RESERVED
Court No. -58
Case :- FIRST APPEAL FROM ORDER No. - 2198 of 2017 Appellant :- United India Insurance Co. Ltd. Respondent :- Shri Layak Singh And 2 Others Counsel for Appellant :- Vipin Chandra Dixit Counsel for Respondent :- Sanjeev Kumar Pandey
Hon'ble Virendra Kumar Srivastava,J.
1. The instant appeal has been preferred under Section 173 of Motor Vehicle Act, 1988 (for short “M.V. Act”) by the appellant United India insurance Co. Ltd. (hereinafter referred to as “Insurer”) against the award and order dated 22.3.2017 passed by the Motor Accident Claims Tribunal/Additional Session Judge, Fast Track Court No.1, Mainpuri (for short “Tribunal”) in Motor Accident Claim Petition No. 172 of 2012 whereby claimant-respondent was awarded Rs. 1,15,090/- along with 7% simple annual interest.
2. Brief facts, necessary for disposal of this appeal, are that respondent-claimant Layak Singh (hereinafter referred to as “claimant”) was going to his house, situated at village- Manikpur on 15.1.2012 from Karhal at about 2:25 p.m. When he reached near Chiraua culvert situated at Karhal Sirsaganj Raod, defendant- respondent Anvesh Kumar, driver of offending vehicle Tata Spacio No. UP 84 E 3462 (hereinafter referred to as “driver”), while driving the said vehicle, rash and negligently, dashed the claimant from back side whereby claimant suffered grievous injuries on his head and neck. He got admitted in hospital by bye-passers and onlookers. Information was given by his son Chandrajeet (PW-2) at P.S. Karhal, Distt. Mainpuri, on 18.1.2012, whereupon a criminal case was registered u/s 279, 337, 338 IPC, against the offending vehicle UP 84 E 3462. At the time of accident claimant was mentally and physically healthy but due to head injury, caused in the accident, he became unable to earn and also to look after his family. He was sole bread winner of his family and he used to earn Rs. 4000/- per month from grocery shop and Rs. 2000/- per month from agriculture.
3. Claim petition was filed against the appellant-Insurer, respondent no.2 Rajeev Kuamr Yadav, owner of the aforesaid vehicle (hereinafter referred to as “owner”) and respondent No. 3 driver, by the claimant for compensation of Rs. 4,22,000/- with 12% interest.
4. Appellant – Insurer, respondent-defendants, owner and driver appeared before the Tribunal and contested the petition. Both the parties adduced their evidence. Learned Tribunal, after hearing both the parties, awarded a compensation of Rs. 1,15,090/- along with 7% interest from the date of filing of petition and directed the Insurer to pay the same to the claimant. Aggrieved by the said judgement this appeal has been preferred.
5. Heard Sri V.C. Dixit, learned counsel for appellant, Sri Sanjeev Kumar Pandey, learned counsel for claimant and perused the record. No one appeared for respondent nos. 2 and 3 despite service of notice.
6. Learned counsel for appellant submits that the alleged accident was not caused by the alleged vehicle because before causing the alleged accident, the offending vehicle was involved in another accident of same day i.e. 15.1.2012 at 3:00 a.m., the report whereof was lodged on 16.1.2012 at same P.S. Karhal and the case was registered as Case Crime No. 48 of 2012, wherein it has been mentioned that vehicle fell down in drainage on the other side of road. It has been further submitted that the alleged accident has been shown at 2:25 p.m. on same day whereas the technical examination report of the alleged vehicle, shows that the vehicle in question was not in a position to move or run anywhere. Learned counsel further submits that according to the claimant the alleged accident has been caused on 15.1.2012 at 2:25 p.m. whereas the medical treatment document, available on record, shows that the claimant was admitted on 15.1.2012 at 1:30 p.m. in Rural Institute Medical Sciences and Research, Saifai, Etawah (hereinafter referred to as “I.M.S.”) which shows that claimant would have received injuries in any other incident and had falsely implicated the alleged vehicle in this accident. It has been further submitted that bill voucher of medical expenses has also not been properly proved by the claimant. The judgment and award passed by the Tribunal is illegal and liable to be set aside.
