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Judgment
Puneet Gupta, J
The claim petition filed by the respondent Nos. 1 to 4 herein stands decided by the learned Motor Accidents Claims Tribunal, Jammu vide Award dated 30.08.2012 and which stands impugned in the present appeal filed by the Insurance Company.
The Award passed by the Tribunal is challenged in the appeal on the ground that the accident in question was as a result of rash and negligent driving of the vehicle driven by respondent No.9 only (herein Vijay Kumar) is not proved though held to be so by the Tribunal. The accident itself is under cloud as per the appellant as the victim-Suraj Parkash Kudyar, who is stated to have been injured, was not taken to the Government Hospital which was near the place of accident i.e. Main Stop Gandhi Nagar, Jammu but to ASCOM Hospital which is at a quite distance from the place of occurrence. The cause of death recorded in the medical certificate is cardiac arrest and there is no mention in the certificate of the accident being cause of death. The FIR was lodged on the next day of the alleged occurrence by Ashwani Kumar employee in the clinic doctor of Rattan Kudyar who is brother of deceased though he does not cite himself as the victim in the occurrence. The award is also challenged on the ground that the driver of the so called offending vehicle was not holding licence at the time of accident. The Tribunal has otherwise awarded excess compensation in favour of the petitioners. As per law as it has awarded the amount for those heads in which evidence has not been brought on record by the petitioners.
The respondents-claimants No.1 to 4 in the appeal have appeared to contest the appeal. Rest of the respondents have not appeared despite service and have been set ex-parte.
The original record of the Tribunal is before of the Court.
Mr. Vishnu Gupta, learned counsel appearing for the Insurance Company has argued as per the grounds taken in the appeal for setting aside the award passed by the Tribunal.
The Issues framed by the Tribunal read as under:-
“1. Whether an accident occurred on 25.10.2009 near the clinic of Dr. S.K. Gupta, Last Morh Gandhi Nagar, Jammu by the rash and negligent driving of offending vehicle No.JK02AB-1852 by its driver respondent No.3, as a result of which deceased Suraj Prakash Kudyar suffered injuries? OPP
If issue No.1 is proved in affirmative, whether petitioners are entitled to the compensation, if so to what amount and from whom? OPP
Whether driver of the offending vehicle was not holding a valid and effective driving license and whether there was violation of terms and conditions of policy of insurance? If so to what effect? OPP
Relief.”
The issue No.1 was required to be proved by the petitioners and pertains to the rash and negligent driving of the driver of the so called vehicle (auto-rickshaw) bearing No. JK02AE-1852. As per the claim petition filed by the petitioners, Suraj Parkash Kudyar was on his way from Gandhi Nagar towards last morh Gandhi Nagar on motorcycle bearing No. JK02B-4321 and when he was near the clinic of Dr. S.K. Gupta at main stop Gandhi Nagar his scooter was hit by vehicle (auto rickshaw) bearing No. JK02AE-1852 which was being driven by respondent No.3. The rash and negligent driving by the auto rickshaw driver resulted into grievous injuries to said Suraj Parkash which ultimately led to his death. The Insurance Company only defended the matter whereas the owner and driver of auto rickshaw did not. The owner of the vehicle had died during the pendency of claim and his legal heirs were substituted.
PW-Ajay Kumar in his statement before the Tribunal has stated that on 25.10.2010 at 11:50 am he was waiting for bus near last morh Gandhi Nagar when Suraj Parkash came on his scooter bearing No. JK02B-4321 from Satwari side and when was about to enter last morh Gandhi Nagar an auto rickshaw bearing No. JK02AE-1852 hit the scooter of the victim. The auto rickshaw was being driven by Vijay Kumar at high speed. The deceased fell down from his scooter and landed upon the divider and suffered head injury and taken to the hospital in an auto rickshaw. The negligence of driver of auto rickshaw resulted into accident. He also recorded during his cross examination that the deceased was taking a turn towards Gandhi Nagar at the time of accident. No traffic personal was present near place of occurrence and that his statement was recorded by the Police. The above mentioned witness is the only evidence that is brought on record by the petitioner qua the accident in which the victim is alleged to have later on died.
