It is thus clear that in proceedings under the MV Act, where
procedure is a summary procedure, there is no need to go by strict rules of
pleading or evidence. Document having some probative value, the
genuineness of which is not in doubt can be looked into by the Tribunal
for getting preponderance of probable versions. As such, it is by now well
settled that even FIR or Police papers, when made part of claim petition
can be looked into for giving a finding in respect of happening of theaccident and for reaching conclusion about negligence. In other words,
evidence of claimants is required to be examined in broader probabilities
of their case, in order to achieve object of social welfare legislation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
First Appeal No. 257 of 2010
Ashabai w/o. Kalyan Kothi,
versus
Baban s/o. Santosh Bidgar,
CORAM : A.M. BADAR, J.
Date of pronouncing the
judgment : 5th December 2015.
1. By this appeal under Section 173(1) of the Motor Vehicles
Act, 1988 [For short, hereinafter referred to as “MV Act”], appellants /
original claimants are challenging the judgment and award dated 3-11-
2009, passed by the learned Chairman, Motor Accident Claims Tribunal,
Beed, in M.A.C.P. No. 138/2005, thereby rejecting claim for compensation
led by appellants / original claimants on account of death of Kalyan Kothi
in the alleged vehicular accident which took place on 9-9-2004 at Masrat
Nagar, Beed. Respondent no.1 is the owner of the truck allegedly
involved in the said accident; respondent no.2 is its insurer whereas
respondent no.3 was allegedly working as driver on the said truck on the
date of the accident. For the sake of convenience, parties shall be referred
to in their original capacity.
2. Brief facts leading to the institution of the present appeal can
be summarized thus :-
(a) Initially claimants who are dependent legal representatives of
deceased Kalyan Kothi filed the petition under Section 163A of the MV
Act, claiming compensation on account of death of Kalyan Kothi as per
structured formula contending that he died because of accident arising out
use of motor vehicle i.e. truck bearing registration No. MH-15/AG-1870
[For short, hereinafter referred to as “the truck”] owned by respondent
no.1, insured with respondent no.2 and driven by respondent no.3 at the
relevant time. It was alleged therein that deceased Kalyan Kothi was
earning monthly income of Rs. 4,000/-. After due trial, the learned
Member of the Motor Accident Claims Tribunal, Beed, initially on 30-3-
2007 allowed that claim petition and directed respondents to pay
compensation amounting to Rs. 3,91,000/- to claimants on the basis of
structured formula.
(b) Respondent no.2 - Insurance Company carried that award in appeal
bearing First Appeal No. 979 of 2007. This Court by judgment and order
dated 19-6-2008 was pleased to allow that appeal by holding that the
social security provision as envisaged in Section 163A of the MV Act is
available for a distinct class of persons whose annual income is restricted
to Rs. 40,000/-. It was held that the persons of that category can only take
benefit of said social security provision which was enacted by the
legislature with the specific object of providing a speedy and effective
remedy to that particular class of persons. As income of deceased was
pleaded to be Rs. 48,000/- per annum, this Court quashed and set aside the
impugned judgment and award dated 30th March 2007 and remanded the
claim petition with a permission to convert the claim under Section 163A
into a claim petition under Section 166 of the MV Act. The operative part
of the said judgment and order needs re-production and it reads thus :-
“19. Hence I pass the following order :
(i) The impugned judgment and award dated 30th
March 2007 is quashed and set aside and M.A.C.P. No.
138/05 is restored.
(ii) On an application being made by the claimants,
the learned Member of the Tribunal will allow the claimants
to carry out necessary amendments to the claim petition
for converting the claim petition into a claim petition under
Section 166 of the Motor Vehicles Act, 1988.
(iii) It will be open for the respondents in the claim
petition to file their written statements or to file
supplementary written statements by adopting the earlier
written statements which are already on record.
(iv) The claim petition shall be decided expeditiously.
(v) All contentions of the parties including various
contentions raised by the appellant in this appeal are kept
open.
(vi) The appeal is partly allowed in above terms with no
orders as to costs.
(vii) In view of this judgment, it will be open for the
appellant to withdraw the sums of Rs. 25,000/ and rs.
4,68,624/ deposited in this Court.
(viii) Pending civil applications are disposed of. ”
(c) After remand, claimants were allowed to effect necessary
amendments to the claim petition under orders of this Court for converting
the claim petition under Section 163A of the MV Act into a claim petition
under Section 166 of the MV Act. Consequently, respondent no.2 -
Insurance Company also filed additional written statement. At this
juncture, it needs to mention here that respondent no.1 - owner and
respondent no.3 - driver remained absent before the learned Tribunal.
3. Facts in brief necessary for deciding the present appeal are
thus :-
(i) According to claimants, Kalyan Kothi (since deceased) was 40 years
of age at the time of his accidental death. He was doing labour work by
loading and unloading the goods from trucks. Apart from this, he was also
engaged as ‘Munim’ (Accountant) in spare time with one Dilip Munot.
Deceased was earning Rs. 4,000/- per month by working as labourer and
Munim. Apart from this, the deceased was earning Rs. 12,000/- per
annum from supervising the agricultural land possessed by his family.
(ii) It is case of claimants that on 9-9-2004, deceased Kalyan Kothi was
engaged in loading and unloading paved flooring stones from the truck.
While unloading, due to a sudden jerk, paved flooring stones escaped from
the truck and crushed Kalyan Kothi. The said truck was parked in
ascending position with its engine in working condition. The accident
happened as with a jerk the truck came in reverse direction causing fall of
paved flooring stones from it by which deceased Kalyan Kothi was
injured. Hence, according to claimants, the accident occurred due to
negligence of driver of the said truck. Kalyan Kothi was declared dead at
Phoenix Critical Care Centre, Beed. Report of this accident was lodged
by Dilip Munot with the concerned Police Station and consequently
necessary formalities were done by the Police. With these averments,
claimants prayed for directing respondents to pay compensation of Rs.
4,00,000/-.
(iii) At this juncture, it is apposite to note that right from initial stage i.e.
their lodging the claim under Section 163A of the MV Act, it was pleading
of claimants and more particularly in para 2 of the petition that driver of
the said truck failed to take proper care while parking the same as well as
while loading and unloading the goods.
(iv) Respondent no.2 - Insurance Company initially filed written
statement at Exhibit 10 and denied the factum of accident, hospitalization
and death of Kalyan Kothi. Income of the deceased as well as mode and
manner of the accident was also denied for want of knowledge. The
Insurance Company contended that the Police registered accidental death
case and no offence was lodged against the driver of the said truck for rash
and negligent act. Hence according to respondent no.2, the incident was
merely a mishap. It was further pleaded that the truck was not at public
place and it was parked in the premises of house.
(v) After remand, respondent no.2 - Insurance Company filed additional
written statement at Exhibit 43 and again denied the accident as well as
averments of claimants that deceased Kalyan Kothi was engaged in
loading and unloading paved flooring stones. It also denied the alleged
fact that Kalyan Kothi died due to fall of paved flooring stones. For want
of knowledge, respondent - Insurance Company also denied alleged
carelessness on the part of the driver in parking the truck in ascending
position with engine in working condition. Respondent - Insurance
Company pleaded that Police papers in respect of accident shows that no
crime was registered against the driver. The truck was in private premises.
It was stationery and driver was not on its wheels. The mishap did not
arise out of use of the motor vehicle. The Insurance Company further
contended that remedy of claimants is under the Employee's
Compensation Act against his employer Dilip Munot. The Insurance
Company further averred that driver of the said truck was not holding
valid driving license.
(vi) The learned Tribunal based on rival pleadings framed issues at
Exhibit 44 and the parties went for trial. It needs to be noted here that
initially claimants had adduced evidence of claimant no.1 Ashabai Kothi
(widow) at Exhibit 13 and also adduced evidence of Dilip Kakade
(Labourer doing the work of unloading paved flooring stones at the time of
happening of the accident) at Exhibit 22. After remand of the case,
claimants tendered additional evidence on affidavit of claimant no.1
Ashabai at Exhibit 45 as well as that of Dilip Kakade at Exhibit 48.
Parties continued to rely on certified copies of Police papers in respect of
the accident in question.
4. After hearing the parties, by the impugned judgment and
award, the learned Tribunal was pleased to hold that claimants proved that
the accident took place on 9-9-2004 due to involvement of the truck
bearing registration No. MH-15/AG-1870 causing death of Kalyan Kothi.
However, the learned Tribunal further held that claimants failed to prove
that the said accident took place because of rash and negligent act on the
part of driver of the said truck. The learned Tribunal then assessed the
compensation at Rs. 3,21,500/- but concluded that claimants are not
entitled for any compensation as they failed to prove that the accident
occurred because of rash and negligent act on the part of driver of the said
truck. Accordingly, the claim petition came to be dismissed by the
impugned judgment and award dated 3-11-2009.