7. Per contra learned counsel for claimants submits that alleged accident, admittedly, has been caused on 15.1.2012 at 2:25 p.m. and another accident caused on 15.1.2012 by the same vehicle was caused on 3:00 p.m. which is clear from the F.I.R. of the said accident registered as Case Crime No. 48 of 2012 wherein it has been clearly mentioned that the said accident has been caused on 3 o’ clock after noon. Thus there is no doubt regarding alleged accident because it may be possible that after causing the accident in question, the driver in order to avoid his arrest, drove rash and negligently, dashed another vehicle and caused another accident within the jurisdiction of same police station, on same day after half hour. Learned counsel further submits that since the claimant was badly injured and got admitted in I.M.S. for treatment, there might be some mistake in mentioning the exact time of the accident in F.I.R., which is not so relevant as to create any doubt. It is further submitted that looking into the nature of injury caused to the claimant and the document of medical bill pertaining to treatment submitted by claimant, the compensation awarded by the Tribunal is just and reasonable. Appeal filed by the Insurer is without any force and liable to be dismissed.
8. The main argument advanced by the learned counsel for appellant is that the alleged vehicle i.e. UP 84 E 3462 had also caused another accident on 15.1.2012 at 3:00 a.m. and was not in a position to move anywhere. Thus the involvement of this vehicle in the accident pertaining to the claim petition filed by the respondent no.1 Layak Singh is neither probable nor acceptable. This argument of the learned counsel is not acceptable because F.I.R. pertaining to Crime No. 48 of 2012 under Sections 279, 338, 337, 427 I.P.C., lodged on 16.1.2012 at 17:30 p.m., specifically shows that the said accident was caused on 15.1.2012, in the afternoon at 3 O' clock wherein one Rahul s/o Rakesh Kumar, R/o Kailashpur, P.S. Karhal, District Mainpuri got serious injuries. In said F.I.R. it has also been mentioned that the alleged vehicle had fallen in a drainage. Thus it is clear that said accident was caused on 15.1.2012 at 3:00 p.m. and not at 3:00 a.m., as submitted by the learned counsel for appellant. From perusal of record, it further transpires that alleged accident, pertaining to this appeal, was happened on 15.1.2012 at about 2:25 p.m., in regard to which F.I.R. was lodged on 18.1.2012 as Crime No. 64 of 2012 under Section 279, 337, 338 I.P.C. at P.S. Karhal, District Mainpuri. This F.I.R. was lodged by son of injured/respondent no.1, wherein it has been specifically mentioned that after causing alleged accident on 15.1.2012 at about 2:25 p.m., the driver of alleged vehicle U.P. 84 E 3462 (Spacio Gold Tata) had fled away from the place of occurrence with alleged vehicle.
9. Thus it is clear that both accidents were caused on 15.1.2012. The alleged accident pertaining to this appeal had been caused about 35 minutes prior to the second accident and it has been clearly mentioned that after causing impugned accident, the driver of the alleged vehicle had run away with the vehicle. It is also clear that both accidents had been caused by same vehicle within the jurisdiction of same Police Station, which denotes that the distance of both places of accidents is not so long, to make impossible to both accidents within 35 minutes.
10. So far as submission of learned counsel for appellant that alleged accident was happened on 15.1.2012 at 2:25 p.m. but the claimant had already been admitted for treatment prior to accident i.e. on 15.1.2012 at 1:15 p.m. at I.M.S. which shows that the accident, wherein the claimant had received injuries, was not caused by this vehicle, is concerned, material on record shows that claimant was badly injured at the time of occurrence. He had been carried by some bye-passers to I.M.S. Claimant in his statement has specifically stated that the alleged accident was caused on 15.1.2012 at 2:25 p.m. nearby culvert (Chiraua puliya), situated at Karhal Sirsaganj Road by the alleged vehicle no. UP 84 E 3462 (Tata Spacio). He has been cross- examined by the counsel for appellant- Insurance Company, nothing has come out in cross-examination to show that the said accident was not happened at alleged date, time and place of occurrence. No question was also put to this claimant regarding discrepancy or doubt regarding time of his admission at I.M.S. Thus submission raised by learned counsel for appellant regarding discrepancy in the discharge slip (issued by I.M.S.) of claimant, has no force.
11. Section 168 read with Section 169 of M.V. Act provides a procedure for determination of just compensation. According to Section 168 of M.V. Act, for determination of compensation, the Tribunal is required to hold an inquiry into the claim whereas Section 169 provides that in holding such inquiry, the Claim Tribunal shall follow 'such summary procedure as it thinks fit'. Section 168 and 169 of M.V. Act are reproduced as under:
“168. Award of the Claims Tribunal -
(1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.
169. Procedure and powers of Claims Tribunals-
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.”
12. Since it is an inquiry, the principle of law applicable in criminal trial as well as civil suit is not applicable in proceeding of claim. It should also keep in mind that after causing accident, driver of vehicle makes every effort to fly from the place of occurrence, leaving the injured in critical condition. In such situation bye-passers or onlookers come forward to help. They also try to chase the offending vehicle and to note its registration number, as well as to catch the driver of the offending vehicle and disclose the same to claimant/informant or person available on spot. It has been seen that in some cases, in order to avoid to attend the Court proceeding or further inquiry made by Police, eye witnesses do not come forward to disclose their names.
