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Judgment
Lok Pal Singh, J
Present appeal, under Section 173 of Motor Vehicle Act, 1988 has been preferred against the judgment and award dated 14.05.2018 passed by Motor Accident Claim Tribunal/ 3rd A.D. J. District Dehradun in claim petition no. 5 of 2015.
Brief facts, of the case, are that claimant is the wife of the deceased Kashmiri Lal. She preferred claim petition before the learned Tribunal with the averments that on 20.10.2014 that her husband Kashmiri Lal (deceased) was being taken to Delhi in an ambulance bearing registration no. UK07 TA 3407 accompanying his son, namely, Praveen Dobhal and his relative, namely, Santosh Dobhal. The ambulance was allegedly driven by its driver rashly and negligently, as the driver was in hurry to reach Delhi. At about 9:30 a.m, when the ambulance reached near Dwarika Height Building, Meerut-Pratapur bypass, a cruise car bearing registration no. DL3C/AE 5271, coming from opposite side which was being driven by its driver rashly and negligently lost its control and dashed the ambulance after breaking the divider. In accident, Kashmiri Lal, Praveen Dobhal, Santosh Dobhal and driver of ambulance sustained serious injuries. All the injured were taken to Subharti Hospital, Meerut, on the very same day Kashmiri Lal was referred and got admitted in Batra Medical & Research Center, Delhi; in ICU, during treatment he succumbed to his injuries on 23.10.2014. It is alleged that at the time of the accident Kashmiri Lal (deceased) was posted as Senior Security guard in O.N.G.C. and was getting Rs. 95,000/- per month salary. The claimant claimed compensation of Rs. 1,53,20,000/-.
United India Insurance Co.- Insurer of ambulance filed its written statement, denying the averments of the claim petition. It is further stated that alleged accident was occurred due to rash and negligent driving of the driver of the Cruise Car, therefore Insurance Company of ambulance is not liable to pay any compensation. It is further stated that the claim petition is bad for non joinder of necessary party.
Owner of the ambulance has filed its written statement and denied the fact that driver of the ambulance was at fault. He stated that driver of the ambulance was driving the ambulance carefully and it was the driver of the Cruise car who was driving the car rashly and negligently and hit the ambulance which got crushed, due to which all the persons in the ambulance sustained injuries. It is further stated that at the time of the accident ambulance was insured with the United India Insurance Co. and the driver of the ambulance was having valid driving license at that point of time and compensation, if any, is to be paid by the Insurance Company.
Owner as well as driver of cruise car bearing registration no. DL3C/AE 5271 also filed their written statement. They also denied the averments of the claim petition.
Future Generali India Insurance Company ltd.-Insurer of Cruise car filed its written statement and denied the averments of the claim petition. It is stated that driver of the Cruise car was not having valid driving license and driver of the ambulance was solely responsible for the accident, as he was driving the same rashly and negligently. It is further stated that it has a right to defend itself under section 149(2), 170 and 64 of Motor Vehicle Act.
On the basis of the pleadings of the parties, the learned Tribunal formulated the following issues:-
(i) Whether the accident occurred on 20.10.2014 at about 9:30 am., near Dwarika Height Building Partapur Bypass Road Meerut, Uttar Pradesh when deceased Kashmiri Lal was being taken to Delhi from Dehradun in an ambulance bearing registration no. UK07-TA 3407 accompanying Praveen Kumar (son) and Santosh Dobhal (relative) and suddenly the driver of the car bearing registration no. DL3 CAE-5271 who was driving the car rashly and negligently, lost its control and hit the ambulance due to which all the persons in the ambulance sustained serious injuries and during treatment Kashmiri Lal succumbed to his injuries?
(ii) Whether the driver of the offending vehicle was having valid and effective driving license and other valid papers at the time of the accident?
(iii) Whether the petition is bad for non-joinder of parties?
(iv) Whether the claimant is entitled for any compensation? If yes then what amount and from whom?
