Madhya Pradesh High Court
National Insurance Co.Ltd. vs Smt. Kriti Jain on 15 May, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
MISC. APPEAL No. 1391 of 2015
BETWEEN:-
NATIONAL INSURANCE CO.LTD.
THR. ADMINISTRATIVE OFFICER
495 MARHATAL JABALPUR,
MADHYA PRADESH
APPELLANT
(MISS AMRIT RUPRAH-ADVOCATE)
1 SMT. KRITI JAIN S/D/W/Thru:-
LATE SHRI SUBODH JAIN
494 HANUMANTAL JABALPUR
BHADARPURA JABALPUR
MADHYA PRADESH
2 MASTER ARS JAIN S/D/W/Thru:-
SHRI SUBODH JAIN
MIONR THROUGH NATURAL
GUARDINA MOTHER SMT. KRITI
JAIN 494 HANUMANTAL
JABALPUR BHADARPURA
JABALPUR MADHYA PRADESH
3 MASTER SHUBH JAIN
S/D/W/Thru:- SHRI SUBODH JAIN
MIONR THROUGH NATURAL
GUARDINA MOTHER SMT. KRITI
JAIN 494 HANUMANTAL, MADHYA
PRADESH
4 KAILASH CHAND JAIN
S/D/W/Thru:- MULAYAMCHAND
JAIN 494 HANUMANTAL
JABALPUR BHADARPURA
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 20-05-2024
12:40:17
2
JABALPUR MADHYA PRADESH
5 SMT. SHUSHMA JAIN
S/D/W/Thru:- SHRI KAILASH
CHAND JAIN
494 HANUMANTAL JABALPUR
BHADARPURA JABALPUR ,Jabalpur
, MADHYA PRADESH
6 SOURABH JAIN S/D/W/Thru:-
SHRI KALLASH CHAND JAIN
494 HANUMANTAL
BHADARPURA JABALPUR
MADHYA PRADESH
7 SANDEEP JAIN S/D/W/Thru:-
KEWALCHANDRA JAIN
H.NO 113/30 NIWARGANJ P.S
KOTWALI Jabalpur MADHYA
PRADESH
8 VAIBHAV JAIN S/D/W/Thru:-
VIJAY KUMAR JAIN H.NO.414,
MARHATAL JABALPUR MADHYA
PRADESH
.....RESPONDENTS
(NONE)
M.A.NO.2213/2015
1 SMT. KRATI JAIN S/D/W/Thru:- LATE
SUBODH JAIN 494 HANUMAANTAL
JABALPUR 793 BHALDARPURA DISTT.
JABALPUR , Jabalpur , MADHYA PRADESH
2 MASTER ARSH JAIN S/D/W/Thru:- LATE
SUBODH JAIN MINORS THROUGH THEIR
NATURAL GUARDIAN MOTHER I.E. SMT.
KRITI JAIN 494 HANUMAANTAL JABALPUR
793 BHALDARPURA DISTT. JABALPUR ,
Jabalpur , MADHYA PRADESH
3 MASTER SUBH JAIN S/D/W/Thru:- LATE
SUBODH JAIN MINORS THROUGH THEIR
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 20-05-2024
12:40:17
3
NATURAL GUARDIAN MOTHER I.E. SMT.
KRITI JAIN 494 HANUMAANTAL JABALPUR
793 BHALDARPURA DISTT. JABALPUR ,
Jabalpur , MADHYA PRADESH
4 KAILASH CHAND JAIN S/D/W/Thru:- LATE
MULAYAM CHAND JAIN
494 HANUMAANTAL JABALPUR 793
BHALDARPURA DISTT. JABALPUR , Jabalpur ,
MADHYA PRADESH
5 SMT. SUSHMA JAIN S/D/W/Thru:- KAILASH
CHAND JAIN 494 HANUMAANTAL
JABALPUR 793 BHALDARPURA DISTT.
