FATHER DINESH
YADAV S/O LATE CHHOTELAL YADAV HOUSE NO.
22 ROOP NAGAR NEAR MINAL RESIDENCY
BHOPAL PERMANENET HOUSE NO.WARD NO. 43
NEAR DATTA MANDIR LALUBAGH (MADHYA
PRADESH)
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 05-10-2023
18:49:41
2
6. KU.NIKITA YADAV D/O DINESH YADAV, AGED
ABOUT 17 YEARS, OCCUPATION: MINOR
THROUGH NATURAL GUARDIAN FATHER DINESH
YADAV S/O LATE CHHOTELAL YADAV HOUSE NO.
22 ROOP NAGAR NEAR MINAL RESIDENCY
BHOPAL PERMANENET HOUSE NO.WARD NO. 43
NEAR DATTA MANDIR LALUBAGH (MADHYA
PRADESH)
7. KU.KHUSBU YADAV D/O DINESH YADAV, AGED
ABOUT 21 YEARS, OCCUPATION: MINOR
THROUGH NATURAL GUARDIAN FATHER DINESH
YADAV S/O LATE CHHOTELAL YADAV HOUSE NO.
22 ROOP NAGAR NEAR MINAL RESIDENCY
BHOPAL PERMANENET HOUSE NO.WARD NO. 43
NEAR DATTA MANDIR LALUBAGH (MADHYA
PRADESH)
....APPELLANTS
(NONE)
AND
1. SANDEEP PRASAD S/O KOMAL PRASAD
OCCUPATION: DRIVER 414 VISHWAKARMA
NAGAR HABIBGANJ BHOPAL (MADHYA
PRADESH)
2. SUNIL CHATARA S/O SIKHARCHAND CHATARA
BITY BUS DEPOT BAIRAGARH BEHIND
VISHARAJAN GHAT BAIRAGARH (MADHYA
PRADESH)
3. BRANCH MANAGER ORIENTAL INSURANCE
COMPANY LIMITED DIVISIONAL OFFICE OF
SULTANIYA ROAD BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SHIV KUMAR SHARMA - ADVOCATE FOR RESPONDENTS NO. 1 & 2
AND SHRI ROHIT JAIN - ADVOCATE FOR THE RESPONDENT NO.3)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal is filed by the claimants being aggrieved of the award dated 27.06.2019, passed by learned 22nd Addl. Motor Accident Claims Tribunal, Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 05-10-2023 18:49:41 3 Bhopal (M.P.), in MVC No.1505/2018 (Smt. Premlata Bai and others Vs. Sandeep Prasad and others), on the ground that despite making computation of compensation payable in favour of the claimants at Rs.15,82,000/- (Rupees Fifteen Lakhs and Eighty Two Thouand), Tribunal has rejected the claim, on the ground that eye witness was not examined in the case and, thus, has doubted the factum of accident and the manner in which accident took place, pointing out certain minor discrepancies in the seizure memo etc.
2. Tribunal has held that in the light of the decision of this High Court in Nanhu Singh Vs. Jaheer [2005 (1) MPWN 91] and applying the ratio of law in the case of Mahila Dhanwantai and others Vs. Kulwant and others (AIR 1994 MP 44) and it is held that it is not necessary for the Tribunal to look into the aspects and contents of FIR and has, thus, rejected the Claim Petition.
3. Shri Sharma, learned counsel for respondents No. 1 & 2, in his turn, submits that in the FIR Ex.P/1, it is specifically mentioned that 'Dehati Nalishi' was recorded on the basis of the report received from Paliwal Hospital, Bhopal. It is mentioned by the informant Farid Khan that in front of Midland Hospital on Chetak Bridge under Govindpura Police Station, accident took place on 28.04.2018 at about 7:40 P.M. when he had found the deceased lying on the road after falling from the Red Line Bus, who was admitted in Paliwal Hospital, where doctor had declared him to be dead. On the basis of the identity card recovered from his pocket, his name was discovered to be Ankit Yadav S/o Dinesh Yadav. Death of Ankit Yadav had taken place on account of fall from a Red Line Bus, which was driven rashly and negligently by the driver of the bus, as a result of which, he sustained injuries to which he succumbed.