The learned counsel for the appellant has taken pains to take the Court through the evidence brought on record in order to impress upon the Court that the accident as stated to have happened in the manner reflected by the petitioners has not happened in that manner. The argument of counsel for the appellant is that had any accident taken place at the site mentioned in the petition, the cognizance of the same would have been taken by the police immediately as the place of occurrence is national highway and is manned by traffic police and further that the Police Station is also nearby the place of alleged occurrence. The victim was taken to Batra Hospital which is at distance of few kilometers from the place of occurrence and not to nearby the Hospital which is located near the place of occurrence.
Mr. R. K. Jain, learned senior counsel appearing for the claimants-respondents, submits that the plea raised in the appeal qua the accident by the appellant is without any basis. What has happened on the spot could be explained by the witness only and none else. In case this Court finds the testimony of the eye witness as reliable and probable one then the Court has no reason to rely upon the argument raised by the appellant herein. The Court is of the view that the presence of any police personnel or personnel from traffic police at the time of occurrence is not necessary on the spot which is National Highway. The Court cannot presume that the police personnel had to be essentially present only for the reason that the occurrence had taken place on National Highway and may be even busy place. The victim had to be necessarily taken nearby the Hospital where the occurrence took place is the plea of the appellant which requires only rejection. The persons who may have shifted the victim to the Hospital exercised the discretion to take the victim to a Hospital though at some distance from the place of occurrence and not to a nearby Hospital and why this discretion was exercised cannot be commented upon. It is not unusual that the patient is not taken to a nearby Hospital or Clinic but to a Hospital or Clinic which may be at some distance from place of occurrence as the person shifting the injured has confidence in a Hospital where the patient is taken for treatment. The Court is not to read in the mind of the taker of the victim or the victim himself as to why the nearby Hospital or Clinic was not chosen which is comparatively near to the place of occurrence than the one which may be at some distance from the place of occurrence. The plea raised on the aforesaid account by the appellant is not sufficient to disbelieve the case of the petitioners.
The learned counsel for the appellant also submits that the FIR was not lodged on the day of occurrence because the occurrence never happened. The alleged accident was reported on the next day by one Ashwani Sharma who did not even reveal himself as eye witness to the accident otherwise. It may be relevant to mention herein that as per the record the challan was produced by the police against the driver of the auto rickshaw bearing No. JK02AE-1852 for commission of offences under Section 279/304-A RPC. The FIR is not sine qua non nor the investigation carried out in the FIR for proving the rash and negligent act of the driver. The probabilities are required to be seen while deciding the aforesaid aspect in a case filed under the Motor Vehicles Act.
In 2023 Live Law (SC) 531, the Hon’ble Apex Court while dealing with a case under the Motor Vehicles Act held that preponderance of possibilities is required to be seen. The case cannot be thrown out on the basis of investigation carried in criminal case.
In (2018) 12 SCC 15, the Hon’ble Apex Court did not agree with the findings of the High Court which were based purely on the ground that the FIR which was lodged on the complaint of the appellant contained a version which was at variance with the evidence which emerged before the Tribunal.
Last but not the least the argument of the counsel for the appellant that the reporter of the incident to the police, namely, Ashwani Kumar has not appeared in the witness box to prove the accident. The said Ashwani Kumar is not witness to the occurrence and yet has filed the FIR which bears No. 302/09 registered with Police Station, Gandhi Nagar, Jammu in offences under Section 279/337 RPC. The absence of said persons from the witness box before the Tribunal is not fatal for the case of the petitioners-claimants.