JABALPUR , Jabalpur , MADHYA PRADESH
6 SOUBRAH JAIN S/D/W/Thru:- KAILASH
CHANDJAIN 494 HANUMAANTAL JABALPUR
793 BHALDARPURA DISTT. JABALPUR
Jabalpur , MADHYA PRADESH
APPELLANTS
(SHRI VINIT KUMAR MISHRA-ADVOCATE)
VS
1 SANDEEP JAIN SON OF KEVAL CHAND JAIN
R.O. 113/03 NIWARGANJ THANA, KOTWALI
JABALPUR M.P.
2 VAIBHAV JAIN SON OF LATE VIJAY
KUMAR JAIN HOUSE NO. 414, MADHATAL
JABALPUR M.P.
3. NATIONAL INSURANCE COMPANY
COMPANY LTD. JABALPUR M.P.
RESPONDENTS
(SHRI PRABANSHU SHUKLA-ADVOCATE)
.
RESERVED ON:- 03.04.2024
PRONOUNCED ON :- 15.05.2024
-------------------------------------------------------------------------------------------------------
These appeals having been heard and reserved for orders and on this
day, the court passed the following:
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 20-05-2024
12:40:17
4
ORDER
This order shall govern the disposal of MA No.1391/2015 (National
Insurance Company Limited Vs. Kirti Jain) and MA No.2213/2015 (Kriti Jain Vs.
State of M.P.) arising out of award dated 22.1.2015 passed in MACC NO. 150/2011
and 149/2011 respectively.
2. MA No.1391/2015 has been filed by the appellant National Insurance Co.
Ltd. for setting aside award/exoneration from liability to pay compensation and MA
No. 2213/2015 has been filed by claimants Kriti Jain and others seeking enhancement
of compensation amount.
3. Learned counsel for the appellant Insurance Company (MA No.1391/2015)
submits that in the instant case, accident occurred on 25.5.2009 and deceased expired
on 13.06.2009. FIR has been registered on 11.7.2009. Thus, FIR is delayed by 2
months and for which, no explanation has been furnished. It is also urged that
initially award was passed on 11.5.2012 and against which MA No.2122/2012 was
filed and it was allowed on 24.10.2013 and case was remitted back to the tribunal. It
is also urged that Tribunal has held just on the basis of deposition of Bhavesh Jain
that offending vehicle caused the present accident. Initially Tribunal dismissed the
claim. After remand of the case, tribunal has allowed the claim petition without
recording additional evidence. At the time of the accident, three persons were sitting.
Tribunal has not taken into consideration the deposition of Ankit Jain. Ankit Jain has
not reported the matter immediately after the incident. Hence, Ankit Jain is not a
reliable witness. It is also urged that family members of deceased did not lodge the
report and Bhavesh Jain did not enquire with family members. It is also urged that
deceased used to run a shop and presently, Kriti Jain is running her husband's
business/shop in the name of Arsh Mens Wears. Therefore, it cannot be said that any
substantive loss of income has occurred to claimants. Therefore, on the basis of
income tax filed by the deceased, his income cannot be calculated. Tribunal has
wrongly awarded consortium to each of the appellants and it is contrary to the
judgment passed in the case of National Insurance Company Ltd. Vs. Pranay
Sethi '2017 SCC Online SC 1270.
4. On above grounds, it is also urged that appeal filed by the appellant
Insurance Company be allowed and appeal filed by the claimants be dismissed.
5. Learned counsel for the respondent submits that in the instant case, there
is no delay in lodging the FIR. It is also urged that deceased was running a clothes
shop in the name of Arsh Mens Wear and claimants have also submitted\filed the
income tax return. Therefore, relying upon Smt. Anjali And others Vs. Lokendra
Rathod and others 2022 Live Law SC 1012, it is urged that deceased's income be
assessed in the light of income tax return filed by the claimants. Hence, appeal filed
by Insurance Company be dismissed and claimants appeal be allowed and
compensation be suitably enhanced.
6. I have heard learned counsel for the parties and perused the record of the
case.
