Bombay High Court
Smt.Rammurti Wd/O Ramprakash ... vs Rudresh B. Tiwari & Anr on 6 August, 2015
Bench: A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRAT APPEAL NO.336 OF 2003
1. Smt. Rammurti wd/o Ramprakash Mishra
Aged about 49 years.
2. Ku. Manisha d/o Ramprakash Mishra
Aged about 29 years.
3. Mayank s/o Ramprakash Mishra
Aged about 27 years.
4. Manish s/o Ramprakash Mishra
Aged about 27 years.
All residents of 191, Abhyankar Nagar,
Nagpur. ..... Appellants.
:: VERSUS ::
1. Rudresh B. Tiwari
Aged major, R/o Ramdaspeth,
Nagpur.
Through legal heirs :
1-a) Smt. Madhulika wd/o Rudresh Tiwari
Aged about major.
1-b) Mr. Rachit s/o Rudresh Tiwari
Aged about major.
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1-c) Mr. Rohit s/o Rudresh Tiwari
Aged about major.
All residents of Himalaya Vally,
Hindustan Colony, Amravati Road,
Nagpur.
2. The National Insurance Company
Limited, Division No3, Nagpur through
its Divisional Manager, Sajjansingh
Building, Mount Road, Extension,
Sadar, Nagpur.
3. The State of Maharashtra,
through Collector, Nagpur. ..... Respondents.
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Shri S.B. Tiwari, Adv. H/f Shri R.R. Vyas, Counsel for the
Appellants.
Ms. N. Chaubey, counsel for R-1(1) to 1(c).
Shri H.H. Shams, counsel for R-2.
Mrs. A.R. Taiwade, AGP for R-3.
================================================================
CORAM : A. P. BHANGALE, J.
DATE OF RESERVING JUDGMENT : July 10, 2015
DATE OF PRONOUNCING JUDGMENT : August 6, 2015
ORAL JUDGMENT
1. Heard submissions at the Bar. This appeal by legal
representatives of the deceased victim of the Motor vehicle accident
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Ramprakash Mishra questions the legality of the impugned
judgment and order dated passed by the Learned Member of the
Motor Accident Tribunal, Nagpur in the proceedings of the Claim
Petition No.415 of 1995. Under Section 140 of the Motor Vehicles
Act the 'No fault" liability claim was made for compensation in the
sum of Rs 25,000/-. On 19-12-1995 compensation was granted
accordingly together with interest at the rate of 12% p.a. The
insurer Company deposited the sum of Rs 29,750/-. The Claim
Petition No.415 of 1995 was dismissed and the Tribunal directed
the refund of the amount from the claimants to the Insurer.
2. It is case of the appellants that the death of the deceased
Ramprakash Mishra, aged about 45 years of age the business as
stone crusher, had occurred as a result of the Motor vehicle
accident when driver of the offending Truck registration
No.MWY/7567, driving the same rashly and negligently caused the
accident when the deceased Ramprakash was driving his scooter
from Umrer towards Nagpur, the Truck gave him a dash. In the
result Ramprakash fell down and went in coma as he was injured
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severely on his head. The injured was taken to the Central India
Institute of Medical Sciences at Bajaj Nagar, Nagpur and received
medical treatment till he succumbed to the injuries on 02-11-1994.
The Truck was owned by Late Shri Rudresh Tiwary and insured by
the National Insurance Company policy covering the date of the
accident. The case of the appellant remained uncontroverted by
the opponents to the Claim Petition. The Tribunal failed to
appreciate that the appellants could not have been blamed for
mentioning incorrect registration number of the offending motor
vehicle by the Police in the FIR and the Spot Panchnama,
particularly when no evidence was led by the Opponent parties to
the Claim Petition. The medical officer attending the injured in the
Hospital had failed to inform the Police of the accident. The
appellants who were in a state of shock could not inform the Police
about the accident in time. Appellants could not have been blamed
under the circumstances for the clerical mistake or error by the
Police mentioning the Truck number as MWY-4765 by the Police
lapse in not mentioning properly the correct name of the victim and
the registration number of the Truck which caused the accident.
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3. It is submitted on behalf of the appellants that according
to law under Section 140 of the Motor Vehicle Act, they were not
obliged to plead and prove that the death of the victim of the
accident was due to any wrongful act, neglect or default on the
part of the Owner of the offending vehicle. The Tribunal ought not
to have ordered refund of the amount paid or deposited towards 'no
fault' liability.
4. Chapter 10 with Sections 140 to 144 provides for interim
compensation on 'No Fault' Basis. According to this provision Rs.
50,000/- is to be given to the kith and kin of the deceased and Rs.
25,000/- to the grievously injured victim. The compensation under
Section 140 is made payable if prima facie evidence of following is
available;
(i) Accident by the offending vehicle;
(ii) Offending vehicle being insured;
(iii) Death or grievous injuries have been caused.
5. Unlike the main claim petition, negligence is not
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required to be proved under Section 140 of the Act and this interim
compensation is not refundable even if negligence is not proved in
the main claim application. Under Chapter 10 for interim award
insurer is not even permitted to raise any defence relating to
negligence of applicant or permitted under Section 149 of Motor
Vehicle Act. But, if ultimately it is held that insurer is not liable to
pay compensation to the victim then the insurer company can
receive or recover the compensation already paid by it from owner
and/or driver of the offending Motor Vehicle concerned .
6. The legal position stated above indicate clearly that the
Tribunal erred to dismiss the Claim under Section 140 of the Motor
Vehicles Act and to order the refund of the amount of compensation
awarded on the ground of 'no fault' liability. The appeal therefore
must succeed to quash and set aside the impugned Judgment and
order. The amount paid in the sum of Rs 29,750/- paid/ deposited
towards the no-fault liability under Section 140 of the Motor
vehicle Act need not therefore be refunded by the respondent
insurer to the claimants.
