Kusum Lata and Others
Vs Satbir and Others
J U D G M E N T
GANGULY, J.
1.
Leave
granted.
2.
Heard
learned counsel for the claimant, learned counsel for the insurance company and
also the learned counsel for respondent nos.1 and 2, the driver and the owner of
the offending vehicle.
3.
In
this case the claim for compensation filed by the appellants was concurrently denied
both by the Motor Accident Claims Tribunal (for short, `the Tribunal') as also
by the High Court.
4.
The
material facts of the case are that on 12th January, 2005 while Surender Kumar,
the victim, was going on foot, he was hit by a vehicle from behind as the vehicle
was driven rashly and negligently and was also in a high speed. The victim sustained
several injuries and was rushed to the hospital and was declared dead. After the
said incident the appellants, namely, Kusum Lata, wife of the victim and three of
his children, two are minor daughters and one is a minor son, filed a claim
petition.
5.
When
the matter came up before the Tribunal, the Tribunal in its award dated 14.6.2006
framed three issues for adjudication. Of those three issues, since the Tribunal
came to a finding against the appellants on the first issue, the other findings
of the Tribunal in the second and third issue were, according to Tribunal, of no
avail to the appellants. On the first issue the Tribunal came to a finding that
the involvement of the offending vehicle being tempo No.HR-34-8010 has not been
proved and since on this issue the Tribunal's finding went against the appellants,
no compensation was awarded. On an appeal filed against the said award, the High
Court by the impugned judgment dated 21.5.2010 also affirmed the finding of the
Tribunal.
6.
The
main reason why both the Tribunal and the High Court reached their respective findings
that vehicle No.HR-34-8010 was not involved in the accident are primarily because
of the fact that in the FIR which was lodged by one Ashok Kumar, brother of the
victim, neither the number of the vehicle nor the name of the driver was mentioned.
7.
Admittedly,
the facts were that the brother of the deceased, Ashok Kumar while walking on the
road heard some noise and then saw that a white colour tempo had hit his brother
and sped away. Immediately, he found that his brother, being seriously injured,
was in an urgent need of medical aid and he took him to the hospital. Under such
circumstances it may be natural for him not to note the number of the offending
vehicle.
That may be perfectly
consistent with normal human conduct. Therefore, that by itself cannot justify the
findings reached by the Tribunal and which have been affirmed by the High
Court. In the present case, evidence has come on record from the deposition of one
Dheeraj Kumar, who clearly proved the number of the vehicle. The evidence of Dheeraj
Kumar is that he was going along with one Ashok Kumar on a scooter to know the condition
of one of their relative in Mahendergarh Hospital. As they reached at turning at
Mahendergarh road a tempo bearing No. HR-34-8010 of white colour being driven in
a rash and negligent manner came from behind and overtook their scooter. Dheeraj
Kumar was not driving the scooter. Dheeraj Kumar saw that the tempo hit
Surender, the victim, as a result of which he fell down but the tempo did not stop
after the accident. However, the evidence of Dheeraj Kumar is that they followed
the same and caught the driver.
On their asking, the driver
disclosed his name as Satbir son of Shri Ram Avtar. Thereafter, they went to Mahendergarh
Hospital and on the next day when they were returning, they found police and
other persons were present at the spot. Dheeraj Kumar told the name of the driver
and gave the number of the tempo to the police. Dheeraj Kumar claims to have seen
the incident with his own eyes. When Dheeraj Kumar was cross-examined, he
stated that the deceased Surender is not related to him nor was he his neighbour.
He was his co-villager. Dheeraj Kumar also told that he knows the driver of the
vehicle bearing No. HR-34-8010. He denied all suggestions that he was giving
his evidence to help the victim. Both the Tribunal and the High Court have refused
to accept the presence of Dheeraj Kumar as his name was not disclosed in the
FIR by the brother of the victim.
8.