7. Perusal of the record of the case reveals that earlier an award was passed on
11.05.2012 and claim petition filed by the claimants was dismissed. Against above
award MA No.2212/2012 was filed by the claimants and vide order dated
24.10.2013, this Court set aside the findings recorded by the Tribunal and remanded
the matter back to the Tribunal to decide the case on the basis of observations made
in that order. After that Tribunal vide award dated 22.1.2015 allowed the claimants
claim petition and awarded the compensation. Further from record of the case, it is
also evident that after remand of the case Dr. Raghvendra Namdeo's deposition has
been recorded by the tribunal and no other evidence has been recorded by the
Tribunal after remand of the case.
8. Thus, it is correct that earlier claimant's claim petition was dismissed and
thereafter, on the basis of same evidence, claim petition has been allowed. With
respect to above, it would be appropriate to reproduce the order passed by this Court
on 24.10.2013 in MA No.2122/2012 whereby the earlier order was set aside and case
was remitted back to the tribunal.
"On perusal of the impugned award, it seems that the learned
Member of the Tribunal has no basic knowledge of deciding the
claim petitions. H has decided the claim petition as if he is deciding
the claim case for the offenc under Section 304a of IPC. It seems
that he does not know the meaning of FIR. The first information
report has been written on prescribed from under section 154
CRPC on 11.7.2009 while the alleged accident took place on
25.5.2009 within the local limits of police station Tendukheda. The
victim was immediately brought to Hospital at Tendukheda and he
was immediately referred to treatment to Jabalpur by given the
intimation to the police by the treating doctor and the police started
investigation immediately on same day on that information.
The act of the doctor of referring the victim was in
accordance with directions given by the Hon'ble Apex Court that
victim be treated without giving any into the formality of lodging
the FIR. Further, the motor vehicle Act is a beneficial legislation
created for compensation the victims who suffered injuries deaths
in the accident for which standards proof is not like which is
required for criminal cases where the liberty of accused is involved.
In the claim case, the Court has to consider the fact that whether
the victim has suffered injury or has died due to accident and then
to assess the amount of compensation. Where it is clearly
established that the victim has died as a result of injuries sustained
in the road accident, no further proof including post mortem only
when the cause of death is not known. Therefore, the learned trial
Court is not justified in rejecting the claim petition filed by the
petitioner, if the claimant does not press any part of claim, his
claim cannot be disposed off in toto. In claim cases, the evidence is
to be assessed on the basis of probabilities. This court in several
cases has directed the trial Courts with regard to appreciation of
evidence in claim cases, which shall not be as strict as required in
the criminal cases.
Therefore, the appeal is allowed & the impugned
award passed by the tribunal is set aside and the matter is
remanded back to the tribunal with the direction to decide the
claim case on the basis of observations made above.
9. Now evidence available on record will be assessed in the light of
observations made by this Court vide order dated 24.10.2013 and well established
principles of law governing assessment of evidence in cases arising out of Motor
Vehicle Accident.
10. So far as question of delay in lodging the FIR and false implication of
offending vehicle is concerned, admittedly accident occurred on 25.5.2009 and FIR
Ex.P/1 has been lodged on 11.7.2009.