5. Heard Shri Chapalgaonkar, the learned Counsel appearing for
appellants / claimants. In his submission, claim under Section 166 of the
MV Act can be awarded if claimants are successful in proving the fact that
death occurred out of the use of motor vehicle. According to him, the
casual relationship between use of motor vehicle and the accident resulting
the death is not required to be direct and proximate but it can be less
immediate. He relied on judgment of the Hon'ble Apex Court in the case
of Shivaji Dayanu Patil and another Vs. Smt. Vatschala Uttam More,
reported in AIR 1991 SC 1769, to buttress this contention.
6. Shri Chapalgaonkar, the learned Counsel appearing for
appellants, further argued that it is not necessary to go by any rules of
pleading or evidence in the proceedings under the MV Act. Strict rules of
pleading and evidence are not applicable to such summary proceedings. In
support of this contention, he relied on judgment of the Hon'ble Apex
Court in the case of Ningamma & another Vs. United India Insurance Co.
Ltd., reported in 2009 AIR (SCW) 4916 and contended that the learned
Tribunal committed grave error in concluding that evidence adduced by
claimant Ashabai and witness Dilip Kakade is contrary to their evidence
given earlier in point of time when the claim under Section 163A of the
MV Act was made. Shri Chapalgaonkar, the learned Counsel further
argued that the learned Tribunal committed further error by holding that
claimants had not specifically pleaded main avocation of the deceased as
Porter with separate earning from private service. According to Shri
Chapalgaonkar, the learned Counsel, going by strict rules of pleading, the
learned Tribunal erred in holding that claimants came up with false case
that the deceased was doing work as Porter. He has relied upon judgment
of the Hon'ble Apex Court in the case of Bimla Devi & others Vs. Himachal
Road Transport Corporation & others, reported 2009 AIR (SCW) 4298. Shri
Chapalgaonkar, the learned Counsel further argued that the learned
Tribunal unnecessarily entered into the controversy as to what work the
deceased was doing when the main issue before the learned Tribunal was
whether the accident arose on account of use of motor vehicle in which
deceased Kalyan Kothi died and whether it happened because of rash and
negligent act attributable to the driver of the truck.
7. Shri Chapalgaonkar, the learned Counsel appearing for
appellants, further argued that by applying principle of res ipsa loquitur,
the learned Tribunal recorded the finding that deceased Kalyan Kothi was
standing on the ground and helping Porters for unloading paved flooring
stones when those fell on his person. With such finding, the learned
Tribunal ought to have upheld the contention of claimants that the accident
occurred because of rash and negligent act on the part of driver of the
truck. In his submission, it was for respondents to demonstrate how the
accident had happened as claimants had proved the factum of accident. As
respondents failed to establish that driver of the truck was not negligent,
the learned Tribunal ought not to have recorded a finding that claimants
failed to establish rash and negligent act on the part of the driver. In
support of this submission, Shri Chapalgaonkar, the learned Counsel relied
on judgment of the Hon'ble Apex Court in the case of Pushpabai
Purushottam Udeshi Vs. Ranjit Ginning and Pressing Company Private
Limited, reported in 1977 AIR (SC) 1735.
8. Though the learned Tribunal had recorded finding that the
accident happened at the public place, Shri Chapalgaonkar, the learned
Counsel further relied on judgment of Kerala High Court in the case of
Rajan P. Pullan Vs. K.J. John & others, reported in 2010(1) ALL MR
(Journal) 16, and contended that public place for the purpose of the MV
Act has to be understood with reference to the place to which vehicle has
access. Shri Chapalgaonkar, the learned Counsel further relied on
judgments of the Hon'ble Apex Court in the case of (I) Santosh Devi Vs.
National Insurance Company Ltd. & others, reported in 2012(3) Bom. C.R.
698; (II) Rajesh & others Vs. Rajbir Singh & others, reported in 2013(9)
SCC 54 and (III) Asha Verman Vs. Maharaj Singh, reported in 2015 AIR
(SCW) 3577.
9. As against this, Shri Upadhye, the learned Counsel appearing
for respondent no.2 - Insurance Company, argued that a petition under
Section 163A of the MV Act does not require pleadings regarding
negligence. Those pleadings were incorporated by claimants for
conversion of the claim to one under Section 166 of the MV Act.
According to Shri Upadhye, the learned Counsel, perusal of evidence on
record shows that no offence was registered against driver of the truck.
There was no FIR of the accident. What was filed was the report of
accidental death. In his submission, claimants have came up with contrary
pleadings in both the proceedings and have adduced contrary evidence on
two stages of the same proceedings. As such, they cannot be allowed to
approbate and reprobate. Shri Upadhye, the learned Counsel, further
argued that the learned Tribunal has corrected recorded the finding that
deceased Kalyan Kothi was a Munim working with one Dilip Munot and
was supervising the work of unloading. By pointing out evidence of Dilip
Kakade, Shri Upadhye, the learned Counsel argued that in his previous
deposition, there was no whisper that engine of the truck was in motion.
As such, he is not a witness of truth. Evidence of claimant Ashabai also
shows that deceased Kalyan Kothi was not inside the truck. According to
Shri Upadhye, the learned Counsel, the Tribunal has rightly relied on
Police papers in respect of the accident in entirety and concluded that the
accident had not happened because of any rash or negligent act attributable
to the driver of the vehicle. He placed reliance on judgment of the Hon'ble
Apex Court in the case of Minu B. Mehta & another Vs. Balkrishna
Ramchandra Nayan & another, reported in AIR 1977 SC 1248, and
submitted that claim under Section 166 of the MV Act can be sustained on
establishing wrongful act, neglect or default of driver of the offending
motor vehicle. Unless and until there is negligence of driver, owner
cannot be made liable on the basis of principle of vicarious liability and as
such, consequently the Insurance Company cannot be directed to
indemnify the owner. He faintly argued that the accident in question
occurred in the private premises of one Dilip Munot and therefore also,
Insurance Company cannot be fastened with any liability to pay
compensation.
10. With the assistance of the learned Counsel appearing for both
the parties, I have carefully perused pleadings of the parties as well as oral
evidence of Aashabai Kothi and Dilip Kakade. I have minutely gone
through the documentary evidence produced on record including Police
papers in respect of the accident in question.
11. Perusal of the impugned judgment and award of the learned
Chairman of the Motor Accident Claims Tribunal shows that the Tribunal
gave categorical finding while answering Issue No.1 in para 8 to the effect
that claimants have proved that on 9-9-2004, at about 6.30 p.m., the
accident took place while work of unloading of paved flooring stones from
the offending truck was going on and in that accident, Kalyan Kothi died.
Thus, we are having on record, finding of the Tribunal to the effect that
because of accident occurred while unloading the goods from the truck in
question, Kalyan Kothi died. This finding has become final because it is
neither challenged by owner as well as driver of the said truck nor by
respondent no.2 - Insurance Company. It is thus clear that accident
resulting the death of Kalyan Kothi occurred arising out of use of the truck
in question. Evidence on record shows that labourers were loading and
unloading paved flooring stones from the said truck. As such, it goes
without saying that those labourers were using the truck for doing the
work of unloading the paved flooring stones. Undisputedly, because of
fall of paved flooring stones while unloading them from the truck, Kalyan
Kothi died. Even report of Accidental Death Case No. 40/2004 at Exhibit
15 lodged by Dilip Munot which is a contemporaneous document having
great probative value shows that while unloading the paved flooring stones
from the truck, two stones escaped from the truck and deceased Kalyan
Kothi was crushed under those stones. As such, it needs to be put on
record that claimants have proved the fact that on 9-9-2004, at Masrat
Nagar, Beed, Kalyan Kothi died because of accident arising out of use of
the truck bearing registration No. MH-15/AG-1870 owned by respondent
no.1, insured with respondent no.2 - Insurance Company while stones
were being unloaded. At this juncture, it is apposite to quote para No.35
from judgment in the case of Shivaji Dayanu Patil and another (supra)
which shows that casual relationship between the use of motor vehicle and
the accident resulting the death or permanent disablement is not required
to be direct and proximate. It can be less immediate. Para 35 of the said
judgment reads thus :-
“ This would show that as compared to the
expression "caused by", the expression "arising out
of" has a wider connection. The expression "caused
by" was used in Sections 95(1)(b)(i) and (ii) and
96(2)(b)(ii) of the Act. In S. 92-A, Parliament,
however, chose to use the expression "arising out
of" which indicates that for the purpose of
awarding compensation under Section 92-A, the
casual relationship between the use of the motor
vehicle and the accident resulting in death or
permanent disablement is not required to be direct
and proximate and it can be less immediate. This
would imply that accident should be connected with
the use of the motor vehicle but the said
connection need not be direct and immediate. This
construction of the expression "arising out of the
use of a motor vehicle" in Section 92-A enlarges
the field of protection made available to the
victims of an accident and is in consonance with
the beneficial object underlying the enactment. ”
As such, unchallenged finding of the Tribunal is in consonance with
evidence on record and shows that because of accident arising out of use
of the truck bearing registration No. MH-15/AG-1870, Kalyan Kothi died
on 9-9-2004.