Claimant produced documentary evidence which includes copy of FIR, registration no. of vehicle no. UK07 TA-3407, insurance policy, fitness certificate, charge sheet, site plan, technical verification of vehicle no. DL3CAE-5271, death certificate of Kashmiri Lal, medical bills issued by Batra Hospital and Medical Research and discharge summary etc. On behalf of the claimant, Smt. Lajja Devi (claimant) was examined as P.W. 1, Santosh Dobhal was examined as P.W.2, Rajan Handa was examined as P.W.3, Dr. Sanjeev Sharma was examined as P.W.4 and Madanlal was examined as P.W.5.
On behalf of United India Insurance Co. Ltd, report in regard to permit of vehicle no. UK07TA-3407, conditions laid down by State Transport Authority, insurance policy of vehicle no. UK07TA-3407, copy of driving license of driver Dharamjeet Singh and other papers have been filed.
The Tribunal recorded its finding on issue no. 1 that P.W.1 Lajja Devi has proved averments of the claim petition that on 20.10.2014, though, ambulance bearing registration no. UK07TA 3407, was driven by its driver rashly and negligently but at about 9:30 a.m., near Dwarika Height Building, Meerut-Pratapur, the driver of the vehicle (car no. DL3CE 5271) who was driving the car rashly and negligently lost its control, after breaking the divider dashed the ambulance and driver of the ambulance sustained serious injuries. While considering the statement of P.W. 2 Santosh Dobhal, the Tribunal also recorded finding that the driver of ambulance and Kashmiri Lal sustained injuries and he was also in the ambulance at that point of time. He stated that ambulance was driven by its driver on its side, however, the cruise car, after breaking the divider had dashed the ambulance and accident was occurred due to rash and negligent driving of the cruise car. The Tribunal has recorded the finding that accident was occurred due to rash and negligent driving of the driver of the cruise car and there was no contributory negligence on the part of the driver of the ambulance, but, while considering in regard to the death of Kashmiri Lal, the Tribunal has recorded the finding that P.W.4 Dr. Sanjeev Sharma, who prepared the death summary report of the deceased did not prove the same legally however, he deposed that Kashmiri Lal died due to the head injuries. Having considered the fact that it has not been proved by the claimant that Kashmiri Lal died due to the injuries sustained by him, decided issue no. 1 against the claimant. However, no such issue was framed by the Tribunal as it was not the case of the respondents that deceased not died due to the head injuries.
On the findings recorded on issue nos. 1 and 2, the Tribunal recorded its finding on issue no. 4 and held that it is not proved on record that Kashmiri Lal died due to head injuries sustained by him in an accident, therefore, Tribunal does not find favour with the claimant for entitlement of compensation, and rejected the claim petition of the claimant by impugned judgment and order dated 14.05.2018.
Heard learned counsel for the parties and perused the entire material available on record.
Learned counsel for the appellant would contend that on the one hand, while deciding issue no.1 the learned Tribunal has recorded its categorical finding that the accident occurred due to rash and negligent driving on the part of the driver of the Cruise car, who lost its control, dashed the ambulance from the opposite side after breaking the divider. Contrary to it, the Tribunal has recorded the finding that it is not proved that, deceased who was said to be taken to Delhi for angiography died due to the injuries sustained by him in the accident. He would further contend that the learned Tribunal failed to consider the statement of Dr. Sanjeev Sharma (panel Doctor, who treated the deceased), who specifically stated in his examination in chief that Kashmiri Lal sustained serious head injuries and died due to said injuries. The examination-in-chief of P.W.4 Dr. Sanjeev Sharma that Kashmiri Lal died due to the head injuries was not cross-examined by the respondents and same remained uncontroverted.
