Smt. Afreen Begum vs Mohd. Aftab Quraishi & Anr.
2015 Latest Caselaw 2761 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R. 	 						  Reserved Judgment
 

 

 

 
Case :- FIRST APPEAL FROM ORDER No. - 734 of 2005
 
Appellant :- Smt. Afreen Begum
 
Respondent :- Mohd. Aftab Quraishi & Anr.
 
Counsel for Appellant :- Shakeel Ahmad Ansari
 
Counsel for Respondent :- Rajiv Mishra,Satyendra Srivastava
 

 
Hon'ble Satyendra Singh Chauhan,J.

Hon'ble Anant Kumar,J.

(Delivered by Hon'ble Anant Kumar, J.)

1. This first appeal from order under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellant against the judgment and award dated 08.07.2005, passed by the Motor Accident Claim Tribunal/Special Judge (E.C. Act), Faizabad in Motor accident Claim Petition No.226 of 2004 (Smt.Afreen Begum Vs. Mohd. Aftab Kuraisi) for enhancement of award.

2. The brief facts of the case are that the claimant had filed a claim petition in respect of death of his son Mohd. Irfan, aged about 7 years on 23.10.2004 at 12:30 p.m. at Shadatganj, Parikrama Road, near Harsh Automobiles. It is alleged in the claim petition that at the time of accident, the deceased was playing by the side of the road who was hit by the Jeep bearing No.UP 42 C/7070 which was being driven by its driver rashly and negligently due to which the deceased died on the spot. It is further stated that Mohd. Irfan was a bright carrier boy and was willing to be a doctor after completing his studies but due to the accident all the hopes of the family have been ruined. After the accident the matter was reported to the Police Station Cantt which was registered as Crime No.540/ 2004, under Sections 279/337/338/304A of I.P.C.

3. After taking the evidence and after perusing the evidence while deciding the issue no.1 the learned Tribunal came to the conclusion that the appellant has failed to prove the rash and negligent driving of the driver of the vehicle in question, as such, under "No Fault Liability" a sum of Rs.50,000/- has been awarded as compensation along with 8% interest. Hence, this appeal has been filed for enhancement of the compensation.

4. We have heard the learned counsel for the parties and perused the record.

5.Learned counsel for the appellant has argued that infact the learned Tribunal has not properly considered the evidence on record and has failed to take into account that the claim petition was filed under Section 166 of the Motor Vehicles At on the basis of fault liability and the learned Tribunal has committed a manifest error in granting compensation under No Fault Liability. It is stated that negligent driving of the vehicle by its driver was well proved on record, so on the basis of fault liability the compensation should have been granted. It is further argued that the Motor Vehicles Act is a beneficial legislation, so lenient view should have been taken by the learned Tribunal. The provisions of Evidence Act are not strictly applicable under the Motor Vehicles Act, the Tribunal has to hold an inquiry.

6.Whereas the learned counsel for the opposite party Insurance Company has stated that for a claim under Section 166 of Motor Vehicles Act it is incumbent upon the claimant to prove the rash and negligence on the part of the driver of the offending vehicle and if the same is not proved, the claimant shall not be entitled for any compensation.

7. To substantiate the argument, a case law reported in 2001 (1) TAC 649 SC Kaushnuma Begum (Smt.) and others Vs. New India Assurance Company Ltd. and others, has been cited wherein the Hon'ble Apex Court has held in paragraph 11 that negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action. It is further held that even apart from Section 140 of the Motor Vehicles Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get a compensation from a Tribunal unless any one of the exceptions are applied. The Tribunal and High Court has therefore gone into an error in divesting the compensation payable to them. In another case law reported in 2012 (3) T.A.C. 353 (S.C.) Surendra Kumar Arora and another Vs. Manoj Bisla (Dr.) and others, the Hon'ble Apex Court has held as under:-

"5. Learned Counsel appearing for the appellant submits that both the Courts have committed a grave error in rejecting the claim petition filed by the parents of the deceased. According to the learned Counsel, though the petition was filed under Section 166 of the Act, the Tribunal ought to have awarded compensation to the parents of the deceased in view of the death of the deceased person who was traveling in the vehicle which was driven by respondent No.1. In aid of the submissions, the learned Counsel has invited our attention to the observations made by this Court in Kaushnuma Begum (Smt.) and others Vs. New India Assurance Co. Ltd. & others, (2001) 1 S.C.C. 9: 2001 (1) T.A.C. 649 (S.C.).

