Allahabad High Court
State Of U.P.Through Executive ... vs Smt. Chandrawati on 5 August, 2011
Bench: Devi Prasad Singh, Satish Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
High Court of Judicature at Allahabad
Lucknow Bench Lucknow
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Reserved
A.F.R.
Court No. - 27
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 106 of 2010
Petitioner :- State Of U.P.Through Executive Engineer Pwd A.Nagar
Respondent :- Smt. Chandrawati
Petitioner Counsel :- C.S.C.
Respondent Counsel :- Subhodh Kumar Verma
Hon'ble Devi Prasad Singh,J.
Hon'ble Dr. Satish Chandra,J.
[Delivered by Hon'ble Mr. Justice Devi Prasad Singh]
1.Instant appeal under Section 173 of Motor Vehicles Act, has been preferred by the State of U.P., against the impugned award dated 4.12.2008 passed by the Motor Accident Claims Tribunal/Additional District and Sessions Judge, Ambedkarnagar.
2.On 27.5.2000, the son of the claimant, Chandrawati, wife of Jhinku Prasad, suffered an accident at about 4:00 p.m. Son of the claimant namely, Ramesh Kumar Verma while he was driving Hero Honda No.UP-45-8108 crashed with Truck No. USA-1513. The accident occurred while deceased Ramesh Kumar Verma was coming from Bhiti Block to his residence on Minjhaura Road. After accident, the deceased was admitted in District Hospital, Faizabad from where he was referred to King George Medical College, Lucknow. From the Medical College, he was discharged on 7.7.2000. The deceased Ramesh Kumar Verma died on 21.12.2001. A Claim Petition No.14/2007 was filed in the year 2007, approximately after lapse of seven years from the date of occurrence of the alleged accident which is said to have occurred on 27.5.2000.
3.The Tribunal framed following issues:
1.Whether, on 27.5.2000, at about 4:00 p.m., when the claimant's son Ramesh Kumar Verma on his motorcycle No.U.P.45-8108, coming from Bhiti Block to his residence, suffered with the accident at Chanha Chauraha, towards Minjhaura Road, with the Truck No.USA-1513, because of rash and negligent driving of the vehicle and, whether, the driver of the truck was driving rashly and negligently and hit Ramesh Kumar Verma (deceased) who was on his motorcycle. In consequence thereof, he suffered grievous injuries and during the treatment died?
2.Whether, on the date of occurrence of the accident, the driver of the vehicle was having valid driving license?
3.Whether, the vehicle was injured of the appellant Insurance Company?
4.The relief if any, the appellant is entitled for?
4.In support of her case, the claimant respondent herself appeared as PW-1, PW-2 Shiv Murti Verma and PE-3 Shiv Pratap Singh. In the form of documentary evidence on behalf of the respondent claimant, the copy of First Information Report under Case Crime No.252/2006: State Vs. Sant Bahadur under Section 279, 337, 338, 477 IPC, Police Station Tidauli, copy of chargesheet of said case, and a copy of the judgment of criminal case, copy of judgment of Case No.16/2000, copy of treatments, the disability certificate and other receipts were filed.
5.The Tribunal recorded finding that Shiv Murti Verma and Shiv Pratap Singh are eyewitnesses who proved the accident occurred in the manner alleged by the claimant respondents. It is stated that the accident occurred on 27.5.2000 with Truck No.USA-1513 which belongs to PWD Department. The accident was caused by rash and negligent driving of the truck driver.
6.Relying upon the statement of oral witnesses, and the judgment with regard to other deceased Ram Jiyavan, who died in the said accident the claim petition filed by the dependent of Ram Jiyavan was allowed by the Tribunal and compensation was awarded. The Tribunal further recorded finding that the driver of the vehicle was having driving license. However, the Tribunal held that the vehicle was not insured. Hence, shifted the liability at the shoulder of the appellant.
7.Since no certificate was filed before the Tribunal, the Tribunal assessed that the deceased was aged about 24 years in terms of medical certificate on record. So far as the income is concerned, in absence of any certificate, the Tribunal assessed the notional income of the deceased at the rate of Rs.1500/- per month. Keeping in view the age, the multiplier of 17 was applied. It is further held by the Tribunal that half of the amount would have been spent by the deceased on his parents. Hence deducted half of the amount. While applying the multiplier of 17, the Tribunal assessed the compensation to the extent at Rs.1,27,500/-. After adding loss of rights Rs.5000/- for disassociation with son and Rs.2000/- for funeral and assessed the total compensation of Rs.1,37,500/- payable with the interest of 6%.
8.While assailing the impugned award, the appellant's counsel raised two fold arguments.