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7. Next question is about the final relief in the claim
petition. Learned Advocate pointed the ruling in the case of
Parmeshwari ..vs.. Amirchand reported at (2011)11 SCC 635.
In paragraph Nos.12 and 13 it is observed thus :-
"We are constrained to repeat our observation
that the total approach of the High Court,
unfortunately, was not sensitized enough to
appreciate the plight of the victim. The other so-
called reason in the High Court's order was that
as the claim petition was filed after four months
of the accident, the same is "a device to grab
money from the insurance company". This
finding in the absence of any material is
certainly perverse. The High Court appears to
be not cognizant of the principle that in a road
accident claim, the strict principles of proof in a
criminal case are not attracted. The following
observations of this Court in Bimla Devi and
others vs. Himachal Road Transport
Corporation and others [(2009) 13 SCC 530] are
very pertinent.
In a situation of this nature, the Tribunal has
rightly taken a holistic view of the matter. It
was necessary to be borne in mind that strict
proof of an accident caused by a particular bus
in a particular manner may not be possible to be
done by the claimants. The claimants were
merely to establish their case on the touchstone
of preponderance of probability. The standard of
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proof beyond reasonable doubt could not have
been applied."
8. The Apex Court was thus pleased to allow that appeal as
it found that the High Court had disturbed well-considered decision
of the Tribunal based upon the detailed account of the accident.
9.
Reference is the made on behalf of the appellant to the
ruling in the case of Ravi ..vs.. Badrinarayan & others reported
at (2011) 4 SCC 693 in order to submit that though there was
some delay in lodging the FIR, it could not have been taken as a
main ground for rejecting the claim petition of the appellant. He
has further submitted that though daily diary report of the police
may not be exhibited in the claim petition, the same can be relied
upon by the Tribunal for the purpose of contradicting the contents
of the FIR. According to the learned counsel for the appellant,
when the owner of the vehicle in question had not disputed the
accident the Tribunal had committed an error apparent on the face
of record in dismissing the claim petition.
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10. I have considered the evidence on the record in the light
of citations and the aforesaid well-established principles of
appreciating evidence in the cases of the Motor vehicle accidents.
In my opinion in the facts and circumstances of the case the
Tribunal committed error of law in its failure to properly
appreciate the evidence led on record. Smt. Ramamurthy, widow of
the deceased Ramprakash Mishra deposed in the Tribunal. She
deposed about the Motor vehicle accident occurred on 06-10-1994,
while her Husband Ramprakash also known as Ramkrishna was
proceeding towards Nagpur from Umred Road. When Truck no
MWY-7567 forcibly dashed the Scooter. Ramprakash was removed
to the Hospital at Nagpur. Her husband died on 02-11-1994 during
the course of his medical treatment. She incurred medical expenses
to the tune of Rs1,25,000/- (Bills EX 24). She deposed that Police
Station Kuhi at had provided the Police Papers of their inquiry The
FIR, spot Panchnama, Accident report, P.M. report, Charge sheet
(Exhs.25 to 30). In Claim Petitions in respect of motor vehicle
accidents such evidence need to be disregarded in the larger
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interest of justice. One cannot act stubbornly to insist strict
evidence in the inquiry of an Claim Petition in respect of motor
vehicle accident as if it is a Criminal trial requiring the evidence to
be proved beyond all reasonable doubts. The evidence in the form
of depositions corroborated by the Police investigation material
may be considered as adequate evidence of the motor vehicle
accident caused by offending motor vehicle driven rashly and
negligently by its driver as per Police report notwithstanding
acquittal of driver of criminal charges. The witness deposing in the
accident case need not necessarily be an eyewitness. Close relative
and dependent of the deceased or injured can come forward to
depose as to facts which came to their knowledge. They can assist
the Tribunal to complete the inquiry of a summary nature in such
cases of motor vehicle accident claim. The witness- Widow of the
deceased had specifically denied the suggestion put to her that
Ramprakash fell on his own from the scooter. There was no serious
challenge to the veracity of the version put up by the Widow of the
deceased. Police investigation papers were marked as exhibits and
must be read in support of the deposition. Hence the learned
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Member of the Tribunal fell in error to disbelieve the case of the
Claim applicants praying for the compensation for the death of
Ramprakash Mishra in the motor vehicle accident.
11. The claim applicants were therefore entitled to claim
compensation for the death of Ramprakash Mishra in the Motor
vehicle in question. Next question is quantum of compensation.
Ramprakash was a businessman aged about 45 years old. .The
claimants had claimed modest amount of Rs. 12,00,000/- as total
compensation. The compensation can be awarded thus :-
Annual income of the deceased Ramprakash Rs.10,000/-
x 12 = Rs 1,20,000/-
Deduction towards Self expenses Rs 40,000/- =
Rs.80,000/- per year
x Multiplier applicable 14 = Rs.11,20,000/-
+ add Funeral, expenses, Rs.20,000/-
+ add Loss of Love and affection Rs.30,000/-
+ add Loss of consortium for Widow Rs.30,000/-
= Total Rs.12,00,000/- is payable as just and reasonable
compensation claimed.
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12. I must direct accordingly that the respondents (except
respondent No.3 State Government) are jointly and severally liable
to pay compensation in the sum of Rs.12.00 Lacs inclusive of the no
fault liability together with interest on the unpaid compensation at
the rate of Rs. 7% interest per annum from the date of the claim
application till realization. Impugned judgment and order is
therefore set aside as unsustainable.
13. The appeal is allowed accordingly. The record and
proceedings be sent back to the Tribunal for execution proceedings
of this award.
JUDGE
!! brw (pdirve) !!
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