Punjab-Haryana High Court
Raj Kumari And Ors vs Ashok Kumar And Ors on 4 December, 2023
Neutral Citation No:=2023:PHHC:155993
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FAO-6768-2016
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO-6768-2016
Reserved on:- 07.11.2023
Pronounced on:- 04.12.2023
Raj Kumari and others ...Appellants
Versus
Ashok Kumar and others ...Respondents
CORAM:- HON'BLE MS. JUSTICE AMARJOT BHATTI
Present:- Mr. Omkar Rai, Advocate for the appellants.
Mr. Pradeep Kumar, Advocate for respondent No.3.
*****
AMARJOT BHATTI, J.
1. The appellants/claimants - Raj Kumari, Baby Neelam and
Master Yashvardhan (minor through their mother Raj Kumari being
natural guardian) and Sukhbiro have filed present appeal against impugned
Award dated 31.05.2016 passed by learned Motor Accident Claims
Tribunal, Faridabad vide which the claim petition filed by the
appellants/claimants has been dismissed.
2. The facts of the case are that Raj Kumari the widow along
with her 2 minor daughters being their natural guardian and Kanhiya Lal
father, Sukhbiro mother of late Rajesh had filed claim petition under
Section 166 of Motor Vehicles Act for grant of compensation on account
of his death in a motor vehicular accident. Rajesh was 26 years old, doing
the business of Halwai/Catering and it was alleged that he was earning
Rs.20,000/- per month. On the fateful day of 20.02.2015 at about 4:30
p.m., he was going on his motorcycle No.UP-16-AS-7483 driven by him
on which Sanjay his brother was pillion Rider. When he reached near
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village Maujpur Mor, the offending motorcycle No.HR-29-AH-0192 came
at a high speed in a zigzag manner driven rashly and negligently, hit the
motorcycle of Rajesh. After causing the accident, the driver of offending
motorcycle managed to escape. However, the number of motorcycle was
noted down by one Amar Chand passerby. Sanjay the brother of the
deceased called his uncle Krishan and with his help Rajesh was admitted
in Green Field Hospital, Chhainsa where he remained under treatment and
ultimately succumbed to the injuries on 23.02.2015. On the statement of
Sanjay, FIR No.25 dated 21.02.2015 was registered under Sections 279,
337 of IPC and offence under Section 304-A of IPC was added later on.
During treatment, huge amount was spent on the treatment of Rajesh but
his life could not be saved. The petitioners have lost sole bread winner of
their family. They have claimed compensation to the tune of Rs.80 lacs
along with interest at the rate of 18% per annum from the date of accident
till realization of the amount.
3. Notice of the claim petition was given to the respondents.
The respondents No.1 and 2 filed their joint written reply taking
preliminary objections that the petitioners had no cause of action to file the
claim petition nor they have any locus standi. The claim petition is not
maintainable in the present form. They have not come to the Court with
clean hands. The alleged offending motorcycle has been falsely
implicated in order to get the compensation. On the merits of the case, the
facts are denied. It is prayed that the petitioners may be put to strict proof,
to prove the facts by leading reliable evidence. The manner of accident and
the money spent on treatment were also denied. However, the vehicle was
insured with Universal Sompo General Insurance Company Ltd. The
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respondents No.1 and 2 placed on record the driving licence, registration
certificate and insurance policy of alleged offending motorcycle No.HR-
29-AH-0192. It was prayed that the claim petition filed against them
deserved dismissal.
4. The insurance company also filed its written reply taking
various preliminary objections including the objection that the driver of
alleged offending motorcycle was not holding valid and effective driving
licence at the time of alleged accident. In case the accident is proved on
record, then the driver was driving the said motorcycle in breach of the
terms and conditions of the insurance policy. There is denial of said
accident caused by motorcycle No.HR-29-AH-0192 . A false FIR has
been registered. On merits, the facts are denied for want of knowledge.
The age, monthly income of the deceased were also denied. It was alleged
that the deceased was a casual labourer not earning more than Rs.4000/-
per month. It was prayed that the claim petition filed by the claimants was
false without merits and the insurance company has no liability to pay any
compensation to them.