The Court has gone through the findings of the learned Tribunal and does not find any fault on the findings given on the issue. The court independently also has discussed the issue and is of the opinion that the arguments raised by the counsel for the appellant does not hold good and, therefore, stands rejected. The issue pertaining to rash and negligent driving of the vehicle by the respondent-driver stands decided in favour of the petitioners-claimants and against the respondents.
The learned counsel for the appellant has also argued that the Tribunal has erred in recording that the accident has infact resulted into the death of the deceased-Suraj Parkash. The counsel has submitted that the documentary evidence on record does show only that the deceased has died due to cardiac arrest. The tribunal has taken care of this argument of the appellant and has held that the evidence brought on record shows that the accident had resulted into the death of the deceased. The cardiac arrest is mentioned to be the reason for the death of the victim. The victim had suffered injuries due to the accident caused by the driver of auto rickshaw has been proved. The victim remained admitted in the hospital till he died and the same is proved from the medical certificate on record. The certificate issued by the Hospital reveals that the victim was admitted on 25.10.2009 and died on 29.10.2009 in the ASCOM Hospital, Sidhra Jammu. The immediate cause may be cardiac arrest but the same could be a result of the grievous injury on the body including the head of the deceased cannot be ruled out. The very fact that the victim also remained admitted in the Hospital after the occurrence till his death cannot be ignored. The issue is rightly decided by the Tribunal in favour of the claimants.
Issue No.2 : The petitioners-claimants have been granted compensation to the tune of Rs.25,84,000/- by the Tribunal. The appellant has submitted that in any case the claimants-petitioners before the Tribunal are not entitled to this much amount as the Tribunal has wrongly decided the dependency factor and the medical expenses to which the petitioners have been held entitled to. The Tribunal has also wrongly held the income of the deceased as Rs.20000 and has also wrongly assessed the future prospects. Learned senior counsel for the claimants has, however, submitted that in fact petitioners had been awarded less amount by the Tribunal while assessing compensation.
The Tribunal has awarded the compensation amount under various heads. The Tribunal has taken care of the evidence that has been produced by the petitioners regarding the entitlement of the compensation. The Tribunal has recorded after going through the evidence the monthly income of the deceased as Rs.20,000/-. The deceased was working as medical representative with M/s Panavin Pharmaceuticals cannot be disputed.
PW-Prem Kumar Sharma is the proprietor of said Firm and has proved the certificate of monthly salary of the deceased in this regard. The Tribunal has also taken care of the tax which the deceased would have been paying as per the tax slab for the relevant year and, therefore, after deduction the yearly amount comes to Rs.2,31,000/-. The petitioners are also entitled to the loss of future income keeping in view the celebrated judgment reported in (2017) 16 SCC 680 titled “National Insurance Company Limited vs. Pranay Sethi and Ors”. As per the record, the age of the deceased was 46 years at the time of death and no exception can be held to this fact which has been taken by the Tribunal. As the deceased was not having fixed income and the age of the deceased being between 40 years to 50 years, the petitioners shall be entitled to 25% addition to the future prospects of the income as per the judgment in Pranay Sethi case (supra). The multiplier of 13 shall apply keeping in view the age of the deceased being 46 years. The Tribunal has held that the deceased could be contributing 1/4th of the income towards his personal and living expenses in view of the judgment of the Hon’ble Apex Court in Sarla Verma case, AIR 2009 SC 3104. Again no fault can be found in the said finding of the Tribunal.
The Tribunal has also awarded Rs.81,000/- as medical expenses for the treatment the victim had undergone during the treatment. The original bills are on the file. The Counsel for the appellant submits that the bills have not been proved before the Tribunal by leading evidence by the claimants. The Court is of the view that the very fact that the original bills have been placed on record and cannot be said to be inflated one qua the injuries received by the deceased, the Court finds no reason to disbelieve the amount of medical bills to which the claimants have been held entitled to by the Tribunal. The Court cannot take a very microscopic view of the matter in a case pertaining to the accident and the claim filed under the Motor Vehicles Act.
