Raiben and Others vs Parasnath Ramavatar Yadav and Another

M.D. Shah, J.—Present appellant - original claimant has preferred this appeal against the judgment and award dated 30.11.2004 passed by the learned M.A.C. Tribunal (Auxi.), Ahmedabad (Rural) in M.A.C.P. No. 478 of 1992 by which the claim petition preferred by the appellant has been dismissed. Accident took place on 07.10.1991 between jeep No. GBZ-9518 and military jeep No. 86-B-37791. In the said accident deceased lost his life and other persons received injuries. Claim petition is filed by the legal heirs of the deceased for getting compensation of Rs. 7,00,000/-. Respondent No. 2 vide Exh. 19 denied allegations and made averments that under the military law procedure, driver of the military jeep was acquitted and so sole accident took place due negligent of the driver of the jeep i.e. deceased. Driver of the military jeep has not filed reply nor appeared before the Tribunal.

It is submitted by learned advocate for the appellant that Tribunal has not properly appreciated oral and documentary evidence on record. Therefore, it is requested to allow the appeal.

It is submitted by learned advocate for the respondent that no error is committed by the Tribunal as applicant/claimant was himself driver of the offending vehicle and so it is requested to dismiss the appeal. It is also submitted that judgment passed by the Tribunal is just and proper and not required to be interfered by this Court and so it is requested to dismiss the appeal.

This Court has gone through the judgment and award dated 30.11.2004 passed by the learned Tribunal together with oral as well as documentary evidence on record.

It is admitted fact that accident took place between jeep and military jeep. Deceased was driving the jeep. Complaint is lodged by Darasathsinh, he specifically narrated in the complaint that deceased himself was driving the vehicle in rash and negligent manner and so accident took place. Unfortunately during the course of proceedings, Darasathsinh expired and so he was not examined before the Tribunal. Only witness before the Tribunal was widow of the deceased who is one of the claimant of the claim petition. She was not eye witness to the incident. Tribunal only relying on written statement filed by respondent - Union of India and relying on complaint held that claimants failed to prove the case and by that committed error. In opinion of this Court, when driver of Union of India (respondent) is joined as party and when he has not filed any reply before Tribunal nor entered in witness box, then adverse interference should be drawn against the driver of the military jeep. No doubt generally, onus is on the claimant to prove the negligence of the driver of the vehicle in the accident, but in this case widow is not eye witness and Darasathsinh who lodged complaint also expired during the pendency of the proceedings. So far as FIR is concerned, it is only substantial piece of evidence. Driver of the military jeep is best person who can throw light on the factum of accident, however, he has not been examined nor he has filed any reply. Considering all this facts, in opinion of this Court, deceased - driver of the jeep is held 60% negligent for the accident and original respondent No. 1 - driver of military jeep is held 40% negligent for the accident and so claimants are entitled to get compensation considering 60% negligent of the deceased. This Court has gone through the decision of Hon�ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, Considering income Rs. 3000/- per month of the deceased and considering prospective income and considering age of the deceased 27 years and relying upon decision in the case of Sarla Verma (supra) applying suitable multiplier and considering 60% negligence of the deceased, the amount would come to Rs. 3,00,000/- under different heads. The appeal is accordingly allowed judgment and award dated 30.11.2004 passed by the learned M.A.C. Tribunal (Auxi.), Ahmedabad (Rural) in M.A.C.P. No. 478 of 1992 is quashed and set aside. Claim petition filed by the claimants is partly allowed. It is held that original claimants are entitled to get compensation of Rs. 3,00,000/- with interest @ 8% per annum on the amount of compensation from the date of filing of the claim petition. It is also held that the appellant-original claimants are entitled to recover the amount of compensation jointly and severally from all the respondents herein. Record and Proceedings, if any, be sent to the concerned Tribunal forthwith.