12. Not, let us examine whether claimants proved that the
accident arising out of use of the said truck causing death of Kalyan Kothi
took place because of rash and negligent act on the part of driver of said
truck. At the cost of repetition, it is noted that the learned Tribunal
disbelieved evidence of claimant's witness Dilip Kakade, labourer who
was alleged eye witness to the accident in question with a reason that his
evidence is contrary to evidence adduced by him on earlier occasion when
the claim was under Section 163A of the MV Act. With similar reasons,
evidence of claimant Ashabai, though she was not an eye witness to the
accident, was disbelieved. The learned Tribunal observed that there are
material contradictions in evidence of these two witnesses and those shows
their tendency to depose falsely. It was also observed by the learned
Tribunal that if really the accident had happened because of rash and
negligent act on the part of driver of the truck, either claimants or Dilip
Kakade - Labourer ought to have lodged correct report to Police. This
observation was made by the learned Tribunal in the wake of its finding
that this accident has not resulted in registration of any crime and that only
report of Accidental Death case (Exhibit 15) was registered with Police by
Dilip Munot.
13. Let us examine what is standard of proof are applicable to the
summary proceedings for claiming compensation under the MV Act. In
the case in hand, after conversion of claim from Section 163A to Section
166 of the MV Act, undoubtedly claimants will have to prove that the
accident in question took place because of rash and negligent act of driver
of the said truck. Claim under Section 163A of the MV Act is based on
principle of no fault liability whereas, claim under Section 166 is based on
fault liability. Such claim of fault liability can be sustained for reason of a
fault, such as, wrongful act, neglect or default on the part of driver of the
offending vehicle. At this stage, one needs to keep in mind so far as
Section 163A is concerned, claimants in such proceedings are not required
to plead and prove that death or injury was caused due to any wrongful act
or neglect or default of the owner of the vehicle or any other person. In
claims under Section 163A, if accident is proved to have occurred arising
out of use of a motor vehicle, claimants are entitled for compensation as
per structured formula. This distinction will have to be kept in mind while
construing pleadings as well as evidence of parties because initially
claimants sought remedy under Section 163A of the MV Act and thereafter
with permission of this Court by making necessary amendment, claim
petition was converted into claim under Section 166 of the MV Act.
Initially as per beneficial provisions of Section 163A, they were not all
required to plead and establish death of Kalyan Kothi due to any wrongful
act, neglect or default and as such pleadings of claimants and their
evidence was in tune with such requirements of Section 163A of the MV
Act. However, upon conversion, claimants are undoubtedly required to
establish fault of the servant of the owner making the owner vicariously
liable. Shri Upadhye, the learned Counsel appearing for respondent -
Insurance Company rightly relied on ruling of the Hon'ble Apex Court in
the case of Minu B. Mehta & another (supra). Para 29 whereof reads thus :
“ A person is not liable unless he contravenes
any of the duties imposed on him by common law or by
the statute. In the case of a motor accident the
owner is only liable for negligence and on proof of
vicarious liability for the acts of his servant, the
necessity to provide effective means for
compensating the victims in motor accidents should
not blind us in determining the state of law as it
exists today. ”
14. Reverting back to the standard of proof in claim cases under
the MV Act, far back in the year 1977, in the case of Pushpabai
Purushottam Udeshi (supra), Hon'ble Apex Court has set out the standard
of proof in accident claims and held that if claimants proves the accident,
it will be for respondents to establish that the accident happened due to
some other cause than their own negligence. Applicability of principle of
res ipsa loquitur was considered and in para 6 of the judgment, it is held
thus :-
“ The normal rule is that it is for the
plaintiff to prove negligence but as in some cases
considerable hardship is caused to the plaintiff as
the true cause of the accident is not known to him
but is solely within the knowledge of the defendant
who caused it, the plaintiff can prove the accident
but cannot prove how it happened to establish
negligence on the part of the defendant. This
hardship is sought to be avoided by applying the
principle of res ipsa loquitur. The general purport
of the words res ipsa loquitur is that the accident
"speaks for itself" or tells its own story. There
are cases in which the accident speaks for itself so
that it is sufficient for the plaintiff to prove the
accident and nothing more. It will then be for the
defendant to establish that the accident happened
due to some other cause than his own negligence.
Salmond on the Law of Torts (15th Ed.) at p. 306
states : "The maxim res ipsa loquitur applies
whenever it is so improbable that such an accident
would have happened without the negligence of the
defendant that a reasonable jury could find without
further evidence that it was so caused". In
Halsbury's Laws of England, 3rd Ed., Vol. 28, at
page 77, the position is stated thus : "An exception
to the general rule that the burden of proof of the
alleged negligence is in the first instance on the
plaintiff occurs wherever the facts already
established are such that the proper and natural
inference arising from them is that the injury
complained of was caused by the defendant's
negligence, or where the event charged as negligence
'tells its own story' of negligence on the part of
the defendant, the story so told being clear and
unambiguous". Where the maxim is applied the burden
is on the defendant to show either that in fact he
was not negligent or that the accident might more
probably have happened in a manner which did not
connote negligence on his part. For the application
of the principle it must be shown that the case was
under the management of the defendant and that the
accident is such as in ordinary course of things
does not happen if those who had the management used
proper care. ........”
15. Point as to whether strict rules of pleading and evidence are
applicable to accident claims was considered by the Hon'ble Apex Court in
the case of N.K.V. Bros. (P) Ltd. V. M. Karumai Ammal, reported in
1980 ACJ 345 (SC). It is held therein that Accidents claims Tribunals
must take special care to see that innocent victims do not suffer and
drivers and owners do not escape liability merely because of some doubt
here or some obscurity there. Save in plain cases, culpability must be
inferred from the circumstances where it is fairly reasonable. It is further
held that the Court should not succumb to niceties, technicalities and
mystic maybes. In the case of Ningamma & another (supra), Hon'ble Apex
Court has held thus in para 23 :-
“ Recently, this Court in the case of Raj Rani &
Ors. v. Oriental Insurance Co. Ltd. & Ors., [C.A.
Nos. 3317-3318 of 2009 @ SLP(C) Nos. 27792-27793 of
2008 pronounced on 06.05.2009], wherein one of us
(Hon'ble Justice S.B. Sinha) has taken the view
that it is not necessary in a proceeding under the
MVA to go by any rules of pleadings or evidence.
Section 166 of the MVA speaks about "Just
Compensation". The court's duty being to award
"Just Compensation", it will try to arrive at the
said finding irrespective of the fact as to whether
any plea in that behalf was raised by the claimant
or not. It was further observed in the aforesaid
case that although the multiplier specified in the
Second Schedule appended to the MVA are stricto
sensu not applicable in a case under Section 166 of
the MVA, it is not of much dispute that wherever
the court has to apply the appropriate multiplier
having regard to several factors in mind. The
Court has placed reliance on earlier judgment of
this court in Nagappa v. Gurudayal & Ors., (2003) 2
SCC 274, wherein it was observed as follows in para
7 :
“ 7. Firstly, under the provisions of the
Motor Vehicles Act, 1988, (hereinafter
referred to as "the MV Act") there is no
restriction that compensation could be awarded
only up to the amount claimed by the claimant.
In an appropriate case, where from the
evidence brought on record if the Tribunal /
court considers that the claimant is entitled
to get more compensation than claimed, the
Tribunal may pass such award. The only
embargo is -- it should be "just"
compensation, that is to say, it should be
neither arbitrary, fanciful nor unjustifiable
from the evidence. This would be clear by
reference to the relevant provisions of the MV
Act. Section 166 provides that an application
for compensation arising out of an accident
involving the death of, or bodily injury to,
persons arising out of the use of motor
vehicles, or damages to any property of a
third party so arising, or both, could be made
(a) by the person who has sustained the
injury; or (b) by the owner of the property;
or (c) where death has resulted from the
accident, by all or any of the legal
representatives of the deceased; or (d) by any
agent duly authorised by the person injured or
all or any of the legal representatives of the
deceased, as the case may be. Under the
proviso to sub-section (1), all the legal
representatives of the deceased who have not
joined as the claimants are to be impleaded as
respondents to the application for
compensation. The other important part of the
said section is sub-section (4) which provides
that "the Claims Tribunal shall treat any
report of accidents forwarded to it under subsection
(6) of Section 158 as an application
for compensation under this Act". Hence, the
Claims Tribunal in an appropriate case can
treat the report forwarded to it as an
application for compensation even though no
such claim is made or no specified amount is
claimed. ”
16. It is thus clear that in proceedings under the MV Act, where
procedure is a summary procedure, there is no need to go by strict rules of
pleading or evidence. Document having some probative value, the
genuineness of which is not in doubt can be looked into by the Tribunal
for getting preponderance of probable versions. As such, it is by now well
settled that even FIR or Police papers, when made part of claim petition
can be looked into for giving a finding in respect of happening of the
accident and for reaching conclusion about negligence. In other words,
evidence of claimants is required to be examined in broader probabilities
of their case, in order to achieve object of social welfare legislation. As
held in the matter of Bimla Devi & others (supra), preponderance of
probabilities is the touchstone for arriving at a conclusion regarding
rashness and negligence as well as mode and manner of happening of the
accident.