11. So far as testimony of applicant witness Ankit @ Monu is concerned, Ankit
@ Monu has deposed in his examination in chief as under:-
eSa vfdr mQZ eksuw tSu firk Lo- Jh lat; tSu mez&22 o"kZ O;olk;&diMsa dk /ka/kk]
fuoklh&tokgjxat [kksok eaMh tcyiqj dk fuEu dFku 'kiFk iwoZd djrk gWaw fd%
1- ;g fd fnukad&25-5-09 dks djhc 'kke 5 cts eSa vius nksLr lqcks/k tSu ds lkFk viuh eksVj
lkbZfdy rkjknsgh ls tcyiqj vk jgk Fkk lkFk esa gh py jgh ,d eksVjlkbZfdy ,e-ih-20 okW;-Mh-2176
ftls lanhi tSu pyk jgk Fkk- tSls gh ge yksx ?kuxkSj rsna w[ksM+k ds ikl igqaps rHkh lkFk esa py jgh eksVj
lkbZfdy ,e-ih-20 okW;-Mh- 2176 ds pkyd vukosnd dz-1 }kjk eksVj lkbZfdy dks rstxfr o ykijokgh
iwoZd pykrs gq;s gekjh eksVjlkbZfdy dks ihNs ls tksjnkj Vddj ekj nh Fkh ftlls esa o esjh
eksVjlkbZfdy esa ihNs lokj lqcks/k tSu dks xaHkhjizd`fr dh pksVsa vkbZ rRi'pkr~ ge yksxksa dks bZykt gsrq
rsna w[ksM+k vLirky ys tk;k x;kA tgka ij pksVks dh xaHkhjrk ns[ksrs gq, ge yksxks dks esMhdy dkWyst
tcyiqj fjQZj fd;k x;k ftlds mijkar ge yksxks ds ifjokj tu bZykt gsrq esVzk gkfLiVy tcyiqj
neksgukdk tcyiqj ys x;sA
2- mDr nq?kZVuk dh lwpuk esjs }kjk Fkkuk rsna w[ksM+k esa dh xbZ ftl ij iqfyl Fkkuk rsanw[ksM+k }kjk
ekeyk iathc) fd;k x;kA
4- eSaus vius nkos ds leFkZu esa fuEu nLrkost is'k fd, gS%& esjs bykt laca/kh fMLpktZ dkMZ iz -ih-
278] nokbZ;ksa ds fcy ,oa ijps iz-ih- 279 ls 281] bl izdj.k ls lacaf/kr nLrkost blh vf/kdj.k esa py
jgs ,e-Ogh-lh- dza- 290 d`fr tSu fo- lanhi tSu esa layXu gSA
izfr ijh{k.k }kjk Jh eukst f'kogjs vf/k- okLrs vuk- dza- 1 o 2
5- ?kVuk fnukad 25-05-09 dh yxHkx ikap lk<+s ikap cts dh gS] ge yksx rkjknsgh ls ykSV jgs FksA
ge yksx tcyiqj ls nksigj 12&1 cts fudys FksA rkjknsgh yxHkx 2%30 cts igqaps FksA tcyiqj ls
rkjknsgh yxHkx 80&90 fdyksehVj gSA ge yksx rkjknsgh tehu ns[kus x;s FksA ?kVuk rkjknsgh vkSj
rsna w[ksM+k ds chp esa ?kVh FkhA ?kVukLFky esa rsna w[ksM+k dh nwjh vankt ls 10 fdyksehVj gksxhA rkjknsgh esa
20&25 fefuV dk dke Fkk ijarq ge yksx rkjknsgh esa Ms<+ nks ?kaVs :ds FksA ge yksx tcyiqj ls rsna w[ksM+k
nks ?kaVs esa igqaps Fks] ogka jksM vPNh gS tc ge tcyiqj fudys Fks rks lanhi ds lkFkn ,d lkFk eksVj
lkbZfdy esa fudys FksA lanhi ds lkFk eqUuhyky xqIrk th cSBs FksA
8- esjh xkM+h dh csd ykbV VwV xkbZ Fkh vkSj eSaus viuh xkM+h dh VwVQwV ds laca/k esa chek daiuh
ls dksbZ nkok izkIr ugha fd;kA ;g lgh gS fd viuh eksVj lkbZfdy dh VwVQwV dk eqvkotk izLrqr okn esa
ugha pkgk gSA ;g dguk xyr gS fd dksbZ ?kVuk ugha gqbZ blfy, eSaus eksVj lkbfdy dh VwVQwV dk
eqvkotk ugha pkgkA
9- ?kVuk ds le; esa vkxs py jgk Fkk vkSj lanhi esjs ihNs FkkA eSa ugha crk ldrk fd ?kVuk LFky
dk uD'kk izdj.k esa is'k gS ;k ughaA eq>s bldh tkudkjh ugha fd ekSdk uD'ks esa esjh xfYr;ksa dk mYys[k
Fkk blfy, is'k ugha fd;kA
10- ;g dguk lgh gS fd eSa Lo;a ?kVuk dh fjiksVZ fy[kkus dHkh ugha x;kA Lor% dgk tc iqfyl
okys esjs ikl vk;s Fks rks mUgsa eSaus ?kVuk dh tkudkjh ns nh FkhA iqfyl okys esjs ikl 20&25 fnu ckn
vk;s FksA tc iqfyl gekjs ?kj vkbZ Fkh ml le; fjiksVZ ds fy, Fkkuk vkus dk dgdj xbZ Fkh fQj yxHkx
15 fnu ckn Fkkus x;k FkkA Fkkus esa fjiksVZ fy[kkus ds ckn fjiksVZ dh dkWih eq>s ugha nh xbZA ;g dguk