Learned counsel for the appellant would further argue that the learned Tribunal has recorded perverse and contrary finding on issue no. 1. He would further submit that claimant has successfully proved that though Kashmiri Lal was taken to hospital for his angiography by the ambulance, but his death was not as a result of heart failure rather it was due to serious head injuries sustained by him in the accident. In support of his submissions learned counsel for the appellant placed reliance upon the judgment of Hon'ble Apex Court in the case of Mangla Ram Vs. The Oriental Insurance Co. Ltd. & ors 2018 (2) T.A.C. 337 (SC) and emphasize upon the following paragraphs:
"10. The moot question which arises for our consideration in these appeals is about the justness of the decision of the High Court in reversing the finding of fact recorded by the Tribunal on the factum of involvement of Jeep No.RST-4701 in the accident occurred on 10th February, 1990 at about 8.00-8.30 P.M. and also on the factum of negligence of the driver of the jeep causing the accident in question. On the first aspect, the High Court has noted that the Tribunal having discarded the oral evidence adduced by the appellant (claimant) could not have based its finding merely on the basis of the FIR and the charge-sheet filed against the driver of the offending vehicle and also because the mechanical investigation report (Exh.5) merely indicated that on the left side of the offending vehicle a scratch mark was noticed on the mudguard of the left tyre which contradicted the statement of the claimant and the Police Investigation Report much less showing involvement of the vehicle in the accident. As regards the second aspect on the factum of negligence, the High Court noted that the Tribunal did not record any finding about the negligence of the driver of the jeep and the site map (Exh. 2) would indicate that the appellant/claimant himself was negligent in driving the motorcycle in the middle of the road.
As the judgment of the High Court has been assailed in the appeal filed by the appellant (claimant) for enhancement of compensation, including the finding of the Tribunal in discarding the evidence of PW-1, PW-2 and PW- 4 on the factum of involvement of the offending vehicle in the accident and also on the factum of the said vehicle beingdriven rashly and negligently by the driver (respondent No.2), we have been called upon to examine even the correctness of the approach of the Tribunal. We are conscious of the fact that in an appeal under Article 136 of the Constitution, ordinarily this Court will not engage itself in re-appreciation of the evidence as such but can certainly examine the evidence on record to consider the challenge to the findings recorded by Tribunal or the High Court, being perverse or replete with error apparent on the face of the record and being manifestly wrong.
From the evidence which has come on record, the finding recorded by the Tribunal that the appellant while riding his motorcycle on 10th February, 1990 between 8.00 P.M. and 8.30 P.M., met with an accident when a jeep being driven rashly and negligently, struck his motorcycle resulting in falling down and suffering severe injuries on his right leg, which was required to be amputated from above the knee level at MGH Hospital, seems to us to be a possible view. That position is established from the oral evidence of PWs-1, 2 and 4 and the charge sheet and its accompanying documents filed by the police. Even the High Court has broadly agreed with this finding recorded by the Tribunal.
The debatable issue is about the factum of involvement of Jeep No.RST-4701 allegedly driven by respondent No.2 and whether it was driven rashly and negligently as a result of which the accident occurred.
Indeed, the Tribunal did not accept the version of PW-1, PW-2 and PW-4 about the involvement of Jeep No.RST-4701, but has not discarded their version in toto. The evidence of these witnesses to the extent they have consistently stated that when the appellant was riding on his motorcycle bearing No.RJ 19-6636 at the relevant time, going to Basni from Panwara Phanta and when he reached near Siviya Nada, a green jeep coming at a high speed from Salawas side, hit the motorcycle from back side, as a result of which the appellant fell down and suffered severe injuries including to his right leg which was eventually amputated from above the knee level, has not been doubted. Pertinently, besides mentioning the description of the offending vehicle as a "jeep" they have also spoken about its colour (green) and that it was displaying the Congress Party flags and banners on the side of the jeep. In other words, their version limited to having noted the jeep number, has not been accepted. Besides, the Tribunal relied upon the evidence of respondent No.2 Chail Singh (DW-1) and Bhanwar Singh (DW-2) who had stated that the jeep was deployed in the election campaign of Sarpanch of Somdar Village on the Salawas Road and thus denied the involvement of the vehicle in the accident in question. Nevertheless, the Tribunal then adverted to the FIR and the charge-sheet filed in respect of the accident naming respondent No.2 as accused. The Tribunal placed reliance upon the copy of challan (Exh.1), copy of FIR (Exh.32), Site Map (Exhs.3 & 4), Jeep Seizure Report (Exh.5), X-Ray (Exh.6) and Injury Report (Exh.7), to opine that these police records gathered during the investigation of the crime not only confirmed that an accident had occurred but also indicated the involvement of the offending Jeep No.RST-4701, which was driven by respondent No.2 at the relevant time. The Tribunal went on to conclude that there was no reason to disagree with the opinion of the Investigating Agency in that behalf. The charge-sheet was accompanied by the statements of the appellant and the witnesses Rooparam, Thanaram and Pratap Singh. On the basis of the entirety of the evidence, the Tribunal had held that Jeep No.RST-4701 which was driven by respondent No.2 at the relevant time was involved in the accident in question, causing severe injuries to the appellant.
