Jammu & Kashmir High Court
Union Of India (Uoi) And Ors. vs Mst. Aisha And Ors. on 12 December, 2007
Equivalent citations: 2008(1)JKJ533
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. This civil first miscellaneous appeal is directed against the judgment/award dated 23rd of February, 2007 passed by Presiding Officer, Motor Accident Claims Tribunal, Srinagar in a claim petition No. 187/99 titled as Mst. Aisha and Ors. v. Union of India and Ors. whereby and where under an amount of Rs. 5,23,000/- with 6% interest from the date of institution till its final realization came to be awarded in favour of the claimants/respondents against the non-applicants/appellants, hereinafter for short the impugned award.
2. Heard. It is profitable to notice the brief facts of the case herein:
Claimants-respondents filed a claim petition before Motor Accident Claims Tribunal, Srinagar, on 13th December, 1999 with the averments that Mehraj-ud-Din Machloo son of the claimants 1 and 2 and brother of the claimants 3 and 4 was hit by an army vehicle on 8th of July, 1999 at Sampora National High Way, which was being driven by its driver rashly and negligently. He sustained injuries and succumbed to the injuries. FIR No. 42/1999 under Sections 279, 427, 304(A) RPC came to be lodged in P/S Panthachowk. Claimants claimed compensation to the tune of Rs. 20 lacs per the break up given in the claim petition.
3. Non-applicants-appellants contested the claim petition by the medium of objections and following issues came to be framed vide order dated 30th October, 2001:
Whether on 08.07.1999 an army vehicle owned by respondents was driven by its driver rashly and negligently hit the injured one Mehrajudin Machloo at Sampora National High Way who succumbed to injuries and died on the same day? OPP
(a) In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to, from whom and in what proportion? OPP
(b) Whether claim petition is not maintainable and merits dismissal. OPP
(c) Relief.
4. Parties led evidence in support of their case and impugned award came to be passed.
Claimants-respondents have examined Mushtaq Ahmad Sofi, Ghulam Nabi Ganie, Dr. Javeed, Surgeon Specialist, Ghulamjeelani, Investigating Officer and Mst. Aisha and also placed on record certified copies of final report of police and other documents.
Non-applicants-appellants have examined Sobaidar G. Chanderpal and Naib Sobaidar V.V.G Swami.
5. After scanning the evidence, the tribunal passed the impugned award. Appellants feeling aggrieved have challenged the impugned award by the medium of this appeal on the grounds taken in the memo of appeal.
6. Mr. Gowhar, learned Counsel for the appellants, argued that claimants have, failed to prove that the army vehicle was involved in the accident and, also failed to place on record the particulars of the offending vehicle and its driver.
7. Learned Counsel for the claimants-respondents argued that claimants have proved by producing cogent evidence that army vehicle was involved in the accident and was being driven by its driver rashly and negligently....
8. Witnesses Mushtaq Ahmad and Ghulam Nabi have deposed that deceased was riding on a scooter and was hit by an army vehicle. He sustained injuries and succumbed to the injuries. The vehicle was being driven by its driver rashly and negligently. The offending vehicle/army vehicle was coming from Jammu to Srinagar at very fast speed.
9. Investigating Officer, Ghulam Jeelani has deposed that he has conducted the investigation and came to the Conclusion that deceased died in a road accident which was caused by an army vehicle. But he could not locate the particulars of the army vehicle and its driver because he could not contact any army office nor could verify the particulars of the vehicle.
10. Petitioner, Mst. Aisha, mother of the deceased has deposed that deceased was the sole bread earner of the family. They have lost source of income. They are not in a position to maintain themselves.
11. The witnesses examined by the appellants have deposed that no such entry is made on 8th July, 1999 in any register about the accident.
12. Keeping in view the evidence on file and the finding returned by the tribunal, I am of the considered view that claimants/respondents have established by leading cogent evidence that deceased was coming from Srinagar to his house on a scooter which was hit by an army vehicle and sustained injuries and succumbed to the injuries. The driver had driven the offending vehicle rashly and negligently.
13. No doubt claimants-respondents have not given particulars of the vehicle and the driver but one thing is established that all the witnesses have deposed that offending vehicle was an army vehicle.
14. Keeping in view the circumstances which are prevalent in this province from 1988, everyone knows the colour and size of the army vehicle. It is also a hard fact that army vehicles are moving here and there day and night frequently.
15. In the given circumstances, I am of the considered view that petitioners have established by leading evidence that army vehicle has caused the accident.
16. The question that identity of the vehicle and the particulars of the driver have not been established is devoid of any force for the following reasons:
17. It is profitable to reproduce Sub-clause I of Section 165 of the Motor Vehicle Act hereinafter referred to as the Act, herein:
165. Claims Tribunals. (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.
18. This provision of law mandates that the jurisdiction of the claims tribunal can be invoked, if following two conditions are satisfied:
(1) The accident has arisen out of use of the motor vehicle(s); and (2) the accident has resulted in bodily injury to the person or to the property of the person who is making the claim or death of the person whose legal representatives are making the claim(s).