The claimants-respondents are also held entitled to loss of estate and funeral expenses to the tune of Rs.15,000/- each. Thus, the total compensation to which the claimants are held entitled to is as under:-
Income : Rs.2,31,000/- P.A (Rs.19,250/- P.M)
Future prospects : Rs.57,750/- (25% of Rs.2,31,000/- =Rs.2,88,750/-)
Deductions towards : Rs.72,187/- (1/4th of Rs.2,88,750/-)
personal expenses
Multiplier : 13
Total income : Rs. 28,15,319/- (Rs.2,16,563 x 13)
Loss of Estate : Rs.15000/-
Funeral expenses : Rs.15000/-
Loss of Consortium : Rs.1,60,000/- (Rs.40,000/-x 4)
Medical Bills : Rs.81,000/-
____________
Total : Rs.30,86,319/-
Thus, the appellant-claimant shall be entitled to compensation to the tune of Rs.30,86,000/- (as round figure) along with interest @ 7.5% from the date of filing of the petition till realization of the whole amount. There cannot be quarrel with the proposition that the Court can award more amount than what is claimed by the claimants in the claim petition as the Court is to award just compensation in favour of the claimants. The Motor Vehicle Act is beneficial legislation and cannot impede the claim of the claimant on technicalities.
Issue No.3 : The Tribunal while deciding issue No.3 held that the driver of the offending vehicle was not holding license as on date of accident which is 25.10.2009. The respondent No.3 was holding a driving license which was valid up to 28.08.2009 meaning thereby that the driving license has expired only less than two months prior to the accident. RW-Ranjit Kumar from RTO, Jammu had produced the record and as per the record the driving license was renewed from 31.10.2009 to 30.10.2012 and prior to that the license was renewed from 29.08.2006 to 28.08.2009. The driver was not disqualified from holding driving license as per the record. This fact is evident as the license of the driver was renewed on 31.10.2009. Indeed, the renewal of driving license does not take effect from retrospective date. The Tribunal held the Insurance Company liable to pay the awarded amount on the ground as it cannot be said with certainty that the owner of the vehicle was negligent or that it did not take reasonable care in the matter of verification of validity of driving license of the driver. It may be relevant to mention herein that the owner could not appear in the witness box as he had died during the pendency of the claim petition.
Mr. Vishnu Gupta, learned counsel appearing for the appellant has argued that the fact remains that the driver of the vehicle was not holding driving license on the crucial date i.e. when the accident took place. At the most the Insurance Company can be directed to pay the amount that may be awarded in favour of the claimants and be held entitled to recover the same from the owner, now legal representatives of the deceased-respondent. The learned counsel has cited 2018 (1) Supreme 137 titled ‘Pappu And Ors. versus Vinod Kumar Lamba and another’ wherein the Hon’ble Apex Court upheld the contention of the Insurance Company and held that the Insurance Company is entitled to recover the awarded amount from the owner after the award is satisfied by the Company. The Court also held that once the owner is able to discharge the burden that the driver of the vehicle was authorized by him to drive the vehicle and was having valid license at the relevant time thereafter the onus would shift upon the Insurance Company to prove otherwise.
In the case in hand, the Tribunal could not in definite terms hold that whether the owner of the vehicle (now deceased) knew of the expiry of the driving license of the driver as he had expired before he might have appeared as witness in the case. But the fact remains that the driver of the vehicle was not having license on the day the accident took place. In view of the judgment (supra) and the facts that have come on record, the Court is of the view that the Insurance Company cannot be saddled with the absolute liability to pay the compensation to the claimants without holding that the Company is liable to recover the compensation amount from the owner.
In view of the discussion made above, the appeal is partly allowed. The appellant is directed to pay the compensation amount determined by this Court along with interest as awarded by the Tribunal. The appellant-Company shall be at liberty to recover the amount from the owner of the vehicle in accordance with law.
The original record be sent back to the Tribunal.
Disposed of.