The High Court, however, reversed this finding of fact rendered by the Tribunal essentially on two counts: First, that the Tribunal having discarded the oral evidence about the involvement of Jeep No.RST-4701 in the accident in question, allegedly driven by respondent No.2, could not and ought not to have recorded the finding on the relevant issue against respondent Nos.2 & 3 merely by relying on the documents forming part of the police charge sheet. Second, the jeep seizure report (Exh. 5) indicated that only a scratch on the mudguard of the left tyre of the vehicle was noticed, which contradicted the claim of the appellant about the involvement of the vehicle.
The question is: whether this approach of the High Court can be sustained in law? While dealing with a similar situation, this Court in Bimla Devi (supra) noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the person standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. In paragraphs 11-15, the Court observed thus:
"11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post-mortem report vis-à-vis the averments made in a claim petition.
The deceased was a constable. Death took place near a police station. The post-mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of the constable had taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus-stand and near a police station. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body.
The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate Respondents 2 and 3. The claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the first information report had been lodged in relation to an accident could not have been ignored.
Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.
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 proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
(emphasis supplied)
The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside. Following the enunciation in Bimla Devi's case (supra), this Court in Parmeswari (supra) noted that when filing of the complaint was not disputed, the decision of the Tribunal ought not to have been reversed by the High Court on the ground that nobody came from the office of the SSP to prove the complaint. The Court appreciated the testimony of the eye-witnesses in paragraphs 12 & 13 and observed thus:
"12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised 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......."
Learned counsel for the appellant also placed reliance upon the following judgments of Hon'ble Apex Court: Magma General Insurance Co. Ltd. vs. Nanu Ram decided on 18.09.2018; Vimla Devi & ors., vs. National Insurance Company Ltd., reported in (2019) 2SCC 186.
On the other hand, learned counsel appearing for the respondents would contend that burden lies upon the appellant/claimant to prove the fact that deceased died due to head injuries however, appellant failed to discharge its burden.
To this, learned counsel for the appellant would contend that appellant/claimant has proved the fact that death of Kashmiri Lal occurred due to head injuries sustained by him in the accident. He submits that P.W.2 Santosh Dobhal, who was also traveling in the said ambulance and was also the eye witness to the incident, has specifically stated that the driver of the Cruise car, who was driving it rashly and negligently dashed the ambulance due to which Kashmiri Lal sustained serious injuries and succumbed to the said injuries. This witness was also cross-examined at the hands of the respondents, but nothing comes out in his evidence which shakes his testimony. Learned counsel for the appellant further stated that Dr. Sanjeev Sharma, who treated Kashmiri Lal-deceased, has categorically deposed that cause of death is head injuries, which clearly proves that death was caused due to alleged accident.
On a perusal of the averments of the claim petition, documentary evidence adduced by the claimant as well as oral evidence of P.W. 1 Lajja Devi, P.W.2 Santosh Dobhal, P.W.4 Dr. Sanjeev Sharma and P.W.5 Madanlal, this Court is of the view that claimant has successfully proved the fact that accident occurred due to rash and negligent driving on the part of the driver of the Cruise car and deceased died due to the head injuries sustained by him in the accident but the Tribunal did not consider the evidence of the witnesses and just to defeat the claim of the appellant, Tribunal has very cleverly divested the evidence of the witnesses and meticulously considered the evidence of P.W.4 Dr. Sanjeev Sharma which was not much relevant. The appellant was able to prove the factum of the accident and also the factum of rash and negligent act of the driver in causing the accident. The statements made by the claimant's witnesses that Kashmiri Lal died due to serious head injuries and succumbed to the said injuries, such statements made in examination-in-chief were not cross-examined by the respondents, thus, the statements remained uncontroverted and cannot be disbelieved. Further, respondents did not adduce any evidence to rebut the appellant's evidence. Thus, this Court is of the view that the learned Tribunal has committed illegality in not having considering the documentary evidence as well as statement of P.Ws.