9. Admittedly, the petition filed by the claimants was under Section 166 of the Act and not under Section 163-A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the parents of the deceased to have established that respondent No.1 drew the vehicle in a rash and negligent manner which resulted in the fatal accident. May be, in order to help respondent No.1, the claimants had not taken up that plea before the Tribunal. Therefore, High Court was justified in sustaining the judgment and order passed by the Tribunal. We make it clear that if for any reason, the claimants had filed the petition under Section 163-A of the Act, then the dicta of this Court in the case of Kaushnuma Begum (Smt.) & others (supra) would have come to the assistance of the claimants.

10. In our view the issue that we have raised for our consideration is squarely covered by the decision of this Court in the case of Oriental Insurance Co.Ltd. (supra). In the said decision the Court stated:

"............Therefore, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once, they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But, if they proceed under Section 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victims or his dependents to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle."

8. In another case law, reported in 2007 (2) T.A.C. 417 (S.C.) Oriental Insurance Company Ltd. Vs. Meena Variyal and others, it has been held by the Hon'ble Apex Court that "a third party for whose benefit the Insurance is taken, is therefore entitled to show, when he moves under Section 166 of the Motor Vehicles Act, that the driver was negligent in driving the vehicle resulting in the accident; that the owner was vicariously liable and that the Insurance Company was bound to indemnify the owner and consequently, satisfy the award made."

9. The Hon'ble Apex Court further went to hold, taking reference of three Judges bench decision rendered in the case of Minu B. Mehta and another Vs. Balkrishna Ramchandra Nayan and another, reported in (1997) 2 S.C.R. 886:1977 T.A.C. 320, as under:-

"22. In that decision, this Court considered the question whether in a claim for compensation under the Motor Vehicles Act, 1939, proof of negligence was essential to support a claim for compensation. On the facts in that case, their Lordships found that the appeal was liable to be dismissed subject to certain directions issued therein. But their Lordships, in the light of the fact that the High Court had discussed the law on the question and it was of some importance, felt that it was necessary to state the position in law. Noticing that the liability of the owner of the car to compensate the victim in a car accident due to negligent driving of his servant is based on the law of tort, the Court discussed the scheme of the Act of 1939 and the law on the question. Regarding the view of the High Court that it was not necessary to prove negligence, the Court held :

"The reasoning of the two learned Judges is unacceptable as it is opposed to basic principles of the owner's liability for negligence of his servant and is based on a complete misreading of the provisions of Chapter VIII of the Act. The High Court's zeal for what it considered to be protection of public good has misled it into adopting a course which is nothing short of legislation."

Their Lordships also noticed that proof of negligence remained the lynch pin to recover compensation. Their Lordships concluded by saying,

"We conclude by stating that the view of the learned Judges of the High Court has no support in law and hold that proof of negligence is necessary before the owner or the Insurance Company could be held to be liable for the payment of compensation in a motor accident claim case."

10.The Hon'ble Apex Court further held in paragraph 24 as under:-

"We think that the law laid down in Minu B. Mehta & Anr. v. Balkrishna Ramchandra Nayan & Anr. (supra) was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163-A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub-section (1) of Section 163-A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. Therefore, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle."

11.So from the above case law, it is abundantly clear that in case the claim petition is filed under Section 166 of the Motor Vehicle Act, it is incumbent upon the claimant to prove the rash and negligent driving on behalf of the driver of the offending vehicle. While deciding the issue no.1, the learned Tribunal has taken into account that on behalf of the claimant two witnesses CPW 1 and 2 were produced but both of them have admitted that they had reached on the spot after the accident and had not seen the accident. The learned Tribunal has further held that none of the witnesses to the accident produced by the claimant were present on the spot of the accident. Taking into account the evidence on record the learned Tribunal has held that on record it is not proved that the accident was caused due to the rash and negligent driving of the vehicle by its driver which was an essential feature to be proved before the Tribunal. To our view from the perusal of the record, it is nowhere evident that the Tribunal has taken a wrong view. It is a fact on record that none of the witnesses have been produced to substantiate the issue no.1 and when the negligence on the part of the driver of the offending vehicle was not proved, to our view the learned Tribunal has not committed any error in granting compensation under no fault liability.

12.In view of the above mentioned facts and circumstances, to our view, the findings recorded by the learned Motor Accident Claim Tribunal cannot be faulted with in view of the propounded case laws as stated above. The learned counsel for the appellant has failed to show any such irregularity or negligence in the award which may warrant interference in the impugned award.

13. Appeal is, accordingly, dismissed and the impugned award is upheld.

        (Anant Kumar, J.)                     (Satyendra Singh Chauhan,J.)
 

 

 
Date :-  29th September, 2015
 
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