5. No replication was filed by the petitioners and on the basis of
the pleadings of the parties, following issues were framed by the Tribunal
on 21.08.2015:-
1. Whether Rajesh son of Sh. Kanhiya Lal had died in a motor
vehicular accident, which took place on 20.02.2015 at about
4:30 PM. at Chhainsa Atali road at Village Maujpur Mor,
District Faridabad, within the jurisdiction of Police Station
Chhainsa, Faridabad, due to rash & negligent driving of
vehicle Honda Shine (Motorcycle) bearing registration No.
HR-29-AH-0192, by respondent no. 1? OPP
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2. If issue no. 1 is proved, to what amount of compensation
the petitioners are entitled to and from whom? OPP
3. Whether the insured has violated the terms and conditions
of the insurance policy, or that respondent no. 1 was not
holding a valid and effective driving licence at the time of
alleged accident? OPR2
4. Relief.
6. In order to prove the claim petition, the petitioners/claimants
examined Sanjay (eye witness) as PW1, Raj Kumari as PW2, Devender
Kumar, Record Keeper Gold Field Hospital, Faridabad as PW-3, Nagender
Kumar of concerned Pharmacy as PW-4, Amar Chand as PW-5, Manoj
Kumar as PW-6 and tendered Exhibit P-1 to Exhibit P-16 and closed the
evidence.
7. In order to rebut the evidence of the claimants/petitioners,
respondents examined Devender Kumar, Record Clerk, Gold Field
Hospital as RW-1 and thereafter the evidence of the respondents was
closed by order.
8. After hearing the arguments advanced by learned counsel for
the parties, the claim petition filed by the petitioners/claimants was
dismissed by passing impugned Award dated 31.05.2016, as referred
above. Feeling aggrieved of this Award, the present appeal has been
preferred by appellants/claimants for compensation.
9. I have heard the arguments of learned counsel for the
appellants as well as learned counsel representing the contesting
respondents. The learned counsel for the appellants/claimants argued that
the impugned award dated 31.05.2016 passed by the learned Motor
Accident Claims Tribunal, Faridabad is arbitrary and against the evidence
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available on record. The facts of the case were proved on record by one of
the claimant Raj Kumari as PW-2. She lost her husband Rajesh in a motor
motor vehicular accident which took place on 20.02.2015 and Rajesh
ultimately died on 23.02.2015. The copy of MLR proved on file is Exhibit
P-11 and copy of post-mortem report is Exhibit P-12. The bills regarding
hospital and purchase of medicines are also duly proved on record by
examining Devendra Kumar- PW 3 and Nagender Kumar of concerned
pharmacy as PW-4. The claimants incurred huge medical expenditure for
the treatment of Rajesh but he could not be saved. The claimaints have
suffered great loss on account of untimely death of late Rajesh, who was a
young boy of 26 years of age.
The learned counsel for the claimants further pointed out that
in the case in hand, the accident as well as rash and negligent driving were
duly proved on record. Sanjay one of the eye witness stepped into the
witness box as PW1, who has narrated the manner in which the accident
took place. He filed his affidavit as Exhibit PW1/A wherein he
categorically stated that on 20.02.2015, the deceased along with him were
going from Atali to village Chhainsa on motorcycle No.UP-16-AS-7483.
The deceased was driving motorcycle at a moderate speed on correct side
of the road and when they reached near the turn of village Maujpur, the
offending motorcycle driven by respondent No.1 came at a high speed in
reckless manner and without observing traffic rules, hit their motorcycle as
a result of which both of them fell on the road. Rajesh had suffered
serious injury on his head. He immediately called his uncle for help. After
causing the accident, the respondent No.1 managed to fled away from the
spot. On his statement, FIR No.25 dated 21.02.2015 was registered under
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Section 279/337 of IPC and after the death of Rajesh offence under
Section 304-A of IPC was also added. It is argued that the said FIR was
registered against unknown driver and the number of the offending vehicle
was not mentioned. Sanjay PW 1 clearly stated that he was busy in taking
care of Rajesh and in meantime, the motorcyclist managed to escape from
there. The number of the motorcycle was noted down by a passerby
namely Amar Chand resident of village Macchgar who later on disclosed
the number of the motorcycle and thereafter his supplementary statement
was recorded by the police. The copy of FIR is Exhibit-P1 and copy of
supplementary statement of Sanjay recorded on 28.02.2015 is Exhibit-P2.