13. In Bimala Devi Vs. Satbir Singh (2013) 14 SCC 345, the Supreme Court has again reminded the nature of proof required in determining the compensation in claim petition and has held as under:-
“10. In claim cases, it is difficult to get witnesses, much less eyewitnesses, thus extremely strict proof of facts in accordance with provisions of the Evidence Act may not be adhered to religiously. Some amount of flexibility has to be given to those cases, but it may not be construed that a complete go-by is to be given to the Evidence Act.
11. From the facts as unfolded hereinabove, it is clear that the appellants have been callous and negligent in prosecuting the matter and did not do so in right earnest. We cannot take a pedantic view of the matter so as to shut the doors of justice to the appellants. The Motor Vehicles Act is a social piece of legislation and has been enacted with the intent and object to facilitate the claimants/victims to get redress for the loss of losing of family member or for injuries at an early date. In any case, money cannot be any substitute for it, but in the long run it may have some soothing effect. Thus, it is desirable to adopt a more realistic, pragmatic and liberal approach in these matters ”
14. In Bimala Devi Vs. Himachal Road Transport Corporation and others, (2009) 13 SCC 530, Hon'ble Supreme Court while discussing the nature of evidence required for proof of accident and determination of compensation before the Tribunal, has held as under:-
“14. 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.
15. 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.”
15. Respondent no. 1 Layak Singh (PW-1) in his statement before the Tribunal has specifically stated that alleged accident was caused by the rash and negligent driving of the driver (respondent no.2) on 15.1.2012 at 2:25 p.m. This witness has been cross-examined by the learned counsel for appellant- Insurance company before the Tribunal. In cross-examination no such question/suggestion was put to injured/claimant Layak Singh regarding any other accident, caused by the vehicle on same day. Record further shows that neither such pleading regarding any other accident was taken in written statement, filed by Insurer nor any witness was produced by the insurer to rebut the evidence of claimant, produced before the Tribunal. Record further shows that the Tribunal has elaborately discussed the evidence produced by the claimant wherein it has been established that the alleged accident was caused by the driver of vehicle UP 84 E 3462.
16. To controvert the oral and documentary evidence produced by the claimant neither driver nor owner or Insurer (appellant) has produced any oral evidence. Even driver, against whom charge sheet has been submitted by Police, did not turn up in witness box to rebut the version and evidence of claimant. Thus if appellant as well as respondents, owner and driver of the offending vehicle, did not produce any evidence in rebuttal of evidence produced by claimant, finding of Tribunal requires no interference.
17. So far as submission of learned counsel for appellant that medical treatment document and bill voucher of medical expenses produced by the claimant have not been properly proved and compensation awarded is excessive, is concerned, in claim petition it has been specifically mentioned that the claimant used to earn Rs. 4000 per month from his grocery shop and Rs. 2000/- per month from agricultural work. He was mentally and physically healthy but after accident he became incapable to do any work or job. It has also been mentioned that in alleged accident serious injuries were caused on his neck and head. Claimant has stated that he was admitted in I.M.S. From 15.1.2012 to 21.1.2012 thereafter he was admitted in Gandhi Nagar Hospital, Agra for 15 days for his treatment and also in B.D.G. Hospital and Research Centre for further treatment. His treatment at I.M.S. From 15.1.2012 to 21.1.2012 is also evident from discharge slip; medical slip; vouchers, produced by him and available on record. He has also stated that due to that injury his memory has become weak. Claim petition was filed for Rs. 4,22,000/- but only Rs. 1,15,090/- has been awarded with 7% annual interest from the date of filing of claim petition.
18. It has now been settled that loss of life or limb and pain suffered due to injuries caused by accident can not be weighed in terms of money but at the same time it is also be kept in mind that compensation is neither windfall nor bonanza to victim or claimant.
19. Looking into the nature of injuries and duration of medical treatment of claimant and pain suffered by him, in my view, the compensation awarded by the Trial Court is just and fair which requires no interference. The impugned order and award dated 22.3.2017 is affirmed. Appeal is dismissed.
20. Office is directed to return back the lower court record to Tribunal forthwith so that the awarded compensation be paid to the claimant in view of the impugned award. The statutory deposit of Rs. 25000/-, deposited by the Insurer before this Court, if not remitted, be also remitted to the Tribunal.
Order Date :- 21.8.2019 Vandana