xyr gS fd tc eSa ?kVuk ds ckn Fkkus x;k Fkk yxHkx ,d ekg ls T;knk O;rhr gks x;k FkkA ;g dguk
xyr gS fd bl chp eSaus lksp le>dj ?kVuk dk izkjaHk rS;kj dj lanhi tSu dks Qalk fn;kA
izfr ijh{k.k okLrs vkosnd dz- 3 Jh lrh'k pkS/kjh vf/koDrk
13- ;g dguk xyr gS fd lM+d ds chpks&chp nq?kZVuk gqbZ FkhA esjh eksVj lkbfdy esa nq?kZVuk ds
le; esVh eksVj lkbfdy esa lkbM Xykl ugha FkkA ;g dguk xyr gS fd ihNs okys okgu ds pkyd }kjk
gkuZ ctkdj ladsr fn;k FkkA ;g dguk xyr gS fd nq?kZVuk ds ckn eq>s ,oa lqcks/k tSu nksuksa dks vU;
O;fDr;ksa ds }kjk rsna w[ksM+k vLirky ys tk;k x;k Fkk eSa ugha crk ldrk dh oks dkSu O;fDr Fks ;g dguk
xyr gS fd eq>s lkekU; pksVsa FkhA Lor% dgk lj QV x;k Fkk ihV fNyh FkhA ?kVuk ds le; lqcks/k tSu
ds pksV ds dkj.k fngkar gks tkus dh vk'kadk ds laca/k esa eSa dqN ugha dg ldrk Lo;a dgk fd oks csgks'k
FkkA
12. Perusal of cross -examination of applicant witness Ankit on behalf of
owner and driver of offending vehicle reveals that no such suggestion has been given
to witness Ankit that Sandeep was also not coming /going with them on the
motorcycle and that Munnilal Gupta was not with Sandeep and that Sandeep's
motorcycle was not coming from behind the deceased's vehicle. Further, on behalf of
owner and driver of offending vehicle, no such suggestion has been given to Ankit
Jain and neither this fact has been mentioned in the written statement filed by owner
and driver of the offending vehicle that if accident did not occur from offending
vehicle and if Sandeep Jain was not riding the offending vehicle/motorcycle at the
time of accident, then, why applicant witness Ankit Jain has falsely implicated
them/why he is falsely deposing against them. Further, if accident did not occur from
offending vehicle, then, where was offending vehicle and Sandeep Jain at the time of
accident.
13. Perusal of cross examination of Ankit Jain on behalf of insurance company
reveals that on behalf of insurance company also, no such specific suggestions, as
mentioned in the preceding paras, have been given to applicant witness. Further,
perusal of cross examination of Ankit Jain reveals that no such suggestion has been
given to the witness on behalf of owner/driver of offending vehicle as well as
insurance company that the present case/accident did not occur from offending
vehicle and at the time of accident, Ankit could not recognize/see the number of
offending motorcycle.
14. Further, from evidence on record and documents available on record, it
is evident that in the instant case, applicant witness Ankit has also sustained injuries
in the same accident. After accident, deceased remained hospitalized and succumbed
to his injuries. From Ex.P/6, it is evident that Ankit was referred to Jabalpur Medical
College. Thus, in view of injuries and above it would not be possible for Ankit to
lodge the FIR immediately after the incident. Further, from deposition of Dr. Rajesh
and Ex.P/6, it is evident that immediately, after Ankit Jain was admitted in the
hospital, Dr. Raghvendra informed the police vide document Ex.P/6 on 25.5.2009 i.e.
on the date of accident itself. Ex.P/1 reveals that FIR Ex.P/1 has been registered after
enquiry of P/6 by police.