9.Firstly, the deceased was discharged from the hospital after due treatment on 7.7.2000 but died on 21.12.2001, almost one and half years after the accident. There is no link evidence that death was because of injuries suffered by the deceased in the accident occurred on 27.5.2000. Second limb of argument is that the delay in filing of appeal after lapse of almost seven years has not reasonably been explained. It creates reasonable doubt that a false case has been cooked up to avail compensation. Submission is that the deceased died because of natural death and has got no co-relation with the accident. Third submission of the learned counsel for the appellant is that no issue was framed with regard to delay and laches which was necessary under Order XIV Rule 3 CPC. Since no issue was framed with regard to delay, it becomes fatal and the Tribunal should not have allowed the claim petition.
10.There appears to be no disputed that the accident occurred on 27.5.2000 and the deceased Ramesh Kumar Verma was discharged from hospital on 7.7.2000 and died on 21.12.2001. Submission of the appellant's counsel is that there appears to be no link evidence to establish that the deceased died because of injuries sustained in the accident which occurred on 27.5.2000.
11.From the perusal of impugned award, it appears that the Presiding Officer of the Tribunal has not dealt with the evidence properly. He has not considered the plenty of evidence which was filed by the claimant during the course of trial. Though, the deceased was discharged from hospital on 7.7.2000 but it appears that he continuously underwent treatment in different hospitals. In the Discharge Slip-cum-Summary Report dated 26.10.2000 prepared by the Indraprasth Apollo Hospital, filed as Paper No.43/8 and 43/9 in the record of the Tribunal, the physical condition of the deceased has been noted as under:
"Name: Ramesh Kumar Age/Sex: 24 Years/Years
I.D. No.: M0053680 I.P. No.: M019416
Date of Admission: 25-10-2000 Date of Discharge: 26-10-2000
Consultant: Dr. R.Prasad Unit: Neuro Surgery
Bed No.: 2330
DIAGNOSIS:-
Traumatic Quadriparesis.
HISTORY:-
On 27.5.2000, patient developed inability to move his all 4 limbs, feeling of having limbs and trunk urinary control, in a RTA, therefore he was admitted in Gandhi Memorial Hospital, received conservative treatment for 4 days and discharge, now he is able to move his upper limbs but not able to more lower limbs, for urinary incontinence. He is receiving intermittent catheterization dialy. He has recovered sensory loss over chest.
Past History - No h/oHTB/TB/DM/DA/Br. Asthma.
ON EXAMINATION:-
Built and nutition poor.
No pallor/cyanosis/icterus/lymphadenopathy.
Oedema (+).
Pulse - 88/min.
BP - 150/70 mm Hg
Temp afebrile
RR - 20/min
CNS - Fully conscious, oriented, following commands.
Pupils B/L NSNR.
Speech (N) gait. Not able to walk.
All cranial nerves intact.
No spinal deformity and tenderness.
Motor system -
Bulk and nutrition - muscle wasting, poor nutrition in all 4 limbs.
Power - R L
UL 4/5 4/5
LL 1/5 0/5
Reflexes - All reflexes are exggerated.
Planter - B/L exensor.
Ankle - (L) ankle clo-- +ve
Knee - ↑↑
Sensory loss below T4 (Mipple level).
Res/S - B/L air empty equal.
CVS - SIS2 (N)
P/A Soft, non tender.
Suprapubic LUMP (+) ve
INVESTIGATIONS:- All reports handed over to the patient.
MRI cervical spine.
CXR cervical spine (AP view Lat)
COURSE IN THE HOSPITAL :-
MRI cervical spine revealed (1) an area of Myelomalacia in the spinal cord, post cord, contusion from C5-6 disc to G body (2) Disc bulge/Hermation with post osteophyles at C6-7 compressingn on the ant thecal SGC (3) fat around G nerve roots in effaced in the canal, Xray C-spine - normal.
ADVICE ON DISCHARGE:-
Tab Neurobion 1 thrice a day x 3 months.
Daily intermittent cathaterization.
Physiotherapy.
Review withDr. R. Prasad in OPD after 3 months with prior appointment at6925858, 6925801 on Ext. No.:1060/1061.
Any pending lab reports could be collected from Sample Collection Reception, Gate No.4 (Ext. No.:2098) Time 9.00 am to 5.00 pm.
DR. R PRASAD
SR. CONSULTANT
DEPT. OF NEURO SURGERY
RP/CM"
12.Thereafter, it appears that the deceased could not recover from the treatment provided by the Indraprasth Apollo Hospital and, therefore, he went to Ahmedabad. After MRI of cervical spine of hospital namely, Gujrat Imaging Centre, contained as Paper No.43/7, of the record of the, Tribunal, has noted physical condition of the deceased as under:
"NAME: RAMESHBHAI M/27 YRS. DATE: 14/05/2001
REF. BY: DR. V.S. HOSPITAL
MRI OF CERVICAL SPINE:
MR imaging of the cervical spine was performed and high resolution T1- and T2-weighted serial sections obtained in the sagittal and axial planes using a Phased-Array surface coil on a 1.0 Tesla scanner with high strength gradients.
