Court No. - 37
Case :- FIRST APPEAL FROM ORDER No. - 3481 of 2012 Appellant :- Smt. Saroj And Another Respondent :- Rajendra Singh And Another Counsel for Appellant :- Anju Shukla,Nigamendra Shukla Counsel for Respondent:- Shree Radhey Sham
Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Subhash Chand,J.
1. Heard Sri Nigamendra Shukla, learned counsel for the appellants and learned counsel for the respondent-Insurance Company.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 30.5.2012 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.15, Meerut (hereinafter referred to as 'Tribunal') in M.A.C.P. No.509 of 2010 by which the claim petition of the claimants- appellants has been rejected holding that accident occurred all of a sudden and it was not due to the negligence of the driver of the vehicle. This dismissal of the claim petition has given rise to this appeal.
3. We are unable to understand why Tribunal while dismissing the claim petition has ventured to decide the other issues also. The genesis of the matter as culled out from the Judgment is that on 12.3.2010 at about 6.15 am deceased Yashpal Singh was standing on the roadside near Panjab National Bank, J Block, Shastri Nagar, Meerut when driver of Truck No. U.P. 12 T 0145 driving it at high speed against traffic rules dashed deceased hard on account of which Yashpal Singh sustained severe injuries and he succumbed to his injuries in Lokpriya Hospital on 31.3.2010. The deceased was 58 years old at the time of accident and was in profession of transport. He was sole bread earner of the family. After accident, the deceased remained admitted in Apoorva Hospital, Shastri Nagar, Meerut from 12.3.2010 to 13.3.2012; in Tulsi Hospital, Meerut from 17.3.2010 to 23.3.2010 in Fortis Hospital, Noida from 23.3.2010 to 30.3.2010 and thereafter in Lokpriya Hospital for only one day on 31.3.210. During this period, about Rs.6,00,000/- were spent towards his treatment.
4. The Tribunal issued notice to the owner of the vehicle who in his written statement contended that the accident did not occur due to the rash and negligent driving of the vehicle but as the deceased all of sudden came on the road, the accident occurred.
The vehicle was insured with opposite party no.2 M/s National Insurance Company, which filed its reply contending that there was breach of policy conditions and they have not accepted that the accident occurred due to the negligence of the driver of the truck. They contended that accident occurred due to coming of a boy on road all of a sudden and this has been culled out from the F.I.R. lodged by the deceased himself on 14th March 2010 which corroborates with the GD entry that one boy all of sudden came on the road and so as to save the boy, the truck had turned to the left side and rear wheels of the truck dashed with the left foot of the deceased and the accident occurred not because of the rash and negligent driving of the driver of the truck but because of this unforeseen accident having occurred. The Insurance Company had according the the Judgment contended that petition should have been filed under Section 163 A and not 166 of the Motor Vehicle Act, 1988.
5. The Tribunal framed three issues. The claimants examined about eight witnesses. F.I.R. of the accident, GD entry, medical certificates and all other documents were produced. It is admitted position of fact that the driver of the truck did not appear before the Tribunal. Tribunal did not believe P.W.4 who was an eye witness and who has categorically mentioned that the witness was cleaning his Indigo Car and, at that time, a truck bearing registration no. UP 12 T 0145 came from the side of L Block Shashtri Nagar and dashed Yashpal Singh and crushed his feet and also dashed the vehicle of P.W. 4 from behind. This witness has not been believed by the Tribunal just because he had not lodged any F.I.R. that the said truck had dashed his car.
6. Be that as may be, it is an admitted position of fact that these days our Tribunals are faced with the witnesses who are not coming forth. Police has not carried proper investigation. Should that be detrimental to the claimant? The answer is 'No'. Even if the child has come in the way, it can be seen.
7. Tribunal has misdirected itself. The injury has been caused by the truck is believed by the court below. Thus, we hold that the driver of the vehicle was negligent in view of Judgment in Smt. Kaushnuma Begum and others Vs. The New India Assurance Co. Ltd., (2001) 2 SCC 9. Finding of facts cannot be concurred by us in view of the recent Judgment of the Apex Court in the case of Anita Sharma Vs. New India Assurance Company Ltd, 2021 (1) SCC 171 and Judgment in Mangla Ram Vs. Oriental Insurance Company Ltd. (2018) 5 SCC 656. The Tribunal could not have dismissed the claim petition on the reason assigned by it, in the light of the Judgments, which have held that courts should take a holistic view of the claim petitions. The legal heirs have been able to bring home the fact that the accident occurred due to negligence of the driver of the truck.
8. As far as the issue of negligence is concerned, truck driver has to be found fault with. The driver of the truck did not appear before the court below. The Judgment of Allahabad High Court, Yogendra Pal Singh Vs. M.C.T. Company and others, 1995 (2) TAC 15 has to be applied. The Tribunal also held that adverse inference should be drawn. The F.I.R. was lodged by the deceased himself as after accident took place on 2nd of March 2021, he survived for about 28 days and the accident, which occurred involved the deceased and the truck. The deceased was dashed by the truck. If the driver of the truck had taken care and caution, he could have avoided the accident having taken place. The evidence of the witnesses has not been accepted which is also against the Judgment in the case of the Apex Court in Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186, and, therefore, we are obliged to hold that the deceased died due to the accidental injuries. The deceased was in the hospital. As per the Judgment of the Apex Court, it was the duty of the police authorities to report the accident. Just because the accident took place all of a sudden, it does not mean that there was no injury. The injuries show that it was caused by the driver of the truck.
F.I.R. cannot be made sole basis for dismissing the claim petition. The Tribunal came to the conclusion that the accident caused injuries to the deceased which was believed by the Tribunal based on the evidence of P.W. 2, 3, 4, 5 & 8 who were the doctors and record keeper of the concerned hospital. The cardiac arrest may be because of these injuries also. Finding that the driver of the truck was not negligent and deceased died of heart attack but because of septic injuries, the Tribunal has dismissed the claim which is unjust. As far as the driving licence, fitness certificate is concerned, it was proved against the Insurance Company, therefore, those issues cannot be re- agitated.
8. Appeal is allowed.
9. As the record is with the Tribunal, the Tribunal will proceed with M.A.C.P. No.509 of 2010 and decide the compensation as expeditiously as possible, not later than 31st of December 2021.
Order Date :- 13.8.2021/Ram Murti