15. Hence, in view of discussion in the forgoing paras, in this Court opinion,
deposition of applicant witness Ankit @ Monu cannot be discarded just on the
ground that immediately after the incident/accident, he did not lodge FIR.
16. With respect to reliability and trustworthiness of applicant witnesses Ankit
Jain, non-applicant witness Bhushan Jain is also an important witness and Bhushan
Jain has been examined by appellant insurance company himself. Non applicant
witness Bhushan Jain has deposed in his examination in chief as under:-
1- eSa fnukad 25-05-09 dks Fkkuk rsna w[ksM+k esa lgk;d mifujh{kd ds in ij
inLFk FkkA mDr fnukad dks gh lkeqnkf;d vLirky rsan[w ksM+k esa ,d fyf[kr rgjhj
bl vk'k; dh izkIr gqbZ Fkh fd lqHkksn tSu firk dSyk'k tSu ,oa vafdr tSu firk
dSyk'k tSu dks ,DlhMsaV ds dkj.k ?kk;y voLFkk esa lh-,l-lh- rsna w[ksM+k ls ftyk
esMhdy dkWyt
s tcyiqj fjQj fd;k x;k gS rc mDr rgjhj izkIr gksus ij eq>s
ds'k Mk;jh tkap gsrq nh xbZ gSA tkap ds nkSjku tcyiqj esMhdy dkWyt
s esa mDr
?kk;yks dh ryk'k fd;k tks ryk'k ij ugha fey ldsA iqu% esMhdy dkWyt
s ,oa
lacaf/kr Fkkus tcyiqj esa Hkh mDr ?kk;yks dh ryk'k dh xbZ tks ryk'k ds nkSjku
vafdr tSu firk lat; tSu fuoklh ykMZxt
a dh tkudkjh izkIr gksus ij laidZ
fd;k x;k tks ?kj ij ugha feyh ifjokjtuksa dks Fkkuk rsna w[ksM+k esa vkus ckor~ ,oa
vius dFku nsus ckor~ crk;k x;k tks fnukad 11-07-09 dks eqrZtjj vafdr tSu
Fkkus ij mifLFkr gq;s ftUgksaus ?kVuk dk fooj.k crk;k ftlds vuqlkj vijk/k dza-
103@09 fnukad 11-07-09 dks /kkjk 279] 337 dk vijk/k iathc) fd;k x;k ,oa
foospuk dh xbZ ,oa foospuk ds nkSjku lqcks/k tSu dks ckEcs fjQj gksuk crk;k Fkk
,oa bykt ds nkSjku [kRe gksuk crk;k Fkk ftlesa /kkjk 304, Hkk-na-fo- dk bQktk
fd;k x;k Fkk ,oa esjs }kjk tIrh] fxj¶rkjh dh dk;Zokgh esjs }kjk iw.kZ dh xbZA
okn pkyku dh dk;Zokgh iw.kZ dj vfHk;ksx i= U;k;ky; esa is'k fd;k x;kA
uksV%& vukosnd dzekad 3 dh vksj ls milatkr vfHk- Jh lrh'k pkSjfl;k us
lk{kh ls ,sls iz'u tks foi{k ds }kjk izfrijh{k.k esa iwNs tkrs gS dks iwNus dh
vuqefr vf/kdj.k ls pkgh xbZA mUgsa lquus ,oa fopkj djus ds mijkar mUgsa lwpd
iz'u iwNus dh vuqefr iznku dh xbZA
2- eq>s tks lh-,l-lh- rsna w[ksM+k ls rgjhj izkIr gqbZ Fkh mlesa ?kk;y O;fDr;ksa
dk iwjk irk ys[k ugha Fkk dsoy mlesa mudk fuokl tcyiqj gksuk ys[k gqvk FkkA
;g dguk xyr gS fd eSa rsna w[ksM+k vLirky ugha x;kA lk{kh dk dguk gS fd eSa
rsna w[ksM+k vLirky x;k Fkk ogka laidZ dj eSaus iwNk Fkk fd budk iwjk ,Mjsl ugha
gS rks fpfdRld us esjs }kjk iwNus ij fd D;k rqeus ?kk;yks dk iwjk irk iwNk Fkk
rks mUgksaus dgk fd ?kk;y O;fDr brus ?kk;y Fks fd mUgksaus iwjk irk ugha crk ik;s
Fks dsoy uke gh crk ik;s FksA ;g lgh gS fd nq?kZVuk ftl okgu ls gksrh gS mls
tIr fd;k tkrk gSA ;g lgh gS fd tks okgu ftl okgu ls nq?kZVuk gksrh gS mls