It is pointed out that statement of Amar Chand PW5 was also recorded
before the Tribunal who also confirmed the aforesaid facts. The claimants
had also examined Manoj Kumar PW6 who produced the summoned
record of the case file titled "State vs. Ashok Kumar" in the aforesaid FIR
in which chargesheet was framed on 04.05.2015 and at that time, the case
was fixed for prosecution evidence. From the summoned record the
driving license, the registration certificate of the offending vehicle and the
insurance cover note were also produced which are Exhibits P-14 to P-16.
It is argued that the the learned Motor Accident Claims
Tribunal, Faridabad has decided issue No.1 against the claimants on hyper
technical grounds. The claimants led each and every possible evidence
available on record to prove the accident as well as rash and negligent
driving on the part of respondent No.1. Therefore, the findings given by
the learned Motor Accident Claims Tribunal pertaining to issue No.1 are
liable to be set aside. It is further prayed that no compensation has been
awarded in the present case since the issue No.1 was decided against the
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appellants/claimants. It is prayed that the claimants are entitled to receive
compensation after assessing the income of deceased from the evidence
available on record.
10. On the other hand, the learned counsel for the insurance
company raised the issue that the facts of the case and evidence on record
were properly appreciated by the learned Motor Accident Claims Tribunal.
The findings on issue No.1 are based on the evidence available on record.
The FIR was registered against unknown person and after the lapse of
time, the alleged offending motorcycle as well as Ashok Kumar were
falsely implicated in the said accident. The learned counsel for the
insurance company referred to the corss-examination of Sanjay PW-1,
Amar Chand PW-5 which clearly indicates that their conduct was not
normal. Even the presence of Sanjay PW-1 was highly doubtful at the
time of said accident. As per his own version, he did not suffer any injury
in the accident whereas Rajesh suffered serious injury which resulted into
his death. Amar Chand PW-5 admitted that he did not stop to take care of
injured rather he preferred to go to his house. The number of the
offending motorcycle as well as the name of motorcyclist figured for the
first time when supplementary statement of Sanjay was recorded on
28.02.2015. Therefore, all these facts were rightly appreciated by the
learned Motor Accident Claims Tribunal, while deciding issue No.1. The
learned counsel for the insurance company further raised the issue that in
the criminal case No.264/02.01.2015 Ashok Kumar has been acquitted of
the charge framed against him in the aforesaid FIR No.25 dated
21.02.2015 under Sections 279, 337, 304-A of IPC registered at Police
Station Chhainsa vide judgment dated 22.05.2019. Therefore, there is no
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convincing evidence on record to show that the accident had taken place
with the alleged offending motorcycle No.HR-29-AH-0192 driven by
respondent No.1-Ashok Kumar. The findings given by the learned Motor
Accident Claims Tribunal, pertaining to issue No.1 does not require any
interference and consequently the claimants are not entitled to receive any
compensation from the respondents.
11. I have considered the arguments advanced before me and have
also gone through the record carefully. The claim petition filed by the
claimants has been dismissed by the learned Motor Accident Claims
Tribunal, by passing Award dated 31.05.2016 on the basis of findings
given on issue No.1 where it is held that the claimants had failed to prove
the accident as well as rash and negligent driving on the part of respondent
No.1 while driving motorcycle No.HR-29-AH-0192. Feeling aggrieved of
the Award, the present appeal has been filed by the appellants/claimants.
Therefore, firstly we will deal with the issue No.1 as to whether from the
evidence available on record, the accident as well as rash and negligent
driving on the part of respondent No.1 while driving motorcycle No.HR-
29-AH-0192 is proved on record or not. It is matter of record that the FIR
No.25 dated 21.02.2015, under Section 279, 337 and 304-A of IPC
registered at Police Station Chhainsa, District Faridabad has been
registered on the statement of Sanjay PW-1 (brother of the deceased)
which is Exhibit P-1. The said FIR was registered against unknown
vehicle. The supplementary statement of Sanjay PW-1 was later on
recorded on 28.02.2015 where the number of offending vehicle as well as
name of the motorcyclist were revealed. The said supplementary
statement of Sanjay is Exhibit P-2. In order to prove issue No.1, Sanjay
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stepped into the witness box as PW-1 and in his affidavit Exhibit PW-1/A
narrated the manner in which the accident took place. He conceded that
when the accident took place, he started taking care of his injured brother
Rajesh and in the meantime, the motorcyclist, who caused the accident
managed to escape from there. He also stated that in this accident, his
brother received serious injury on his head whereas he did not received
any serious injury. He called his uncle Krishan who came there and
shifted the injured to Green Field Hospital, Chhainsa where the injured
was given treatment, who ultimately died on 23.02.2015. The statement of
Sanjay PW-1 was recorded by the police on 21.02.2015 i.e. on the next day
on the basis of which this FIR was registered. The deposing witness
Sanjay has clearly explained that he was unable to see the driver as well as
the number of the motorcycle when the said accident took place. It is a
common factor that when the accident takes place, the impact of accident
is so huge that it is not possible for a person to note down the number of
the offending vehicle or to see the person who was driving. The person
who meets with an accident, firstly look into his well being and thereafter
he is able to see the condition of other person. On the other hand the
person who causes the accident tries his level best to escape from there.