The study reveals evidence of focal cord atrophy with hyperintense areas involving cervical spinal cord from C6 to C7 level. It demonstrate hyperintense signal on T2W images and hypointense signal on T1W images.
Fusion of C6 and C7 vertebral bodies otherwise rest of the Vertebral bodies appear normal in size, shape, alignment and signal intensity. Intervertebral disc spaces appear normal. No evidence of disc herniation or compressive elements is seen.
Ligamentum flavum and facet joints appear normal.
IMPRESSION:-
MR findings are suggestive of focal cord atrophy with changes of myelomalacia at C6 to C7 level.
DR. DINESH PATEL DR. MRUGESH DOCTOR DR. HEMANT PATEL DR. TOSHAR DESAI
M.D., D.M.R.E. M.D., D.M.R.E. M.D., DMRE, DNB MD"
13.From the aforesaid two reports of Indrapasth Apollo Hospital and the Gujrat Imaging Centre, there appears to be no doubt that the deceased remained under continuous treatment because of serious spinal ailment sustained during the course of accident and ultimately, died without recovering.
14.In view of the above, the first limb of argument advanced by the learned counsel for the appellant with regard to link evidence, seems to be not correct. Even after discharge from King George Medical College on 7.7.2000, he remained under treatment, running from one hospital to other but could not recover and ultimately died on 21.12.2001.
15.The second limb of argument of the learned counsel for the appellant relates to filing of appeal after inordinate delay. While allowing the claim petition, the Tribunal recorded the finding that in the same incident, one Ram Jiyavan sustained injury and dependants of Ram Jiyavan were granted compensation by the Tribunal. Copy of the award has been filed as Paper No.40-Ga/2, dated 30.1.2006 registered as Motor Accident Claim No.16/2000.
16.A perusal of the judgment and order dated 30.1.2006 reveals that Ram Jiyavan was standing nearby when accident occurred on 27.5.2000 and the Truck of PWD hit the motorcycle of deceased Ramesh Verma. The Truck also hit Ram Jiyavan. In consequence thereof, he suffered grievous injuries and succumbed to it during the course of treatment on 29.5.2000 in King George Medical College, Lucknow. Thus, Ram Jiyavan also sustained injuries and died in King George Medical College, Lucknow on 29.5.2000. The Tribunal awarded compensation to the dependant of Sri Ram Jiyavan to the tune of Rs.1,67,000/-.
17.It appears that claimant respondent being not aware of the statutory rights, could not approach the Tribunal and when facts came to their knowledge, they have preferred the claim petition.
18.Under the Motor Vehicles Act, there is no limitation for preferring a claim petition. The only thing is to be seen is that genuine claim petitions are filed bona fidely, to advance claim under the Motor Vehicles Act.
19.Reiterating the law on the point, Hon'ble Supreme Court in (2003) 7 SCC 713: New India Assurance Co. Ltd. Vs. Padma and another, held as under:
"10. The ratio laid down in Dhannalal's case (supra) applies with full force to the facts of the present case. When the claim petition was filed sub-section (3) of Section 166 had been omitted. Thus, the Tribunal was bound to entertain the claim petition without taking note of the date on which the accident took place. Faced with this situation, Mr. Kapoor submitted that Dhannalal's case does not consider Section 6A of the General Clauses Act and therefore, needs to be reconsidered. We are unable to accept the submission. Section 6A of the General Clauses Act undoubtedly provides that the repeal of a provision will not affect the continuance of the enactment so repealed and in operation at the time of repeal. However, this is subject to "unless a different intention appears". In Dhannalal's case the reason for the deletion of sub-section (3) of Section 166 has been set out. It is noted that the Parliament realized the grave injustice and injury caused to heirs and legal representatives of the victims of accidents if the claim petition was rejected only on ground of limitation. Thus "the different intention" clearly appears and Section 6A of the General Clauses Act would not apply.
XX XX XX
12. The learned counsel for the appellant, next contended that since no period of limitation has been prescribed by the Legislature, Article 137 of the Limitation Act may be invoked, otherwise, according to him, stale claims would be encouraged leading to multiplicity of litigation for non-prescribing the period of limitation. We are unable to countenance with the contention of the appellant for more than one reason. Firstly, such an Act like Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, if otherwise the claim is found genuine. Secondly, it is a self contained Act which prescribes mode of filing the application, procedure to be followed and award to be made. The Parliament, in its wisdom, realised the grave injustice and injury being caused to the heirs and legal representatives of the victims who suffer bodily injuries/die in accidents, by rejecting their claim petitions at the threshold on the ground of limitation, and purposely deleted sub-section (3) of Section 166, which provided the period of limitation for filing the claim petitions and this being the intendment of the Legislature to give effective relief to the victims and the families of the motor accidents untrammeled by the technicalities of the limitation, invoking of Article 137 of the Limitation Act would defeat the intendment of the Legislature."