17. Let us scan evidence of claimants keeping in mind the
principles of appreciation of evidence in accident claims in order to
determine whether accidental death of Kalyan Kothi is attributable to rash
and negligent act on the part of driver of the truck. Brief resume of
contemporaneous document at Exhibit 15 i.e. report dated 9-9-2004 of
Accidental Death case No. 40/2004 lodged by Dilip Munot shows that
construction work of his new house was going on and the deceased was
supervising that work. This report further shows that the truck came at site
with paved flooring stones. Deceased Kalyan Kothi called 4 - 5 Hamals
and started the work of unloading. The report of Accidental Death case
further shows that deceased Kalyan Kothi was helping Hamals when all of
a sudden two stones escaped from the truck and the deceased was crushed
beneath them. This document makes it clear that deceased Kalyan Kothi
had also undertaken the work of unloading stones along with Hamals
(Labourers).
18. Another contemporaneous document is the spot Panchanama
recorded on the day of accident itself. It is at Exhibit 16. Perusal of spot
Panchanama shows that along with other labourers, Dilip Kakade was also
doing the work of unloading the stones. In fact, this Dilip Kakade had
shown the exact spot of occurrence to Police. Claimants have examined
none else than this witness in order to prove rash and negligent act of the
driver of the truck. Presence of Dilip Kakade on the spot at the time of
accident is established from the contemporaneous document of ante litem
motam nature available on record.
19. Before going to the evidence of Dilip Kakade, let us keep in
mind the position of pleadings of parties. Though not required even in
their claim under Section 163A, claimants had averred that driver of the
truck failed to take proper care while parking the truck and loading and
unloading of goods therefrom. In its both written statements, respondent -
Insurance Company showed ignorance about the mode and manner of
happening of the accident. Para 9 of the written statement dated 17-7-
2009 makes this aspect clear.
20. Evidence of Dilip Kakade prior to remand is at Exhibit 22.
Para 4 from this evidence reads thus :-
“ That, the driver of truck was not parked
vehicle properly. It was in ascending position.
While unloading it, suddenly truck came in
reverse direction and paved flooring stones
escaped from truck and crushed the deceased.
Alleged accident occurred due to negligence of
truck driver. Hence truck driver is responsible
for the accident and death of deceased Kalyan
Kothi. ”
Thus, even in claim under Section 163A of the MV Act, this was the
version of the eye witness about the actual incident.
21. After remand and conversion of the claim to one under
Section 166 of the MV Act, again evidence on affidavit of Dilip Kakade is
tendered by claimants at Exhibit 48. This witness maintained his earlier
version in chief examination but with little more details as the claim was
converted to the fault liability. After remand, it is seen from the evidence
of this witness that when the work of unloading stones from the truck was
going on, all of a sudden there was forceful jerk to the truck and it came in
reverse direction. The truck was at the ascending position and its engine
was in working position. This witness Dilip Kakade further stated that
because of jerk to the truck, stones from the truck escaped and crushed
Kalyan Kothi.
22. Witness Dilip Kakade was subjected to searching cross
examination by respondent - Insurance Company on both occasion. It was
elicited from his cross examination that he was not working on the truck of
respondent no.1 as coolie and was not travelling in it. However, this
material cannot be construed to mean that witness Dilip Kakade was not
unloading stones from that truck. What he meant thereby was that he was
not regularly employed as labourer with the owner of the said truck. He
had merely undertaken the task of unloading the stones along with other
labourers. Even otherwise presence of this witness on the spot is vouched
from the Police papers.
23. The learned Tribunal disbelieved witness Dilip Kakade with a
reason that his evidence prior to remand does not disclose that engine of
the truck was in working condition whereas after remand, he has stated
that engine of the truck was in motion when it was in parked condition.
This was considered to be a material contradiction in his version in order
to discard the same.
24. In my view, the learned Tribunal committed grave error in
appreciation of evidence of eye witness Dilip Kakade. His evidence even
prior to remand when the claim was under Section 163A was crystal clear
to attribute rash and negligent act to the driver of the said truck. His
unshattered testimony at Exhibit 22 prior to remand of the case is to the
effect that while he along with deceased Kalyan Kothi and 3 - 4 other
labourers were unloading the stones from the truck, the accident occurred
due to negligence of the truck driver. At that time, witness Dilip Kakade
has categorically stated that driver of the truck did not park the truck
properly and it was parked in ascending position. Witness Dilip Kakade at
Exhibit 22 has clearly stated that the truck suddenly came in reverse
direction because of which while unloading, stones escaped from the truck
and crushed deceased Kalyan Kothi. On second occasion after remand at
Exhibit 48, same version of witness Dilip Kakade came on record. In
addition, he has just stated that engine of the truck was in on condition at
the time of the accident. Even if this fact is omitted from the version of
Dilip Kakade, then also, inescapable conclusion is that, the accident
happened because of rash and negligent act of the driver of the truck in
parking it in ascending position while unloading the stones thereby
causing the accident. Because of parking in ascending direction, with a
jerk, the truck came in reverse direction while work of unloading of stones
was going on causing the accidental death of Kalyan Kothi. As a prudent
driver, considering the nature of loaded goods i.e. paved stone tiles and
keeping in mind that those were required to be unloaded, driver of the
truck ought not to have parked it in ascending position so as to cause its
reverse journey due to jerk caused while unloading of goods. Reasonable
inference which follows from this evidence is that the truck might have
shaken in the process of unloading the goods causing slip of gear to
neutral position. The truck therefore came in reverse direction as it was
parked in ascending position.
25. There is one more angle to view and assess evidence of Dilip
Kakade. True it is, that in his evidence recorded on 23-2-2007, he had not
mentioned that engine of the truck was in motion while it was parked. At
the time of his cross examination when he entered in the witness box on
second occasion after remand, his attention was not drawn to his previous
statement recorded on 23-2-2007. On second occasion, when Dilip
Kakade entered in the witness box to face cross examination, his
explanation was not sought on this aspect by confronting him with his
earlier recorded evidence dated 23-2-2007. Probably he might have come
up with some explanation for this inconsequential omission in his earlier
testimony. Unless and until such opportunity was accorded to witness
Dilip Kakade, the learned Tribunal ought not to have branded him as a
witness having tendency to depose falsely. This is particularly so when
this statement of witness came on record after conversion of the petition to
one under the fault liability. Considering the overall consistent version of
Dilip Kakade on both occasion, non-disclosure of the fact that engine of
the truck was kept in on condition when it was parked, does not amount to
material improvement in version of Dilip Kakade so as to discard his
entire evidence. Overall scrutiny of evidence of labourer Dilip Kakade
undoubtedly shows that the accident happened because of rash and
negligent act on the part of driver of the truck in not parking the same at
safe position in order to enable the labourers to undertake the work of
unloading safely. The truck driver has not taken reasonable care expected
from a person of ordinary prudence is parking it.
26. Claimants had examined claimant Ashabai - widow who is
undoubtedly not an eye witness to the accident in question. The learned
Tribunal also noted this fact and concluded that her evidence about alleged
rash and negligent act of the driver is of no use. However, she was also
branded as a witness having tendency to depose falsely as in her evidence
after remand, she has additionally stated that there was sudden jerk to the
truck which was parked in ascending position. Evidence of claimant
Ashabai is not relevant for determining mode and manner of happening of
the accident.
27. The learned Tribunal discarded version of witness Dilip
Kakade on the ground that because report was of accidental death, either
claimants or said Dilip Kakade ought to have lodged another report
reflecting correct facts to Police. At this juncture, it needs to be observed
that the learned Tribunal totally lost sight of standard of appreciation of
evidence in claims under welfare legislation. In a case at hand, claimants
and particularly widow is a rustic woman. Witness Dilip Kakade is a
labourer doing the work of loading and unloading trucks. They cannot be
said to be aware about the niceties of law and procedure. One needs to
keep in mind that even well to do person shies of approaching Police. As
such, non-lodging the FIR by either claimants or witness Dilip Kakade is
of no consequence.
28. The finding of the learned Tribunal to the effect that claimants
failed to prove rash and negligent act on the part of driver is wholly
perverse. The learned Tribunal went beyond the evidence on record while
determining this aspect. The learned Tribunal by travelling beyond the
evidence, recorded perverse finding to the effect that deceased Kalyan
Kothi was not habitual to do the work of Porter and he must not be having
any experience of such work. The learned Tribunal further recorded the
finding that probably because of negligence of deceased Kalyan Kothi the
accident took place. The learned Tribunal further inferred that the accident
might have taken place because of negligence of deceased Kalyan Kothi in
handing over paved flooring stones to other labourers. Such inferential
findings are without there being any such evidence on record and result of
surmises and conjunctures.
