FAO No.142 of 2005

9th May, 2014.

Petitioner Counsel: Mr. A.S. GILL
Respondent Counsel: Mr. GOPAL MITTAL

Cases Cited:
Virat Sama Vs. Mohan Lal & Ors., 1994 (1) PLR 82 [Para 6]
Dhanna Lal Vs. D.P. Vijayvargiya, 1996 (3) PLR 656 [Para 8]

JUDGMENT

JUDGMENT :- Learned Motor Accident Claims Tribunal, Jalandhar through impugned award dated 10.09.2004 dismissed the claim petition of the appellant-claimant Nitin Wasil and who thus, has come up in this appeal.

2. The essential facts are that on 22.08.1983 Shyam Sunder Wasil (since deceased) aged around 42 years, working as a field employee of the rank of Senior Inspector in Peerless General Finance and Investment Company Limited, Calcutta and posted at branch office, Jalandhar was driving his Fiat car No. MXV-1264 (in short, 'ill fated car') going along with others towards Moga and when he reached village Bhoyapur, Tehsil Shahkot, a truck bearing No.PUF- 1832 came from the opposite side being driven rashly and negligently by respondent No.1 Parkash and hit the car of the deceased resulting in injuries to the deceased, who died during treatment on 12.10.1983.

3. The claimant invoked the jurisdiction of the Tribunal on 20.9.1999 contending that he was a minor at the time of death of his father and after obtaining age of discretion when the facts came to his knowledge has knocked at the doors of the Tribunal. It is claimed that deceased was earning Rs.60,000/- per month upon whom the claimant was dependant and hence sought compensation from the driver-respondent No.1, owner-respondent No.2 and Insurer of the truck respondent No.3 and has arrayed his mother, brother and sister as proforma respondents No.4 to 6.

4. The driver and the owner have not put in appearance and were proceeded ex parte by the Tribunal, whereas, Insurer has contested the matter and has taken the stand of denial on account of lack of knowledge and took the usual defences available under the Act. Learned Tribunal in his conclusion has held that claimant has failed to prove the accident and resultant death of the deceased.

5. After hearing learned counsel for the parties and perusing the record of the case. The task of this Court has become all the more difficult keeping in view the fact that original record stood destroyed in the fire that engulfed the record room and the present findings are based on whatever remnants could be retrieved during reconstruction.

6. The first and foremost contention of Mr. Mittal counsel for the Insurer that the FIR in this case has not been proved on the record has been countered with much elance by Mr. A.S. Gill on behalf of the appellant. FIR is not a prerequisite to prove an accident and it is the evidence before the Tribunal which is to be gone into. The Tribunal has failed to appreciate the same. Appreciating these contentions, no doubt, under the settled position of law FIR is not a substantial piece of evidence and as has been laid down in Virat Sama vs. Mohan Lal and others 1994 Volume (1) PLR 82 the Courts are supposed to appreciate the evidence which has been led before it and not merely on the registration and non-registration of the FIR. The DDR Ex. A-2 reflects that an accident has certainly taken place on 22.8.1983 at about 3.30 p.m. in the area of Kawanwala bridge towards Shahkot, wherein, it is clearly enumerated that truck No.PUF-1832 came in a rash and negligent manner and hit the Fiat car No.MXV-1264 and that the complainant Kartar Singh in this case has not identified the persons either in the truck or car but there is positive averment by him that the truck driver was driving the vehicle in a rash and negligent manner and had come on the wrong side of the road and hit the car and has termed the truck driver to be a clean shaven person and so the deceased who fell out of the car and was crushed with the front tyre of the truck and, thus, leaves no scope to further corroborate the fact of this accident resulting in this death. Furthermore, this person has specifically stated in his testimony that the truck driver after stopping the truck had disclosed his name as Parkash. Learned counsel for respondent No.4 could not show how the same does not identifies the driver when the vehicle has been amply detailed in this report, merely because the police did not investigate the matter and there is nothing tangible brought on the record does not means or can be construed that nothing such has transpired. The most material witness as has been pointed out on behalf of the appellant is PW2 Ram Lubhaya, who was accompanying the deceased in the car and who has levelled allegation of rash and negligent driving to the driver of the truck and he is one of the persons who has also fallen out of the car along with one M.G. Kaul. Rather as is reflected from the cross-examination of this witness, a suggestion has been put to this witness that the accident took place due to the negligence of car driver thus, leaves no scope to doubt about acceptance of this accident. Even Dr. Gian Parkash, SMO, PHC, Shahkot, PW3 who initially gave first aid to the injured has detailed about this accident and has never been cross-examined to put to doubt his credential.