This
Court is unable to appreciate the aforesaid approach of the Tribunal and the High
Court. This Court is of the opinion that when a person is seeing that his brother,
being knocked down by a speeding vehicle, was suffering in pain and was in need
of immediate medical attention, that person is obviously under a traumatic condition.
His first attempt will be to take his brother to a hospital or to a doctor. It is
but natural for such a person not to be conscious of the presence of any person
in the vicinity especially when Dheeraj did not stop at the spot after the accident
and gave a chase to the offending vehicle. Under such mental strain if the brother
of the victim forgot to take down the number of the offending vehicle it was
also not unnatural.
9.
There
is no reason why the Tribunal and the High Court would ignore the otherwise reliable
evidence of Dheeraj Kumar. In fact, no cogent reason has been assigned either
by the Tribunal or by the High Court for discarding the evidence of Dheeraj Kumar.
The so-called reason that as the name of Dheeraj Kumar was not mentioned in the
FIR, so it was not possible for Dheeraj Kumar to see the incident, is not a
proper assessment of the fact-situation in this case. It is well known that in a
case relating to motor accident claims, the claimants are not required to prove
the case as it is required to be done in a criminal trial. The Court must keep this
distinction in mind.
10.
Reference
in this connection may be made to the decision of this Court in Bimla Devi and others
v. Himachal Road Transport Corporation and others [(2009) 13 SCC 530], in which
the relevant observation on this point has been made and which is very pertinent
and is quoted below:- "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."
11.
In
respect of the finding reached by the Tribunal on the assessment of
compensation, this Court finds that the Tribunal has used the multiplier of 16,
even though the age of the deceased has been determined to be 29. We find that the
Tribunal erred by applying the multiplier of 16. However, considering the age of
the victim, the multiplier of 17 should be applied in view of the decision of this
Court in Sarla Verma (Smt) and others v. Delhi Transport Corporation and another
reported in (2009) 6 SCC 121, and the chart at page 139. It is not in dispute
that in the instant case the claim for compensation has been filed under Section
166 of the Motor Vehicles Act. This Court finds that if the multiplier of 17 is
applied then the amount comes to Rs.3,93,428.45 apart from the amount of funeral
expenses and the amount granted for loss of consortium. Taking all these
together the amount comes to a little more than four lacs of rupees.
12.
The
Court, however, in exercise of its power under Article 142 and considering the number
of claimants, of which three are minor children, is of the opinion that for doing
complete justice in the case and by taking a broad and comprehensive view of the
matter, an amount of Rs.6 lacs including the amounts of consortium and funeral expenses
would meet the ends of justice. The Court, therefore, grants a compensation of Rs.6
lacs considering the fact that the victim was the sole wage earner in the family
and he left behind three minor children and a widow. The said amount is to be
paid along with interest @ 7% from the date of presentation of the claim petition
till the date of actual payment.
13.
In
respect of the dispute about licence, the Tribunal has held and, in our view rightly,
that the insurance company has to pay and then may recover it from the owner of
the vehicle. This Court is affirming that direction in view of the principles laid
down by a three-Judge Bench of this Court in the case of National Insurance Company
Limited v. Swaran Singh and others reported in (2004) 3 SCC 297.
14.
The
appeal is, therefore, allowed. The judgments of the Tribunal and the High Court
are set aside. The insurance company is to pay the aforesaid amount in the form
of a bank draft in the name of appellant no.1 with interest as aforesaid within
a period of six weeks from date and deposit the same in the Tribunal. This direction
should be strictly complied with by the Insurance Company.
15.
This
Court directs the Tribunal to take steps for opening a bank account in the name
of the appellant no.1 in a Nationalised Bank and deposit the demand draft in that
account. If, however, there is any bank account in the name of the appellant no.1,
the demand draft is to be deposited in that bank account.
16.
No
costs.
........................J.
(G.S. SINGHVI)
.......................J.
(ASOK KUMAR GANGULY)
New
Delhi
March
02, 2011
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