4. It is submitted that final report was also filed against the driver owner of the said bus and seizure was made vide Annx.P/4, in which registration number of Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 05-10-2023 18:49:41 4 the bus is clearly mentioned as MP-04-PA/3217, Route Number 303. It is pointed out that learned Tribunal rejected the claim on the ground that even in the final report police has not mentioned the number of the bus as has been seized by it.
5. Shri Rohit Jain, learned counsel for the respondent No.3, supports the impugned award and submits that no indulgence is required in the matter and award be maintained.
6. After hearing learned counsel for the parties and going through the record, it is settled principle of law that under Section 166 of the Motor Vehicles Act, 1988, injury/death is to be proved through a motor accident. Mode and method are to be proved by the owner-driver and insurer i.e. the other side.
7. Ratio of law laid down by Division Bench of this Court in Mahila Dhanvantai and others Vs. Phulwant Mahendra and others (1994 MPLJ
674), is that failure of driver of vehicle to prove that he was not negligent, then doctrine of res ipsa loquitor is applicable.
8. In the present case, factum of death on account of road accident is evident from postmortem report from the FIR Ex.P/1. This fact is not contradicted by the owner-driver of the seized bus that accident had not taken place with the bus which was driven by Sandeep Prasad and owned by Sunil Chatara and which was in turn insured with the Oriental Insurance Company Limited.
9. In view of such fact that factum of road transport accident was not denied causing injuries to the deceased Ankit Yadav, resulting on account of fall from the said Red Line Bus and FIR was promptly recorded on 29.04.2018 at 1:12 hours, whereas, accident took place at 19:20 hours, principle of res ipsa loquitor will be applicable and where circumstance speaks for themselves, then Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 05-10-2023 18:49:41 5 learned Tribunal was in error in rejecting the Claim Petition on the ground that no eye witness was examined and there was technical fault in the final report of not mentioning the details of the offending vehicle as was seized vide Ex.P/4.
10. In case of Smt. Pushpabai Parshottam Udeshi and others Vs. M/s Ranjit Ginning & Pressing Co. Pvt. Ltd. and another (AIR 1977 SC 1735), so also State of M.P. Vs. Asha Devi (1989 JLJ 541), it is held that in some cases, considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him, but is solely within the knowledge of the defendant, who caused it, the plaintiff can prove the accident, but cannot prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of res ipsa loquitor. The general purport of the words "res ipsa loquitor" is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself, so that it is sufficient for the plaintiff to prove the accident and nothing more. In the present case, it is like that where the accident speaks for itself, therefore, on the application of the doctrine the burden shifted upon the respondents/defendant to explain the accident.
11. In the present case, neither the driver nor owner was examined. Even the Insurance Company did not examine any witness to prove that accident had not taken place with the Red Line Bus in question and it is a case of implant or false implication.
12. Thus, in view of such facts, when impugned award is tested, learned Tribunal has clearly erred in denying the claim on the basis of hyper technicalities, it cannot be sustained in the eye of law, specially in view of applicability of principles of res ipsa loquitor. Therefore, impugned award is set aside to the extent of denial of the claim. Since Tribunal has assessed claim Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 05-10-2023 18:49:41 6 at Rs.15,82,000/- (Rupees Fifteen Lakhs and Eighty Two Thousand). Same will be payable in favour of claimants along with interest @ 6% per annum from the date of filing of the Claim Petition till the date of actual payment. This additional amount will remain invested in a monthly scheme of an Indian Post Office/Nationalised Bank in the joint name of the claimants for a period of twenty years.
13. In above terms, appeal is disposed of.
14. Let record of Claims Tribunal be sent back.
(VIVEK AGARWAL) JUDGE A.Praj.
Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 05-10-2023 18:49:41