7. Furthermore, Dr. Joginder Singh Dang, Orthopaedic Surgeon of Dr. Dang Clinic, who has stepped into the witness box as PW1 and has detailed how on 22.8.1983 around 7.50. p.m. he has treated the injured Sham Sunder Bansal and that the patient has died on 12.10.1983 at about 11.30 p.m. and has proved bed head ticket as Ex.PW5/A. The finding of the learned Tribunal that the death has not been proved by the claimant is certainly an erroneous assumption and the learned Tribunal certainly fell into an error in misconstruing this evidence. In his cross-examination the doctor has categorically stated that bed head ticket Ex.PW5/A bears his signatures as well as his handwriting. When the death has been established by a doctor who had examined and treated the deceased and in the absence of any post mortem report, it cannot be accepted as has sought to be argued by Mr. Mittal that the death has not been proved. The Act is a welfare Statute and, therefore, needs to be liberally construed for the advancement of justice and is to be interpreted for the benefits of the claimants. Thus, from this evidence, it clearly stands established cogently beyond any doubt that the accident resulting in this death on account of rash and negligent driving of the truck driver is well established on the record. Though, notices have been issued to the driver and the owner but none has put in appearance and the evidence having remained unrebutted needs to be accepted.

8. It is certainly on the record that the accident has taken place on 22.8.1983, the death of the deceased took place on 12.10.1983 and the claim petition has been filed on 20.9.1999 after a period of almost 15-16 years and there is a stand of the claimant that he was minor at the time of the accident and on attaining age of discretion after coming to know of it has instituted the claim petition and, though, in view of the settled position of law as laid down in Dhanna Lal vs. D.P. Vijayvargiya 1996 Volume (3) PLR 656 with the coming into force of the new Act in 1988 and that the accident had taken place during the operation of the old Act certainly limitation cannot bar filing of the claim petition, especially, in the light of the welfare nature of the Statute. In view of the provisions enshrined in Section 6 of the Limitation Act, 1963 the claimant certainly can seek such a remedy after he attains majority on 24.8.1998 as per his own statement as AW1 by way of school certificate Ex.A1. He was two and a half years of age at the time of this accident and this legal handicap of minority ceases to operate. More so, as has been argued by Mr. Gill neither this objection was taken before the Tribunal nor issue was framed qua it. Thus, there is no legitimate bar for the claimant to have sought such a relief.

9. The evidence of the claimant as AW1 illustrates inter se relationship of the deceased and this claimant as well as of respondents No.4 to 6. Though, Mr. Gill has sought to stress that the deceased was 42 years of age at the time of his death, working and also earning commission and was getting Rs.60,000/- per month from M/s Peerless General Finance Company Limited, Calcutta, but it has been argued with great force by Mr. Mittal that there is no documentary evidence to establish it so. The only semblance of evidence as to the income of the deceased Sham Sunder is a letter dated 22.11.2002 written to General Manager (Legal) of this Company proved by AW3 Mahesh Kumar Verma for authentication of certificate of income Ex.P5 which is by way of certificates pertaining to years 1981-82 and 1982-83 of the likely remuneration as agent by virtue of Ex.P3 and Ex.P4. It needs to be kept in mind that in the absence of any proven fact that the deceased was assessed to income tax and with such a remuneration necessary deduction was to be made cannot be considered as to be exclusive carry home income. Having regard to the nature of the avocation of the deceased, age, economic status and other circumstances by some amount of approximation, it can be safely concluded that the deceased in all eventuality after deducting his own expenses of self maintenance out of his earning must be contributing to the running of the household a sum of Rs.10,000/- per month. Thus, the annual dependency comes to Rs.1,20,000/-. Having regard to the age of the deceased and the undisputed fact that such earnings are subject to market conditions which may undergo change and that had the deceased been alive with passage of time and age his earnings would certainly diminish, the multiplier of 10 appears to be the most appropriate. Therefore total compensation comes to Rs.12,00,000/-.

10. The Insurer has not denied the factum that the truck in question was insured with respondent No.3-M/s United India Insurance Co. Limited as is also reflected from the document Ex.P6 placed on the file that at the time of this accident the vehicle was under insurance cover. The argument of Mr. Mittal that the liability of the Insurer is only to the extent of Rs.1,50,000/- needs to be outrightly brushed aside as the same is not applicable qua 3rd party claim and is a question inter se between owner and Insurer. Thus, from all this evidence, the finding needs to be returned that the driver, owner and Insurer are jointly and severally liable to pay this compensation amount. However, it would subserve the ends of justice, if it is held that Insurer reserves the right to recover excess amount of compensation, if any, by virtue of Ex.P6 from the driver and owner jointly and severally by recourse to appropriate proceedings.

11. Since the respondents No.4 to 6 admittedly as per own admission of the counsel for the appellant, on the specific query of the Court, were major at the time of accident and did not choose to institute any proceedings claiming compensation, by virtue of this conduct though, are certainly not entitled to seek compensation, however, keeping in view the welfare nature of the Statute ends of justice demands that these poor respondents who have been kept away from law obviously for the reasons beyond their control are also allowed share in this compensation amount and, therefore, the claimant as well as respondents No.4 to 6 are entitled to this compensation in equal shares.

12. In view of the fact as has been detailed above that the claimant has invoked the jurisdiction of the Tribunal after an inordinate delay, this Court deems it imperative to hold that the claimant shall be entitled to interest on this amount @ 8% per annum from the date of filing of the claim petition till realisation.

13. Interim compensation paid, if any, shall be adjusted.

14. With these observations, the instant appeal stands allowed.

Appeal allowed.