Therefore, I do not find any falsehood in the statement of Sanjay PW-1
who was present at the time of said accident. Apart from this, the
claimants examined Amar Chand as PW-5 who had noted down the
number of offending motorcycle. He had disclosed the identity of
offending motorcycle to Sanjay PW-1 and thereafter, further investigation
was carried out on the basis of supplementary statement of Sanjay which is
Exhibit P-2. Amar Chand PW-5 is not related to Sanjay or deceased
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Rajesh in any manner. Therefore, there was no reason for Amar Chand to
go out of the way to help the claimants. Sanjay PW-1 and Amar Chand
PW-5 are residents of different villages and different Tehsil but in the
same District Faridabad. In case Amar Chand PW-5 did not prefer to stop
at the place of accident, it cannot be considered adverse to the claim
application filed by the claimants. The claimants further examined Manoj
Kumar, Ahlmad in the Court of Judicial Magistrate First Class, Faridabad
as PW-6 who produced the summoned record in criminal case titled as
"State vs. Ashok Kumar" bearing FIR No.25 dated 21.02.2015 under
Section 279, 337 and 304-A of IPC registered at Police Station Chhainsa,
District Faridabad. The statement of this witness further shows that it was
Ashok Kumar who was challaned in the aforesaid FIR. He was
chargesheeted on 04.05.2015 and the case was fixed for prosecution
evidence when this witness stepped into the witness box on 03.11.2015. It
further shows that the matter was investigated and thereafter, the
respondent No.1 Ashok Kumar was challaned in the said FIR.
The learned counsel for the insurance company has referred to
the downloaded copy of judgment in the aforesaid criminal case in which
Ashok Kumar was acquitted of the charge framed against him vide
judgment dated 22.05.2019. I have also perused the said judgment. It is
not the case that the witnesses did not support their version. The learned
Judicial Magistrate after appreciating the evidence on record concluded
that prosecution had failed to prove the guilt of accused beyond the
shadows of reasonable doubt and accordingly, he was acquitted by giving
him benefit of doubt. It is settled principle that the criteria for proving the
guilt of accused in a criminal case is of higher level and the prosecution is
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required to prove the guilt beyond the shadow of reasonable doubt. On the
other hand, in a civil case the case is decided on the basis of
preponderance of probabilities. The proceedings under the provisions of
Motor Vehicles Act are summary proceedings. As referred above, the
claimants had led each and every possible evidence available with them to
prove the accident as well as rash and negligent driving on the part of
respondent No.1-Ashok Kumar. The testimony of Sanjay PW-1, Amar
Chand PW-5 as well as the presentation of challan against Ashok Kumar
after thorough investigation cannot be brushed aside. The aforesaid
evidence led by the claimants before the learned Motor Accident Claims
Tribunal remained unrebutted. The respondents No.1 and 2 contested the
claim petition. They filed their joint written statement. However, neither
Ashok Kumar (driver) nor Sandeep (owner) of the said offending
motorcycle opted to step into the witness box. Therefore, considering the
aforesaid facts, in my opinion the findings given by the learned Motor
Accident Claims Tribunal, pertaining to issue No.1 are not justified.
Keeping in mind the unrebutted testimony of Sanjay PW-1, Amar Chand
PW-5 coupled with other documents proved on record, in my opinion, the
accident caused by Ashok Kumar-respondent No.1 while driving his
motorcycle No.HR-29-AH-0192 rashly and negligently is duly proved on
record. Therefore, the findings of the learned Motor Accident Claims
Tribunal, pertaining to issue No.1 are accordingly set aside and this issue
is decided in favour of the appellants/claimants and against the
respondents.