29. As against truthful and trustworthy eye witness account of
rash and negligent act on the part of driver of the truck coming on record
from the mouth of witness Dilip Kakade, respondents have chosen not to
enter into witness box. Owner and driver of the truck did not participate in
the proceedings. Respondent no.2 - Insurance Company did not examine
driver of the said truck in order to bring on record that the accident
happened due to some other cause than his own negligence. In this factual
backdrop, by accepting evidence of claimant's witness Dilip Kakade which
is duly corroborated by contemporaneous Police papers such as report of
Accidental Death case and spot Panchanama, it needs to be held that the
accident in question happened because of rash and negligent act of driver
of the said truck. Resultantly, claimants being dependent legal
representatives of deceased Kalyan Kothi are entitled for compensation.
30. The learned Tribunal while answering Issue No.4 has
undergone the task of assessment of compensation to which claimants are
entitled. Appellants / claimants are not disputing the quantum of
compensation assessed by the learned Tribunal while answering Issue Nos.
3 and 4 by this appeal. As such, said assessment of compensation payable
to appellants / claimants has attained finality. Claimants are found to be
entitled for total compensation of Rs. 3,21,000/- by the learned Tribunal.
It is not in dispute that the truck involved in the accident was duly insured
with respondent no.2 - Insurance Company.
31. Considering the fact that claim under Section 163A was
subsequently converted to one under Section 166 of the MV Act, the
learned Tribunal held that claimants are entitled for interest from 2-2-2009
i.e. from the date when by effecting amendment the claim was converted
to one under ‘fault liability’. This is perfectly in consonance with
observations of this Court while deciding First Appeal No. 979 of 2007.
Discretion of awarding interest from the date of conversion of the claim
does not appear to be arbitrary. It is perfectly reasonable and according to
law. However, the learned Tribunal erred in assessing the rate of interest
at the rate of 7 % per annum. Considering all relevant aspects, Hon'ble
Apex Court in the cases of Amresh Kumari Vs. Niranjan Lal Jagdish PD.
Jain & others, reported in 2015(4) SCC 433 and Mohinder Kaur & others Vs.
Hira Nand Sindhi (Ghoriwala) & another, reported in 2015(4) SCC 434,
awarded interest at the rate of 9 % per annum for compensation payable.
Hence, I hold that present appellants / original claimants are also entitled
for interest at the same rate.
32. In the result, the appeal is allowed.
(a) Impugned judgment and award is modified by holding that on proof
of rash and negligent act of driver of the truck causing death of Kalyan
Kothi, claimants are entitled for compensation of Rs. 3,21,000/- along with
interest at the rate of 9 % per annum from 2-2-2009 till realization of the
entire amount of compensation.
(b) Accordingly, it is directed that respondents do jointly as well as
severally pay compensation amounting to Rs. 3,21,000/- with interest at
the rate of 9 % per annum from 2-2-2009 till realization of amount to
claimants. The amount of compensation, if any paid to claimants earlier,
shall be adjusted as on the date of payment.
(c) Appellants / claimants are entitled for equal share in the amount of
compensation.
33. The First Appeal is disposed of accordingly.
( A.M. BADAR )
JUDGE
AURANGABAD BENCH, AT AURANGABAD.
First Appeal No. 257 of 2010
Ashabai w/o. Kalyan Kothi,
versus
Baban s/o. Santosh Bidgar,
CORAM : A.M. BADAR, J.
Date of pronouncing the
judgment : 5th December 2015.
1. By this appeal under Section 173(1) of the Motor Vehicles
Act, 1988 [For short, hereinafter referred to as “MV Act”], appellants /
original claimants are challenging the judgment and award dated 3-11-
2009, passed by the learned Chairman, Motor Accident Claims Tribunal,
Beed, in M.A.C.P. No. 138/2005, thereby rejecting claim for compensation
led by appellants / original claimants on account of death of Kalyan Kothi
in the alleged vehicular accident which took place on 9-9-2004 at Masrat
Nagar, Beed. Respondent no.1 is the owner of the truck allegedly
involved in the said accident; respondent no.2 is its insurer whereas
respondent no.3 was allegedly working as driver on the said truck on the
date of the accident. For the sake of convenience, parties shall be referred
to in their original capacity.
2. Brief facts leading to the institution of the present appeal can
be summarized thus :-
(a) Initially claimants who are dependent legal representatives of
deceased Kalyan Kothi filed the petition under Section 163A of the MV
Act, claiming compensation on account of death of Kalyan Kothi as per
structured formula contending that he died because of accident arising out
use of motor vehicle i.e. truck bearing registration No. MH-15/AG-1870
[For short, hereinafter referred to as “the truck”] owned by respondent
no.1, insured with respondent no.2 and driven by respondent no.3 at the
relevant time. It was alleged therein that deceased Kalyan Kothi was
earning monthly income of Rs. 4,000/-. After due trial, the learned
Member of the Motor Accident Claims Tribunal, Beed, initially on 30-3-
2007 allowed that claim petition and directed respondents to pay
compensation amounting to Rs. 3,91,000/- to claimants on the basis of
structured formula.
(b) Respondent no.2 - Insurance Company carried that award in appeal
bearing First Appeal No. 979 of 2007. This Court by judgment and order
dated 19-6-2008 was pleased to allow that appeal by holding that the
social security provision as envisaged in Section 163A of the MV Act is
available for a distinct class of persons whose annual income is restricted
to Rs. 40,000/-. It was held that the persons of that category can only take
benefit of said social security provision which was enacted by the
legislature with the specific object of providing a speedy and effective
remedy to that particular class of persons. As income of deceased was
pleaded to be Rs. 48,000/- per annum, this Court quashed and set aside the
impugned judgment and award dated 30th March 2007 and remanded the
claim petition with a permission to convert the claim under Section 163A
into a claim petition under Section 166 of the MV Act. The operative part
of the said judgment and order needs re-production and it reads thus :-
“19. Hence I pass the following order :
(i) The impugned judgment and award dated 30th
March 2007 is quashed and set aside and M.A.C.P. No.
138/05 is restored.
(ii) On an application being made by the claimants,
the learned Member of the Tribunal will allow the claimants
to carry out necessary amendments to the claim petition
for converting the claim petition into a claim petition under
Section 166 of the Motor Vehicles Act, 1988.
(iii) It will be open for the respondents in the claim
petition to file their written statements or to file
supplementary written statements by adopting the earlier
written statements which are already on record.
(iv) The claim petition shall be decided expeditiously.
(v) All contentions of the parties including various
contentions raised by the appellant in this appeal are kept
open.
(vi) The appeal is partly allowed in above terms with no
orders as to costs.
(vii) In view of this judgment, it will be open for the
appellant to withdraw the sums of Rs. 25,000/ and rs.
4,68,624/ deposited in this Court.
(viii) Pending civil applications are disposed of. ”
(c) After remand, claimants were allowed to effect necessary
amendments to the claim petition under orders of this Court for converting
the claim petition under Section 163A of the MV Act into a claim petition
under Section 166 of the MV Act. Consequently, respondent no.2 -
Insurance Company also filed additional written statement. At this
juncture, it needs to mention here that respondent no.1 - owner and
respondent no.3 - driver remained absent before the learned Tribunal.
3. Facts in brief necessary for deciding the present appeal are
thus :-
(i) According to claimants, Kalyan Kothi (since deceased) was 40 years
of age at the time of his accidental death. He was doing labour work by
loading and unloading the goods from trucks. Apart from this, he was also
engaged as ‘Munim’ (Accountant) in spare time with one Dilip Munot.
Deceased was earning Rs. 4,000/- per month by working as labourer and
Munim. Apart from this, the deceased was earning Rs. 12,000/- per
annum from supervising the agricultural land possessed by his family.
(ii) It is case of claimants that on 9-9-2004, deceased Kalyan Kothi was
engaged in loading and unloading paved flooring stones from the truck.
While unloading, due to a sudden jerk, paved flooring stones escaped from
the truck and crushed Kalyan Kothi. The said truck was parked in
ascending position with its engine in working condition. The accident
happened as with a jerk the truck came in reverse direction causing fall of
paved flooring stones from it by which deceased Kalyan Kothi was
injured. Hence, according to claimants, the accident occurred due to
negligence of driver of the said truck. Kalyan Kothi was declared dead at
Phoenix Critical Care Centre, Beed. Report of this accident was lodged
by Dilip Munot with the concerned Police Station and consequently
necessary formalities were done by the Police. With these averments,
claimants prayed for directing respondents to pay compensation of Rs.
4,00,000/-.
(iii) At this juncture, it is apposite to note that right from initial stage i.e.
their lodging the claim under Section 163A of the MV Act, it was pleading
of claimants and more particularly in para 2 of the petition that driver of
the said truck failed to take proper care while parking the same as well as
while loading and unloading the goods.
(iv) Respondent no.2 - Insurance Company initially filed written
statement at Exhibit 10 and denied the factum of accident, hospitalization
and death of Kalyan Kothi. Income of the deceased as well as mode and
manner of the accident was also denied for want of knowledge. The
Insurance Company contended that the Police registered accidental death
case and no offence was lodged against the driver of the said truck for rash
and negligent act. Hence according to respondent no.2, the incident was
merely a mishap. It was further pleaded that the truck was not at public
place and it was parked in the premises of house.