The Hon'ble Apex Court in the case of Chameli Devi & ors. vs. Jivrail mian & ors., in Civil Appeal No. 7004 of 2019 (arising out of Special Leave to Appeal (C) No. 33359 of 2017) decided on 04.09.2019 has held that the strict provisions of Evidence Act does not apply to prove the facts sensu stricto on burden of proof, rather the evidence should be considered on preponderance of probability.
In view of the above, this Court is of the view that finding recorded by the Tribunal on issue no. 1 that it has not been proved that Kashmiri Lal (deceased) died due to head injuries sustained to him in a motor accident is hereby set aside and it is held that Kashmiri Lal (deceased) died due to head injuries sustained by him in road accident. Issue no. 1 is decided accordingly. Having considered the findings recorded on issue no. 1, it is held that the Tribunal has committed illegality in deciding issue no. 4, rejecting claim of the petitioner. Also, findings recorded by the Tribunal on issue no. 4 are hereby set aside.
Now this Court has to consider as to how much compensation the appellant is entitled on account of death of Kashmiri Lal.
The claimant had claimed a total compensation of Rs. 1,53,20,000/- in her claim petition before the Tribunal. She adduced the salary certificate of Late Kashmiri Lal, issued by Deputy Manager (HR) Green Hills, ONGC, Tel Bhawan, Dehradun and to prove the same, Mr. Rajan Handa, Deputy Manager (HR) O.N.G.C. was examined as P.W.4, who in his examination in chief has deposed that deceased Kashmiri Lal was working on the post of Senior Security Guard. Deceased got permanent in the year 1991. P.W. 4 further stated that he was getting Rs. 94,886/- for the month of September 2014. P.W.4 proved the salary slip of the deceased. P.W.4 Mr. Rajan Handa , was also cross examined by the respondents and in his cross-examination he deposed that after all deductions, carry home salary of the deceased was Rs. 44, 677/- per month. The salary slip for the month of September 2014 has also been annexed as paper no. 54C1/6 on record.
Indisputably, deceased was an employee of O.N.G.C. and was working on the post of Senior Security Guard and was getting Rs. 44, 677/- per month (carry home salary after all deductions). Thus, the annual income of the deceased comes to Rs. 5,36,124/-. By applying the principle of Sarla Verma (Sarla Verma vs. Delhi Transport Corporation and Anr 2009 (6) SCC 121) case, after deducting 1/3 towards personal expenses the dependency comes to Rs. 1,78,708/- Therefore, loss of dependency after applying multiplier of 11 comes to Rs. 19,65,788/- (1,78,708 x 11). The appellant is also entitled to claim loss of future prospects at the rate of 15% in view of Pranay Sethi (National Insurance Company vs. Pranay Sethi 2017 (16) SCC 680) case which works out to Rs. 2,94,868/- . Further, the appellant is also entitled for Rs.15,000/- for funeral expenses , Rs. 40,000/- towards consortium and Rs.15,000/- towards loss of estate. In toto, claimant is entitled to get Rs. 23,30,656/.
The compensation and damages is being reassessed as follows:-
Sl. No.
Heads
Calculation (amount in rupess)
1.
Loss of dependency (Rs. 1,78,708 X 11 + 15% of enhancement of salary)
Rs. 22,60,656/-
2.
Loss of estate
Rs. 15,000/-
3.
Loss of consortium
Rs. 40,000/-
4.
Funeral Expenses
Rs. 15,000/-
Total
Rs. 23,30,656/-
In view of the above, the appellant is entitled to claim Rs. 23,30,656/- by way of compensation along with 7% interest. Since, it is proved that accident occurred due to rash and negligent driving by the driver of the Cruise car, which was insured with the Future Generali India Insurance Co. ltd.-respondent no. 6, thus respondent no. 6 and respondent no. 4 are held liable to pay the compensation to the claimant jointly and severally.
In view of the foregoing discussion, the appeal succeeds and is allowed. The impugned order is hereby set aside. Respondent no. 4 and 6 shall directed to pay the amount of compensation i.e. Rs. 23,30,656/- to the claimant along with 7% interest from the date of institution of the claim petition till the actual payment is made to the appellant.
Let statutory amount as well as lower court record be sent back.