19. While going through the provisions of Section 165 and 166 of the Act, one comes to an inescapable conclusion that the claimant(s) have to prove that accident is outcome of use of motor vehicle.
20. Keeping in view the peculiar circumstances and facts of the case, I am of the considered view that claimants have established rather proved that the accident was outcome of use of army vehicle.
21. The regarding recorded by the learned Tribunal is well founded. It is profitable to reproduce the relevant portion of the impugned award herein:
...It is a matter of common experience that army vehicles occupy roads in the valley whereas the vehicles in various convoys remain plying on the National High Way Every common man is acquainted with the army vehicle on account of their makeup, shape and size. On the other hand the mere fact that the accident involving the army vehicle is not mentioned in the daily occurrence book maintained by the provost unit is not ipso facto the proof of the fact that no occurrence involving the army vehicle has taken place as at times the army driver in order to escape disciplinary action are likely to pass over the matter....
22. The aim and object of awarding compensation is a social one and it is the duty of the tribunals to achieve it as early as possible without succumbing to the technicalities and niceties. Apex Court in a case titled as NKV Bros. (P) Ltd. v. M. Kammni Arnmal and Ors. reported in 1980 SC 1354 laid down the same principle. It is profitable to reproduce relevant portion of para-3 of the said judgment herein:
3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic may be;
23. Keeping in view the mandate of Section 165 and 166 of the Motor Vehicles Act and the object of awarding compensation, I am of the considered view that driver is not a necessary party but a proper party. The claim petition can be filed and determined without arraying the driver as a party.
24. The identity of the vehicle is known for the reasons that claimants have proved by leading sufficient evidence that the owner of the vehicle is Army-Union of India.
25. High Court of Karnataka in case titled Patel Roadways and Anr. v. Manish Chhotalal Thakkar and Ors. , has held as under:
23. But, we do not find any support in Biyabi's case, for appellant's contention that in the absence of driver as a party, a claim petition is liable to be dismissed as not maintainable or that no pending proceedings can go on, unless and until the driver is impleaded as a party. There is no such proposition in the said decision. It should be noticed that nowhere in Biyabi this Court has held that a claim petition is not maintainable if the driver is not impleaded as party. All that the decision lays down is that no finding adverse to the driver can be recorded unless the driver is a party. It is, however, not possible to read more into the said decision or hold that in the absence of the driver, claim petition should be rejected. In fact in Biyabi, this Court did not dismiss the claim petition on the ground that driver was not a party. On the other hand, We find that on the facts and circumstances, as K.S.R.T.C. vehicles did not have insurance cover and as K.S.R.T.C. proposed to initiate action against erring drivers for negligence on the basis of finding of negligence recorded by the Tribunal, this Court made it clear that no adverse finding can be given nor action be taken against its driver by K.S.R.T.C. for negligence unless the driver was a party to the claim proceedings; and, therefore, the matter was remitted to the Tribunal to serve a notice on the driver and then dispose of the matter. The decision in Biyabi is not, therefore, an authority for the proposition that no claim petition against the owner of a vehicle is maintainable without impleading the driver. Whether driver is to be impleaded or not is left to the discretion of the claimant. While there can be no doubt that impleading a driver will be appropriate, as he is a proper party, it cannot be said that he is a necessary party in a claim against the owner and insurer alone. Any finding of negligence of driver, recorded in a petition against the owner, or in a petition against the owner and insurer, without impleading driver, cannot be held to be an 'adverse' finding against the driver nor can it lead to any civil consequences against the driver. Such finding will be only for the purpose of fastening liability on the owner and not to fasten any liability on the driver. However, if the driver is impleaded and notice is issued to him, then civil consequences like making him personally liable will follow on recording a finding of negligence. In the circumstances, the contention that claim petition is not maintainable in the absence of the driver of the car is liable to be rejected.
26. Having glance of the above discussion, I am of the considered view that tribunal has rightly decided the issue No. 1.
27. I am of the considered view that tribunal has fallen in error while applying the multiplier. The multiplier was to be applied while keeping in view the age of the deceased and of the parents-claimants 1 and 2 respondents 1 and 2. Claimants in the claim petition have disclosed their age as 43 and 40 years respectively. Keeping in view their age and the schedule-II appended to the Motor Vehicles Act, read with the recent judgments of the Apex Court, multiplier 14 is applicable.
28. The petitioners/claimants have proved that monthly income of the deceased was not less than Rs. 7,500/-. Two third was to be deducted and loss of dependency to the parents was Rs. 2500/-. Thus claimants 1 and 2 parents have lost source of dependency to the tune of Rs. 2500/- per month. Accordingly, the finding returned is modified as indicated above.
Issue No. 3:
29. Non-applicants have failed to prove issue No. 3.Thus finding returned by the tribunal needs no interference.
30. Accordingly, this appeal is partly allowed and impugned award is modified and it is hereby held that claimants-respondents 1 and 2 are entitled to Rs. 2500 x 12 x 14 = 4,20,000/- including the interim relief, if any paid, with 6% interest from the date of institution of the claim petition till its final realization.
31. Appeal disposed of. Send down the record along with a copy of this judgment.