Smt. Meera Devi And Others vs Gurdeep Singh And Another
2017 Latest Caselaw 3194 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- FIRST APPEAL FROM ORDER No. - 760 of 1991
 
Appellant :- Smt. Meera Devi And Others
 
Respondent :- Gurdeep Singh And Another
 
Counsel for Appellant :- Y.K. Saxena,M. Jain,Rang Nath Pandey
 
Counsel for Respondent :- P.K.Bisaria,Shesh Kumar
 

 
Hon'ble Saumitra Dayal Singh,J.

Upon the matter being heard at length on the last date i.e. 08.08.2017. The below quoted order was passed:

"This appeal has been filed by the claimants against the award of the Motor Accident Claims Tribunal, Agra dated 07.05.1991 in M.A.C. Case No. 132 of 1989.

According to the claim petition that was stated to have been filed on 15.03.1989, Purshottam was driving a horse-cart on 30.12.1988 on the Agra-Gwalior when his horse-cart was hit from behind by truck bearing registration no. CPF-9015 being driven in a rash and negligent manner. As a result of the accident, the horse-cart overturned and the deceased received grievous injuries to which he succumbed on the spot. The said truck was said to be insured by the New India Assurance Co. Ltd.

The insurer filed appearance before the Tribunal and opposed the claim. On merit it relied on alleged FIR lodged by Ram Babu the brother of the deceased Purshottam. While the original record is before this Court, a perusal of the same reveals copy of the FIR is not available. However, learned counsel for the appellant-claimants has supplied a copy of the said document, which copy itself is claimed to be photocopy of the certified copy of the FIR. The same is retained on record.

At the stage of evidence, the claimant Meera Devi was examined as PW-1, who is wife of the deceased Purshottam and also one Gurjan Singh (PW-2) was examined as an eye witness, who was accompanying Purshootam on the horse-cart alongwith his goods. The owner of the offending vehicle Gurdeep Singh also appeared before the Tribunal and stated that the accident had occurred on account of negligence of Purshootam. He claimed to have paid Rs. 10,000/- to Ram Babu, the brother of the deceased. Ram Babu was not examined by either party.

The Tribunal had framed three issues being, whether the accident took place due to rash and negligent driving of the driver of the truck bearing registration no. CPF-9015; whether the claimants accepted any amount from the owner of the truck in full and final payment of compensation; what amount towards compensation, the claimants are entitled.

While deciding the first issue, the Tribunal took into account the testimony of the claimant Meera Devi, who was not an eye witness, Gurjan Singh, who was a witness of fact and also the owner Gurdeep Singh, who claimed himself to be witness of fact.

Gurjan Singh specifically stated that the accident took place due to negligence of the driver of the truck bearing registration no. CPF 9015, inasmuch as he stated that the horse-cart was from behind hit by the truck at the spot where the road was sufficiently wide to allow the two trucks to pass.

On the other hand Gurdeep Singh, owner of the truck relied on the contents of the FIR that was lodged by Ram Babu, brother of the deceased to establish that the accident had been caused due to negligence of Purshottam the deceased and further he relied on that document to establish that the matter had been settled between the parties upon payment of Rs. 10,000/- to Ram Babu.

The Tribunal then appears to have accepted as gospel truth the statement made by the owner of the truck Gurdeep Singh and had concluded the accident had been caused because the mare (drawing the horse-cart) had panicked and that led to the accident. In doing so, the Tribunal relied entirety on the FIR version though it is an admitted case between the parties that the informant Ram Babu was not examined as witness in the proceedings before the Tribunal.

Thus while the first informant Ram Babu did not make any statement before the Tribunal as to the cause of the accident, the statement on oath made by Gurjan Singh, the person who undisputedly was an eye witness of the accident and who had already been subjected to cross-examination, has been completely overlooked by the Tribunal.

In the statement of Gurjan Singh, which is on record, he specifically stated that the offending truck was being driven in a rash and negligent manner at high speed and that the horse-cart was hit from behind at a place where the road was sufficiently wide to allow the truck to pass along side the horse-cart.

Before the Tribunal, other than the testimony of the owner of the truck Gurdeep Singh there was no evidence led to establish that the horse-cart had caused the accident and not the truck.

It is noteworthy that even his testimony, Gurdeep Singh did not state that he was travelling on the offending truck at the time of accident. He only stated that he had paid Rs. 10,000/- to Ram Babu, brother of the deceased. It appears that the Tribunal has presumed that Gurdeep Singh must have been present at the time of accident. Such presumption appears to have arisen on account of payment of Rs. 10,000/-made to Ram Babu.

In absence of any statement being made by Gurdeep Singh that he was present at the time of accident or he was witness to the accident, the presumption drawn by the Tribunal that Gurdeep Singh was a witness of fact is patently erroneous. Gurdeep Singh was clearly not claimed to be a witness of fact though he may have reached the spot after the accident and may have paid Rs. 10,000/- to the brother of the deceased.

It is also true that Ram Babu is not a claimant in the proceedings and according to Gurdeep Singh he was not aware of the fact that he was not paying money to Ram Babu against the claim likely to rise on behalf of the claimants being the wife, children and parents of the deceased.

Thus only evidence that existed before the Tribunal in the shape of the eye witness account was of Gurjan Singh. Reading the statement of Gurjan Singh in entirely it is clear that the accident was caused due to rash and negligent conduct of the driver of the truck bearing registration no. CPF-9015 and therefore, the Tribunal has erred in absolving the owner and the insurer of the liability to compensate the claimants. In view of the fact that the offending vehicle was insured by respondent no.2 and that there was no dispute as to the validity and effectiveness of the licence of its driver, the insurer is liable for compensation.