20.In view of the settled proposition of law and having no statutory bar to prefer claim petition and also keeping in view the fact that the claimant has reasonably explained the delay and shown her bona fide, the claim petition cannot be thrown out to deprive the claimant from her statutory right. The claimant respondent being an illiterate rustic lady residing in rural area, may not be deprived of the compensation awarded by the Tribunal because of delayed filing of claim petition.
21.A Division bench of Uttarakhand in the case reported in 2005 (32) AIC 899: Krishna Devi. Vs. U.P. Federation Corporation, reiterated the aforesaid principle of law and held that claim petition cannot be thrown out only on the ground of limitation.
22.The written statement filed by the appellant's counsel reveals that neither defence has been taken nor pleaded with regard to delayed filing of claim petition or raising doubt with regard to death of the deceased because of injuries sustained in the accident (supra). Submission of the appellant's counsel is that it was the responsibility of the Tribunal to frame proper issues with regard to delayed filing of claim petition in the year 2007 for the accident occurred in the year 2000. The argument advanced by the learned counsel for the appellant, is misconceived for the reason that since there is no statutory limitation with regard to filing of claim petition, it was not necessary to frame issue for the purpose. Secondly, in any case, it was for the appellant to raise objection or make a submission before the Court for framing of issue. Attention has not been invited by the learned counsel for the appellant to material on record that appellant's counsel before the Tribunal had insisted to frame issue.
23.While considering the provisions contained in Order 14 Rule 3 CPC, in a case reported in AIR 1959 SC 31: Moran Mar Basselios Catholicos. Vs. Thukalan Paulo Avira and others, Hon'ble Supreme Court held that issue should be based on pleading of parties. It has been held by the Hon'ble Supreme Court that issue should be framed and decided on the basis of pleading of parties as set out on record. Their Lordships held that it is impossible to permit the plaintiff and respondents to go outside the pleading and set up a new case. The issue could not be permitted to be stretched to cover matters which were not on a reasonable construction within the pleading on which they were founded (Para-34). Accordingly, in absence of pleading, the submission of the learned counsel for the appellant is not sustainable.
24.The aforesaid proposition of law has been reiterated by the Hon'ble Supreme Court in the case reported in AIR 1966 SC 735: Bhagwati Prasad. Vs. Chandramaul, AIR 1968 SC 353: Jagdish Pandey. Vs. The Chancellor, University of Bihar and others.
25.In a case reported in (1988) 1 SCC 383: Bhairab Chandra Nandan. Vs. Ranadhir Chandra Dutta, Hon'ble Supreme Court ruled that even if formerly an issue is not framed but party went to trial and adduced evidence keeping in view the issue in mind and drew attention of court, in that regard, it is not necessary to remand the matter and appellate court may decide the question raised. The objection raised by the appellant with regard to delay is overruled subject to observations made hereinabove.
26.Hon'ble Supreme Court in the case reported in (1999) 3 SCC 522: Sardul Singh. Vs. Pritam Singh and others, held that in a case where issues are framed in absence of pleadings by parties and the parties being conscious of such a suit, went to trial, adduced evidence and were given opportunity to produce evidence or cross-examine the witnesses concerned, parties could not subsequently be permitted to raise an objection as to want of a specific pleading regarding such an issue.
27.In the case reported in (1999) 8 SCC 692: T.H. Musthaffa. Vs. M. P. Varghiese and others, their lordships reiterated the settled principle of law that issues cannot be framed unless pleading contains necessary foundation for raising it.
28.In the present case, there appears to be no foundation with regard to objection raised by the appellant's counsel. The written statement says that on incorrect fact, employees of PWD has been impleaded as respondent and the deceased suffered natural death. Hence argument advanced by the appellant's counsel fails.
29.In view of the above, the appeal is dismissed. The amount deposited in the Court shall be remitted to the Tribunal. In case entire amount has not been deposited, the same shall be deposited before the Tribunal within two months and Tribunal shall release compensation immediately to the claimant respondent in terms of award say, within next one month from the date of deposit.
No costs.
[Justice Dr. Satish Chandra] [Justice Devi Prasad Singh]
Order Date :- 5.8.2011
Rajneesh AR-PS)
[Delivered on 5.8.2011]