(v) After remand, respondent no.2 - Insurance Company filed additional
written statement at Exhibit 43 and again denied the accident as well as
averments of claimants that deceased Kalyan Kothi was engaged in
loading and unloading paved flooring stones. It also denied the alleged
fact that Kalyan Kothi died due to fall of paved flooring stones. For want
of knowledge, respondent - Insurance Company also denied alleged
carelessness on the part of the driver in parking the truck in ascending
position with engine in working condition. Respondent - Insurance
Company pleaded that Police papers in respect of accident shows that no
crime was registered against the driver. The truck was in private premises.
It was stationery and driver was not on its wheels. The mishap did not
arise out of use of the motor vehicle. The Insurance Company further
contended that remedy of claimants is under the Employee's
Compensation Act against his employer Dilip Munot. The Insurance
Company further averred that driver of the said truck was not holding
valid driving license.
(vi) The learned Tribunal based on rival pleadings framed issues at
Exhibit 44 and the parties went for trial. It needs to be noted here that
initially claimants had adduced evidence of claimant no.1 Ashabai Kothi
(widow) at Exhibit 13 and also adduced evidence of Dilip Kakade
(Labourer doing the work of unloading paved flooring stones at the time of
happening of the accident) at Exhibit 22. After remand of the case,
claimants tendered additional evidence on affidavit of claimant no.1
Ashabai at Exhibit 45 as well as that of Dilip Kakade at Exhibit 48.
Parties continued to rely on certified copies of Police papers in respect of
the accident in question.
4. After hearing the parties, by the impugned judgment and
award, the learned Tribunal was pleased to hold that claimants proved that
the accident took place on 9-9-2004 due to involvement of the truck
bearing registration No. MH-15/AG-1870 causing death of Kalyan Kothi.
However, the learned Tribunal further held that claimants failed to prove
that the said accident took place because of rash and negligent act on the
part of driver of the said truck. The learned Tribunal then assessed the
compensation at Rs. 3,21,500/- but concluded that claimants are not
entitled for any compensation as they failed to prove that the accident
occurred because of rash and negligent act on the part of driver of the said
truck. Accordingly, the claim petition came to be dismissed by the
impugned judgment and award dated 3-11-2009.
5. Heard Shri Chapalgaonkar, the learned Counsel appearing for
appellants / claimants. In his submission, claim under Section 166 of the
MV Act can be awarded if claimants are successful in proving the fact that
death occurred out of the use of motor vehicle. According to him, the
casual relationship between use of motor vehicle and the accident resulting
the death is not required to be direct and proximate but it can be less
immediate. He relied on judgment of the Hon'ble Apex Court in the case
of Shivaji Dayanu Patil and another Vs. Smt. Vatschala Uttam More,
reported in AIR 1991 SC 1769, to buttress this contention.
6. Shri Chapalgaonkar, the learned Counsel appearing for
appellants, further argued that it is not necessary to go by any rules of
pleading or evidence in the proceedings under the MV Act. Strict rules of
pleading and evidence are not applicable to such summary proceedings. In
support of this contention, he relied on judgment of the Hon'ble Apex
Court in the case of Ningamma & another Vs. United India Insurance Co.
Ltd., reported in 2009 AIR (SCW) 4916 and contended that the learned
Tribunal committed grave error in concluding that evidence adduced by
claimant Ashabai and witness Dilip Kakade is contrary to their evidence
given earlier in point of time when the claim under Section 163A of the
MV Act was made. Shri Chapalgaonkar, the learned Counsel further
argued that the learned Tribunal committed further error by holding that
claimants had not specifically pleaded main avocation of the deceased as
Porter with separate earning from private service. According to Shri
Chapalgaonkar, the learned Counsel, going by strict rules of pleading, the
learned Tribunal erred in holding that claimants came up with false case
that the deceased was doing work as Porter. He has relied upon judgment
of the Hon'ble Apex Court in the case of Bimla Devi & others Vs. Himachal
Road Transport Corporation & others, reported 2009 AIR (SCW) 4298. Shri
Chapalgaonkar, the learned Counsel further argued that the learned
Tribunal unnecessarily entered into the controversy as to what work the
deceased was doing when the main issue before the learned Tribunal was
whether the accident arose on account of use of motor vehicle in which
deceased Kalyan Kothi died and whether it happened because of rash and
negligent act attributable to the driver of the truck.
7. Shri Chapalgaonkar, the learned Counsel appearing for
appellants, further argued that by applying principle of res ipsa loquitur,
the learned Tribunal recorded the finding that deceased Kalyan Kothi was
standing on the ground and helping Porters for unloading paved flooring
stones when those fell on his person. With such finding, the learned
Tribunal ought to have upheld the contention of claimants that the accident
occurred because of rash and negligent act on the part of driver of the
truck. In his submission, it was for respondents to demonstrate how the
accident had happened as claimants had proved the factum of accident. As
respondents failed to establish that driver of the truck was not negligent,
the learned Tribunal ought not to have recorded a finding that claimants
failed to establish rash and negligent act on the part of the driver. In
support of this submission, Shri Chapalgaonkar, the learned Counsel relied
on judgment of the Hon'ble Apex Court in the case of Pushpabai
Purushottam Udeshi Vs. Ranjit Ginning and Pressing Company Private
Limited, reported in 1977 AIR (SC) 1735.
8. Though the learned Tribunal had recorded finding that the
accident happened at the public place, Shri Chapalgaonkar, the learned
Counsel further relied on judgment of Kerala High Court in the case of
Rajan P. Pullan Vs. K.J. John & others, reported in 2010(1) ALL MR
(Journal) 16, and contended that public place for the purpose of the MV
Act has to be understood with reference to the place to which vehicle has
access. Shri Chapalgaonkar, the learned Counsel further relied on
judgments of the Hon'ble Apex Court in the case of (I) Santosh Devi Vs.
National Insurance Company Ltd. & others, reported in 2012(3) Bom. C.R.
698; (II) Rajesh & others Vs. Rajbir Singh & others, reported in 2013(9)
SCC 54 and (III) Asha Verman Vs. Maharaj Singh, reported in 2015 AIR
(SCW) 3577.
9. As against this, Shri Upadhye, the learned Counsel appearing
for respondent no.2 - Insurance Company, argued that a petition under
Section 163A of the MV Act does not require pleadings regarding
negligence. Those pleadings were incorporated by claimants for
conversion of the claim to one under Section 166 of the MV Act.
According to Shri Upadhye, the learned Counsel, perusal of evidence on
record shows that no offence was registered against driver of the truck.
There was no FIR of the accident. What was filed was the report of
accidental death. In his submission, claimants have came up with contrary
pleadings in both the proceedings and have adduced contrary evidence on
two stages of the same proceedings. As such, they cannot be allowed to
approbate and reprobate. Shri Upadhye, the learned Counsel, further
argued that the learned Tribunal has corrected recorded the finding that
deceased Kalyan Kothi was a Munim working with one Dilip Munot and
was supervising the work of unloading. By pointing out evidence of Dilip
Kakade, Shri Upadhye, the learned Counsel argued that in his previous
deposition, there was no whisper that engine of the truck was in motion.
As such, he is not a witness of truth. Evidence of claimant Ashabai also
shows that deceased Kalyan Kothi was not inside the truck. According to
Shri Upadhye, the learned Counsel, the Tribunal has rightly relied on
Police papers in respect of the accident in entirety and concluded that the
accident had not happened because of any rash or negligent act attributable
to the driver of the vehicle. He placed reliance on judgment of the Hon'ble
Apex Court in the case of Minu B. Mehta & another Vs. Balkrishna
Ramchandra Nayan & another, reported in AIR 1977 SC 1248, and
submitted that claim under Section 166 of the MV Act can be sustained on
establishing wrongful act, neglect or default of driver of the offending
motor vehicle. Unless and until there is negligence of driver, owner
cannot be made liable on the basis of principle of vicarious liability and as
such, consequently the Insurance Company cannot be directed to
indemnify the owner. He faintly argued that the accident in question
occurred in the private premises of one Dilip Munot and therefore also,
Insurance Company cannot be fastened with any liability to pay
compensation.
10. With the assistance of the learned Counsel appearing for both
the parties, I have carefully perused pleadings of the parties as well as oral
evidence of Aashabai Kothi and Dilip Kakade. I have minutely gone
through the documentary evidence produced on record including Police
papers in respect of the accident in question.
11. Perusal of the impugned judgment and award of the learned
Chairman of the Motor Accident Claims Tribunal shows that the Tribunal
gave categorical finding while answering Issue No.1 in para 8 to the effect
that claimants have proved that on 9-9-2004, at about 6.30 p.m., the
accident took place while work of unloading of paved flooring stones from
the offending truck was going on and in that accident, Kalyan Kothi died.