As to the quantification of compensation on 01.08.2017, the following order has been passed:

"After the matter was heard at some length, it is seen that the finding of the Tribunal that there was no fault of the driver of the truck is based of no evidence by completely misreading the documents which was written by the brother of the deceased to be certified copy of the FIR. In view of the above, it appears that the award based on no fault liability, cannot stand nor can compensation be computed treating it to be a no fault liability.

Being faced with such finding of the Tribunal, learned counsel for the insurer prays for and is allowed three days time to obtain instructions as to what amount in lump-sum that the insurer would be willing to offer to the claimants for settlement of the dispute. In absence of such offer being made and accepted, this Court shall proceed to decide the appeal on merit on the next date fixed.

Put up on 08.08.2017. "

Today, learned counsel for the insurer states that he has instruction that the matter be decided on merits. Thus it has been made clear to the Court that the insurer does not desire to settle the matter on a lump-sum amount.

Then the wife of the deceased i.e. claimant herself had stated before the Tribunal that the deceased was supporting the family with Rs. 75-80 per day. It would result in minimum monthly income of Rs. 2250/- per month.

Considering the fact that the deceased had four children, wife, and father as dependant, it would allow for deduction 1/4th of income towards personal expenses being Rs. 562.50. Thus, the loss of dependency would come to Rs. 1687.50 per month. It will translate to minimum loss of dependency at Rs. 20,250/- per annum.

Considering the age of the deceased as 30 years on the date of accident, multiplier of 17 would have to be applied. The loss of dependency would thus be estimated at Rs. 3,44,250/-.

The Tribunal has only awarded Rs. 15,000/- towards no fault liability. Thus effectively Rs. 3,29, 250/- is payable towards loss of dependency alone. Over and above, the same the claimant would be entitled to non-pecuniary losses, which on a modest estimation would be computed at not less than Rs. 20,750/- which would result figure at Rs. 3,50,000/-.

Since the matter is very old, the accident having been taken place in the year 1988, and the claim petition having been filed in March, 1989, the aforesaid amount would appear an interest, which at the minimum is awarded @ 9%.

At this stage, learned counsel for the appellant has clearly stated that if the insurer were to pay, today, a sum of Rs. 3,00,000/- to the appellants they would be willing to forgo their claim for remaining amount.

Let this matter be put up again on 11.08.2017. In the meanwhile learned counsel for the insurer seeks one last opportunity to take instructions and inform the Court, whether the insurer be willing to settle the matter at Rs. 3,00,000/-. Otherwise the matter shall be decided on merits, as indicated above. "

Heard Sri Y.K.Saxena, learned counsel for the appellants and Sri Ajay Singh, learned counsel for the respondent-insurer.

Today, learned counsel for the insurer has stated that he is not in a position to offer any terms of settlement. However, he submits that at best, the claimants were entitled to compensation on the basis of no fault liability in view of the finding of the Tribunal returned at page 5 of the award being Rs. 25,000/-.

The above submission cannot be accepted. Besides the discussion made in the order that was passed on 08.08.2017, which is now part of this order as well, it is seen the finding at page 5 of the award referred to by learned counsel for the insurer is based on the FIR version alone in which the brother of the deceased is claimed to have stated, the accident was caused due to negligence of the deceased himself.

However, it is undisputed, the brother of the deceased-Ram Babu was never examined by the insurer and he did not appear in the claim proceedings. Moreover, it is settled law that the FIR version cannot be believed against the testimony on oath given before the Tribunal in the claim proceedings.

In this regard reliance is placed on a Division Bench decision of this Court in Parashuram Pal and others Vs. Ram Lakhan Rajawat and another, reported in [2013 (2) AICC 1407], paragraph 6 whereof reads as below;

"Now the question is whether claim petition is sustainable against the offending tractor simply on the basis of the charge-sheet submitted by the police after investigation against its driver? It is not res-integra that in motor accident claim petition charge-sheet filed by the police investigating the accident as a crime is not substantive evidence and compensation cannot be awarded only on the basis. The claimants can succeed only on the basis of substantive evidence adduced by them before the Motor Accident Claims Tribunal. The claimants have not examined any other witness who had informed the police about involvement of tractor of respondent No.1."

Corollary of the above is, an otherwise valid claim, duly proved by the claimants cannot be defeated, merely because there exists an FIR version of events contrary to the claim case, especially when the first informant was neither a claimant nor he was examined in the claim proceedings, as a witness.

On the other hand learned counsel for the appellant has further submitted, in the instant case the accident had been caused by the offending truck that first hit the horse-cart driven by the deceased from behind and then in trying to escape, hit a donkey up the road which also died in that accident and it was thereafter that the villagers gathered and stopped the offending truck. He thus submits, the facts speak for themselves, that the accident had been caused due to the rash and negligent conduct of the driver of the truck.

In view of this and the discussion already made above, it is held the accident was caused due to rash and negligent conduct of the driver of the offending truck bearing registration no. CPF-9015, wherein the deceased suffered fatal injuries and died on the spot.

Accordingly, at discussed in the order dated 08.08.2017, the claimant appellants are entitled to receive Rs. 3,29,250/- by way of enhanced compensation towards loss of dependency and also Rs. 35,750/- towards non-pecuniary losses.

The amount already paid by the respondent-insurer being Rs. 15,000/- shall be reduced from the total amount Rs. 3,65,000/- so awarded. Thus, a sum of Rs. 3,50,000/- together with 9% interest from the date of filing of claim petitioner shall be payable to the claimants. This amount be paid to the claimants through the Tribunal within a period of three months from today.

The appeal is allowed. No order as to costs.

Order Date :- 11.8.2017

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