12. The other important aspect of the present case is the quantum
of compensation which the claimants are entitled to receive. In the claim
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petition it is alleged that Rajesh the deceased was 26 years old young boy
who was working as a Halwai/Caterer and earning Rs.20,000/- per month.
Raj Kumari one the claimant has stepped into the witness box as PW-2 but
there is no evidence on record to establish the profession of Rajesh or his
income. During corss-examination of Raj Kumari PW-2, she categorically
stated that her husband was a tea seller and she did not have any proof
regarding the income as well as profession of her husband. Therefore,
considering these facts the monthly income of Rajesh claimed by the
claimants is without any justification. Considering the cross-examination
of Raj Kumari PW-2 the deceased Rajesh is considered as a labourer and
his monthly income is assumed as Rs.7,000/- per month. Since, he was 26
years old at the time of accident, therefore, by relying upon the authority
cited in "National Insurance Company Limited versus Pranay Sethi
and Ors.", 2017(4) R.C.R.(Civil) 1009, the 40% increase in income is
taken up, which comes out to be Rs.2,800/-. Therefore, the monthly
income is taken as Rs.9,800/- and annual income is taken as Rs.1,17,600/-.
At the time of filing of claim petition, Raj Kumari, her two minor children
and her in-laws had filed this claim petition, but at the time of filing of this
appeal Raj Kumari (widow), two minor children and Sukhbiro (mother of
the deceased) have filed the present appeal. Therefore, ¼ income is
deducted towards personal expenditure and the annual dependency of the
family comes out to be Rs.88,200/-. By applying the law settled in 2009
(3) RCR (Civil) Page 77 Supreme Court of India, in case titled "Smt.
Sarla Verma and others Vs Delhi Transport Corporation and another",
considering his age as 26 years, the multiplier of 17 is appropriate and
with this multiplier, quantum of compensation comes out to be Rs.
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14,99,400/-. Raj Kumari lost her husband in her youth whereas the
children have also lost their father in their young age and the mother has
also lost her young son. Therefore, considering these facts, the claimants
are granted compensation for loss of consortium/filial consortium to the
tune of Rs.48,400/- each which comes out to be Rs.1,93,600/-. The
claimants are granted Rs.18,150/- towards loss to estate, Rs.18,150/-
towards funeral expenditure, transportation etc. and the total amount of
compensation comes out to be Rs.17,29,300/-. The claimants are further
entitled to receive Rs.43,000/- towards medical expenditure incurred on
the treatment of late Rajesh which is duly proved on record by examining
the relevant witnesses. Thus total amount of compensation comes out to
be Rs.17,72,300/- which the claimants are entitled to receive from the
respondents.
The documents on record clearly show that the offending
motorcycle No.HR-29-AH-0192 was duly insured for the period
08.10.2014 to 07.10.2015 vide insurance cover note Exhibit P-16 whereas
the accident had taken place on 20.02.2015. Therefore, the liability of the
respondents to pay the amount of compensation is joint and several. The
claimants are further entitled to interest @ 7% per annum on the aforesaid
amount of compensation from the date of filing of claim petition till
passing of the Award by the learned Motor Accident Claims Tribunal, and
further interest at the same rate from the date of filing of present appeal till
realization of the amount. The claimants are further awarded litigation
expenditure to the tune of Rs.10,000/- .
Out of the aforesaid amount, appellant No.4-Sukhbiro is
entitled to receive Rs.1,00,000/- whereas the minor children are entitled to
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receive Rs.4,00,000/- each and the remaining amount in favour of Raj
Kumari the widow. The share of minor children be deposited in the shape
of fixed deposit in a Nationalized Bank which they will be entitled to
receive on attaining majority with the prior permission of the learned
Motor Accident Claims Tribunal.
The appeal preferred by the appellants/claimants is
accordingly accepted by setting aside the impugned Award dated
31.05.2016.
The photocopy of record received from the Tribunal be sent
back to the concerned quarter. Pending application(s), if any, also stand
disposed off.
04.12.2023 (AMARJOT BHATTI)
Sunil Devi JUDGE
Whether speaking/reasoned: Yes
Whether reportable: Yes
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