Thus, we are having on record, finding of the Tribunal to the effect that
because of accident occurred while unloading the goods from the truck in
question, Kalyan Kothi died. This finding has become final because it is
neither challenged by owner as well as driver of the said truck nor by
respondent no.2 - Insurance Company. It is thus clear that accident
resulting the death of Kalyan Kothi occurred arising out of use of the truck
in question. Evidence on record shows that labourers were loading and
unloading paved flooring stones from the said truck. As such, it goes
without saying that those labourers were using the truck for doing the
work of unloading the paved flooring stones. Undisputedly, because of
fall of paved flooring stones while unloading them from the truck, Kalyan
Kothi died. Even report of Accidental Death Case No. 40/2004 at Exhibit
15 lodged by Dilip Munot which is a contemporaneous document having
great probative value shows that while unloading the paved flooring stones
from the truck, two stones escaped from the truck and deceased Kalyan
Kothi was crushed under those stones. As such, it needs to be put on
record that claimants have proved the fact that on 9-9-2004, at Masrat
Nagar, Beed, Kalyan Kothi died because of accident arising out of use of
the truck bearing registration No. MH-15/AG-1870 owned by respondent
no.1, insured with respondent no.2 - Insurance Company while stones
were being unloaded. At this juncture, it is apposite to quote para No.35
from judgment in the case of Shivaji Dayanu Patil and another (supra)
which shows that casual relationship between the use of motor vehicle and
the accident resulting the death or permanent disablement is not required
to be direct and proximate. It can be less immediate. Para 35 of the said
judgment reads thus :-
“ This would show that as compared to the
expression "caused by", the expression "arising out
of" has a wider connection. The expression "caused
by" was used in Sections 95(1)(b)(i) and (ii) and
96(2)(b)(ii) of the Act. In S. 92-A, Parliament,
however, chose to use the expression "arising out
of" which indicates that for the purpose of
awarding compensation under Section 92-A, the
casual relationship between the use of the motor
vehicle and the accident resulting in death or
permanent disablement is not required to be direct
and proximate and it can be less immediate. This
would imply that accident should be connected with
the use of the motor vehicle but the said
connection need not be direct and immediate. This
construction of the expression "arising out of the
use of a motor vehicle" in Section 92-A enlarges
the field of protection made available to the
victims of an accident and is in consonance with
the beneficial object underlying the enactment. ”
As such, unchallenged finding of the Tribunal is in consonance with
evidence on record and shows that because of accident arising out of use
of the truck bearing registration No. MH-15/AG-1870, Kalyan Kothi died
on 9-9-2004.
12. Not, let us examine whether claimants proved that the
accident arising out of use of the said truck causing death of Kalyan Kothi
took place because of rash and negligent act on the part of driver of said
truck. At the cost of repetition, it is noted that the learned Tribunal
disbelieved evidence of claimant's witness Dilip Kakade, labourer who
was alleged eye witness to the accident in question with a reason that his
evidence is contrary to evidence adduced by him on earlier occasion when
the claim was under Section 163A of the MV Act. With similar reasons,
evidence of claimant Ashabai, though she was not an eye witness to the
accident, was disbelieved. The learned Tribunal observed that there are
material contradictions in evidence of these two witnesses and those shows
their tendency to depose falsely. It was also observed by the learned
Tribunal that if really the accident had happened because of rash and
negligent act on the part of driver of the truck, either claimants or Dilip
Kakade - Labourer ought to have lodged correct report to Police. This
observation was made by the learned Tribunal in the wake of its finding
that this accident has not resulted in registration of any crime and that only
report of Accidental Death case (Exhibit 15) was registered with Police by
Dilip Munot.
13. Let us examine what is standard of proof are applicable to the
summary proceedings for claiming compensation under the MV Act. In
the case in hand, after conversion of claim from Section 163A to Section
166 of the MV Act, undoubtedly claimants will have to prove that the
accident in question took place because of rash and negligent act of driver
of the said truck. Claim under Section 163A of the MV Act is based on
principle of no fault liability whereas, claim under Section 166 is based on
fault liability. Such claim of fault liability can be sustained for reason of a
fault, such as, wrongful act, neglect or default on the part of driver of the
offending vehicle. At this stage, one needs to keep in mind so far as
Section 163A is concerned, claimants in such proceedings are not required
to plead and prove that death or injury was caused due to any wrongful act
or neglect or default of the owner of the vehicle or any other person. In
claims under Section 163A, if accident is proved to have occurred arising
out of use of a motor vehicle, claimants are entitled for compensation as
per structured formula. This distinction will have to be kept in mind while
construing pleadings as well as evidence of parties because initially
claimants sought remedy under Section 163A of the MV Act and thereafter
with permission of this Court by making necessary amendment, claim
petition was converted into claim under Section 166 of the MV Act.
Initially as per beneficial provisions of Section 163A, they were not all
required to plead and establish death of Kalyan Kothi due to any wrongful
act, neglect or default and as such pleadings of claimants and their
evidence was in tune with such requirements of Section 163A of the MV
Act. However, upon conversion, claimants are undoubtedly required to
establish fault of the servant of the owner making the owner vicariously
liable. Shri Upadhye, the learned Counsel appearing for respondent -
Insurance Company rightly relied on ruling of the Hon'ble Apex Court in
the case of Minu B. Mehta & another (supra). Para 29 whereof reads thus :
“ A person is not liable unless he contravenes
any of the duties imposed on him by common law or by
the statute. In the case of a motor accident the
owner is only liable for negligence and on proof of
vicarious liability for the acts of his servant, the
necessity to provide effective means for
compensating the victims in motor accidents should
not blind us in determining the state of law as it
exists today. ”
14. Reverting back to the standard of proof in claim cases under
the MV Act, far back in the year 1977, in the case of Pushpabai
Purushottam Udeshi (supra), Hon'ble Apex Court has set out the standard
of proof in accident claims and held that if claimants proves the accident,
it will be for respondents to establish that the accident happened due to
some other cause than their own negligence. Applicability of principle of
res ipsa loquitur was considered and in para 6 of the judgment, it is held
thus :-
“ The normal rule is that it is for the
plaintiff to prove negligence but as in some cases
considerable hardship is caused to the plaintiff as
the true cause of the accident is not known to him
but is solely within the knowledge of the defendant
who caused it, the plaintiff can prove the accident
but cannot prove how it happened to establish
negligence on the part of the defendant. This
hardship is sought to be avoided by applying the
principle of res ipsa loquitur. The general purport
of the words res ipsa loquitur is that the accident
"speaks for itself" or tells its own story. There
are cases in which the accident speaks for itself so
that it is sufficient for the plaintiff to prove the
accident and nothing more. It will then be for the
defendant to establish that the accident happened
due to some other cause than his own negligence.
Salmond on the Law of Torts (15th Ed.) at p. 306
states : "The maxim res ipsa loquitur applies
whenever it is so improbable that such an accident
would have happened without the negligence of the
defendant that a reasonable jury could find without
further evidence that it was so caused". In
Halsbury's Laws of England, 3rd Ed., Vol. 28, at
page 77, the position is stated thus : "An exception
to the general rule that the burden of proof of the
alleged negligence is in the first instance on the
plaintiff occurs wherever the facts already
established are such that the proper and natural
inference arising from them is that the injury
complained of was caused by the defendant's
negligence, or where the event charged as negligence
'tells its own story' of negligence on the part of
the defendant, the story so told being clear and
unambiguous". Where the maxim is applied the burden
is on the defendant to show either that in fact he
was not negligent or that the accident might more
probably have happened in a manner which did not
connote negligence on his part. For the application
of the principle it must be shown that the case was
under the management of the defendant and that the
accident is such as in ordinary course of things
does not happen if those who had the management used
proper care. ........”
15. Point as to whether strict rules of pleading and evidence are
applicable to accident claims was considered by the Hon'ble Apex Court in
the case of N.K.V. Bros. (P) Ltd. V. M. Karumai Ammal, reported in
1980 ACJ 345 (SC). It is held therein that Accidents claims Tribunals
must take special care to see that innocent victims do not suffer and
drivers and owners do not escape liability merely because of some doubt
here or some obscurity there. Save in plain cases, culpability must be
inferred from the circumstances where it is fairly reasonable. It is further
held that the Court should not succumb to niceties, technicalities and
mystic maybes. In the case of Ningamma & another (supra), Hon'ble Apex
Court has held thus in para 23 :-
“ Recently, this Court in the case of Raj Rani &
Ors. v. Oriental Insurance Co. Ltd. & Ors., [C.A.
Nos. 3317-3318 of 2009 @ SLP(C) Nos. 27792-27793 of
2008 pronounced on 06.05.2009], wherein one of us
(Hon'ble Justice S.B. Sinha) has taken the view
that it is not necessary in a proceeding under the
MVA to go by any rules of pleadings or evidence.