tIr gksus ds ckn mldk esdsfudy ijh{k.k Hkh fd;k tkrk gSA
Ikzfrijh{k.k okLrs vkosndx.k dh vksj ls vfHk- Jh ;ksxs'k xqIrk }kjk%&
9- ;g dguk lgh gS fd iz-ih- 6 dh vLirky dh rgjhj esa ?kk;yks dk iwjk
irk u gksus ds dkj.k izFke lwpuk esa foyac gqvk gSA ;g dguk lgh gS fd tc eSa
,- ds- tSu ls feyk Fkk rc vafdr tSu byktjr Fkk vkSj ml le; vafdr tSu ds
lj ij pksV FkhA ;g dguk Hkh lgh gS fd vafdr tSu }kjk eq>s bl ckr dh
tkudkjh nh xbZ fd lqcks/k tSu vR;f/kd xaHkhj gksus ds dkj.k viuk bykt djkus
ds fy;s ckEcs vLirky eqEcbZ x;s gq;s gSA
10- iz-ih- 4 dk fxj¶rkjh i=d esjs }kjk cuk;k x;k Fkk ftlds ch ls ch
Hkkx ij esjs gLrk{kj gSA ;g ckr lgh gS fd iz-ih- 4 dh fxj¶rkjh cukrs le;
pkyd lanhi tSu }kjk bl ckr dks Lohdkj fd;k x;k Fkk fd mDr nq?kZVuk esjs
}kjk rst xfr ,oa ykigokgh iwoZd pykdj fd;k x;k FkkA ;g dguk Hkh lgh gS
fd mDr nq?kZVukxzLr okgu ds Lokeh }kjk o pkyd }kjk foospuk ds nkSjku ,oa
foospuk ds ckn esjs dk;Zdky esa dksbZ Hkh ,slk vkosnu izLrqr ugha fd;k x;k fd
esjs okgu ls mDr nq?kZVuk ugha ?kVhA
iqu% ijh{k.k%& dqN ughaA
lk{kh dks i<+dj lquk;k lgh Lohdkj
17. Thus, non applicant insurance company's witness Investigating Officer
Bhushan Jain himself admitted that on account of there being incomplete address of
injured in Ex.P/6, delay has occurred in lodging the FIR. This witness has also
admitted that when he met Ankit Jain, then he was under treatment and he had
injuries on head. Thus, from deposition of non applicant witness Bhushan Jain also,
testimony of applicant witness Ankit Jain stands corroborated in material particulars.
Further, Ex.P/5 charge sheet has been filed against Sandeep Jain.
18. In the instant case, driver and owner of offending vehicle has remained
present and they have filed written statement and have also cross examined the
concerned applicant witnesses. But driver of offending vehicle did not enter into
witness box and did not examine himself as non applicant witness whereas he was
most material witness and no explanation has been furnished for the same. Therefore,
adverse inference may be drawn against the owner and driver of the offending vehicle
that driver of offending vehicle caused the instant accident by riding the offending
vehicle rashly and negligently.
19. Hence, in view of discussion in the forgoing paras and in view of overall
evidence on record, in this Court opinion, evidence of applicant witness Ankit Jain
cannot be discarded solely on the ground that he did not report the mater immediately
after the incident. Hence, in view of the facts and circumstances of the case, principle
of law laid down in the case of Anil and others Vs. New India Assurance
Company Limited and others AIR 2018 SC 612 do not apply to the facts of the
present case.
20. Hence, in view of discussion in the forgoing paras, after examining and
assessing the evidence on record, in this Court's considered opinion, in the present
case, it is clearly established that the instant accident has been caused by driver of the
offending vehicle by riding the vehicle rashly and negligently and involvement of
offending vehicle is also clearly established. Hence, submissions of learned counsel
for the appellant with respect to above, are rejected and findings recorded by the
Tribunal with respect to above are affirmed.
21. So far as compensation is concerned, applicant no. 1 to 5 are wives
/sons/parents of deceased whereas applicant no.6 is brother of deceased. Therefore,
applicant no.6 is not entitled to receive any consortium and only applicant no.1 to 5
are entitled to receive consortium Rs.40,000/- each.
22. From deposition of applicant witness No.1 Kriti Jain, it is evident that
business of clothes in the name of Arsh Mens Wear was run by the deceased, which
is at present closed after death of the deceased. There is nothing on record to show
that there is any partner in the firm/business
23. So far as income of deceased is concerned, primary contention of the
learned counsel for the appellant/claimant is that deceased's income is to be
calculated as per income tax returns Ex.P/275, P/276, P/271 and 277 filed by him.
Therefore, sole question before this Court is whether in the facts and circumstances
of the case, income of the deceased has to be calculated /determined on the basis of
above ITR filed by deceased himself.
24. ITR Ex.P/271 relates to assessment year 2009-2010 and therein deceased's
income is mentioned as Rs.1,47,310/-. Perusal of above ITR reveals that therein a
seal has been affixed but there are no signatures of any person within the seal and in
the column of seal and signature of receiving official a number is mentioned.
Ex.P/275 relates to assessment year 2008-09 and therein gross income of deceased is
mentioned as Rs.1,09,890/- and in E.P/275 also there are no signatures of any person
receiving the ITR and column pertaining to seal and signature of receiving official is
blank. Ex.P/276 is ITR for the assessment year, 2005-2006 and therein income is
mentioned as Rs.57,700/- and therein seal is affixed and there are signature of
receiving officer and similarly, Ex.P-277 is of assessment year 2004-2005 and
therein deceased's income is mentioned as Rs.54,880/- and there are seal and
signature of receiving official.
25. Perusal of deposition of applicant witnesses Staney Xavier (AW/5) and
Ashok Kumar (AW/7) reveal that applicants have examined above witnesses to prove
above ITRs. As per applicant witness Staney Xavier return for the assessment year
2004-05 and 2005-06 are available in the office but record of returns for the
assessment year 2008-2009 and 2009-2010 are not available in his office. This
witness has admitted that no record for the year 2008-09 and 2009-10 is available in
the office, therefore, he cannot say whether deceased filed return for above
assessment years or not ? Staney Xavier (AW/5) is an Income Tax Inspector posted
in Income Tax Department.
26. Thus, from evidence of AW/5 itself only Ex.P/276 (Asessement year 2005-
06) and Ex.P/277 (Assess. Year 2004-05) stand proved and record of ITR Ex.P/271
and Ex.P/275 pertaining to year 2008-09 and 2009-10 is not available in the office.
Therefore, deceased's income cannot be determined on the basis of Ex.P/271 and
Ex.P/275.
27. In Ex.P/276 income of deceased from business is mentioned as Rs.57,705/-
and in Ex.P/277 income of deceased from business is mentioned as Rs.58,880/-. In
the instant case, accident is dated 25.5.2009. Tribunal has determined deceased's
income in para 22 of the impugned award as Rs.54,000/- per annum. Income tax
returns Ex P 276 and P/277 are prior to 3-4 years to the accident and Ex.P/271 and
P/275 are not proved. Therefore, in this Court opinion, Tribunal's findings in para 22
of the impugned award with respect to deceased's income are just and proper and
they are hereby affirmed and no interference is required in the same.
28. Hence, in view of discussion in the forgoing paras, in this Court's opinion,
no ground is made out for interference in the findings recorded by the Tribunal.
29. Therefore, both the appeals (MA No.1391/2015 and MA No.2213/2015)
are dismissed and findings of Tribunal are affirmed.
30. Appeals filed by both the appellants are disposed off accordingly.
(ACHAL KUMAR PALIWAL)
JUDGE