Section 166 of the MVA speaks about "Just
Compensation". The court's duty being to award
"Just Compensation", it will try to arrive at the
said finding irrespective of the fact as to whether
any plea in that behalf was raised by the claimant
or not. It was further observed in the aforesaid
case that although the multiplier specified in the
Second Schedule appended to the MVA are stricto
sensu not applicable in a case under Section 166 of
the MVA, it is not of much dispute that wherever
the court has to apply the appropriate multiplier
having regard to several factors in mind. The
Court has placed reliance on earlier judgment of
this court in Nagappa v. Gurudayal & Ors., (2003) 2
SCC 274, wherein it was observed as follows in para
7 :
“ 7. Firstly, under the provisions of the
Motor Vehicles Act, 1988, (hereinafter
referred to as "the MV Act") there is no
restriction that compensation could be awarded
only up to the amount claimed by the claimant.
In an appropriate case, where from the
evidence brought on record if the Tribunal /
court considers that the claimant is entitled
to get more compensation than claimed, the
Tribunal may pass such award. The only
embargo is -- it should be "just"
compensation, that is to say, it should be
neither arbitrary, fanciful nor unjustifiable
from the evidence. This would be clear by
reference to the relevant provisions of the MV
Act. Section 166 provides that an application
for compensation arising out of an accident
involving the death of, or bodily injury to,
persons arising out of the use of motor
vehicles, or damages to any property of a
third party so arising, or both, could be made
(a) by the person who has sustained the
injury; or (b) by the owner of the property;
or (c) where death has resulted from the
accident, by all or any of the legal
representatives of the deceased; or (d) by any
agent duly authorised by the person injured or
all or any of the legal representatives of the
deceased, as the case may be. Under the
proviso to sub-section (1), all the legal
representatives of the deceased who have not
joined as the claimants are to be impleaded as
respondents to the application for
compensation. The other important part of the
said section is sub-section (4) which provides
that "the Claims Tribunal shall treat any
report of accidents forwarded to it under subsection
(6) of Section 158 as an application
for compensation under this Act". Hence, the
Claims Tribunal in an appropriate case can
treat the report forwarded to it as an
application for compensation even though no
such claim is made or no specified amount is
claimed. ”
16. It is thus clear that in proceedings under the MV Act, where
procedure is a summary procedure, there is no need to go by strict rules of
pleading or evidence. Document having some probative value, the
genuineness of which is not in doubt can be looked into by the Tribunal
for getting preponderance of probable versions. As such, it is by now well
settled that even FIR or Police papers, when made part of claim petition
can be looked into for giving a finding in respect of happening of the
accident and for reaching conclusion about negligence. In other words,
evidence of claimants is required to be examined in broader probabilities
of their case, in order to achieve object of social welfare legislation. As
held in the matter of Bimla Devi & others (supra), preponderance of
probabilities is the touchstone for arriving at a conclusion regarding
rashness and negligence as well as mode and manner of happening of the
accident.
17. Let us scan evidence of claimants keeping in mind the
principles of appreciation of evidence in accident claims in order to
determine whether accidental death of Kalyan Kothi is attributable to rash
and negligent act on the part of driver of the truck. Brief resume of
contemporaneous document at Exhibit 15 i.e. report dated 9-9-2004 of
Accidental Death case No. 40/2004 lodged by Dilip Munot shows that
construction work of his new house was going on and the deceased was
supervising that work. This report further shows that the truck came at site
with paved flooring stones. Deceased Kalyan Kothi called 4 - 5 Hamals
and started the work of unloading. The report of Accidental Death case
further shows that deceased Kalyan Kothi was helping Hamals when all of
a sudden two stones escaped from the truck and the deceased was crushed
beneath them. This document makes it clear that deceased Kalyan Kothi
had also undertaken the work of unloading stones along with Hamals
(Labourers).
18. Another contemporaneous document is the spot Panchanama
recorded on the day of accident itself. It is at Exhibit 16. Perusal of spot
Panchanama shows that along with other labourers, Dilip Kakade was also
doing the work of unloading the stones. In fact, this Dilip Kakade had
shown the exact spot of occurrence to Police. Claimants have examined
none else than this witness in order to prove rash and negligent act of the
driver of the truck. Presence of Dilip Kakade on the spot at the time of
accident is established from the contemporaneous document of ante litem
motam nature available on record.
19. Before going to the evidence of Dilip Kakade, let us keep in
mind the position of pleadings of parties. Though not required even in
their claim under Section 163A, claimants had averred that driver of the
truck failed to take proper care while parking the truck and loading and
unloading of goods therefrom. In its both written statements, respondent -
Insurance Company showed ignorance about the mode and manner of
happening of the accident. Para 9 of the written statement dated 17-7-
2009 makes this aspect clear.
20. Evidence of Dilip Kakade prior to remand is at Exhibit 22.
Para 4 from this evidence reads thus :-
“ That, the driver of truck was not parked
vehicle properly. It was in ascending position.
While unloading it, suddenly truck came in
reverse direction and paved flooring stones
escaped from truck and crushed the deceased.
Alleged accident occurred due to negligence of
truck driver. Hence truck driver is responsible
for the accident and death of deceased Kalyan
Kothi. ”
Thus, even in claim under Section 163A of the MV Act, this was the
version of the eye witness about the actual incident.
21. After remand and conversion of the claim to one under
Section 166 of the MV Act, again evidence on affidavit of Dilip Kakade is
tendered by claimants at Exhibit 48. This witness maintained his earlier
version in chief examination but with little more details as the claim was
converted to the fault liability. After remand, it is seen from the evidence
of this witness that when the work of unloading stones from the truck was
going on, all of a sudden there was forceful jerk to the truck and it came in
reverse direction. The truck was at the ascending position and its engine
was in working position. This witness Dilip Kakade further stated that
because of jerk to the truck, stones from the truck escaped and crushed
Kalyan Kothi.
22. Witness Dilip Kakade was subjected to searching cross
examination by respondent - Insurance Company on both occasion. It was
elicited from his cross examination that he was not working on the truck of
respondent no.1 as coolie and was not travelling in it. However, this
material cannot be construed to mean that witness Dilip Kakade was not
unloading stones from that truck. What he meant thereby was that he was
not regularly employed as labourer with the owner of the said truck. He
had merely undertaken the task of unloading the stones along with other
labourers. Even otherwise presence of this witness on the spot is vouched
from the Police papers.
23. The learned Tribunal disbelieved witness Dilip Kakade with a
reason that his evidence prior to remand does not disclose that engine of
the truck was in working condition whereas after remand, he has stated
that engine of the truck was in motion when it was in parked condition.
This was considered to be a material contradiction in his version in order
to discard the same.
24. In my view, the learned Tribunal committed grave error in
appreciation of evidence of eye witness Dilip Kakade. His evidence even
prior to remand when the claim was under Section 163A was crystal clear
to attribute rash and negligent act to the driver of the said truck. His
unshattered testimony at Exhibit 22 prior to remand of the case is to the
effect that while he along with deceased Kalyan Kothi and 3 - 4 other
labourers were unloading the stones from the truck, the accident occurred
due to negligence of the truck driver. At that time, witness Dilip Kakade
has categorically stated that driver of the truck did not park the truck
properly and it was parked in ascending position. Witness Dilip Kakade at
Exhibit 22 has clearly stated that the truck suddenly came in reverse
direction because of which while unloading, stones escaped from the truck
and crushed deceased Kalyan Kothi. On second occasion after remand at
Exhibit 48, same version of witness Dilip Kakade came on record. In
addition, he has just stated that engine of the truck was in on condition at
the time of the accident. Even if this fact is omitted from the version of
Dilip Kakade, then also, inescapable conclusion is that, the accident
happened because of rash and negligent act of the driver of the truck in
parking it in ascending position while unloading the stones thereby
causing the accident. Because of parking in ascending direction, with a
jerk, the truck came in reverse direction while work of unloading of stones
was going on causing the accidental death of Kalyan Kothi. As a prudent
driver, considering the nature of loaded goods i.e. paved stone tiles and
keeping in mind that those were required to be unloaded, driver of the
truck ought not to have parked it in ascending position so as to cause its
reverse journey due to jerk caused while unloading of goods. Reasonable
inference which follows from this evidence is that the truck might have
shaken in the process of unloading the goods causing slip of gear to
neutral position. The truck therefore came in reverse direction as it was
parked in ascending position.
25. There is one more angle to view and assess evidence of Dilip
Kakade. True it is, that in his evidence recorded on 23-2-2007, he had not
mentioned that engine of the truck was in motion while it was parked. At
the time of his cross examination when he entered in the witness box on
second occasion after remand, his attention was not drawn to his previous
statement recorded on 23-2-2007. On second occasion, when Dilip
Kakade entered in the witness box to face cross examination, his
explanation was not sought on this aspect by confronting him with his
earlier recorded evidence dated 23-2-2007. Probably he might have come
up with some explanation for this inconsequential omission in his earlier
testimony. Unless and until such opportunity was accorded to witness
Dilip Kakade, the learned Tribunal ought not to have branded him as a
witness having tendency to depose falsely. This is particularly so when
this statement of witness came on record after conversion of the petition to
one under the fault liability. Considering the overall consistent version of
Dilip Kakade on both occasion, non-disclosure of the fact that engine of
the truck was kept in on condition when it was parked, does not amount to
material improvement in version of Dilip Kakade so as to discard his
entire evidence. Overall scrutiny of evidence of labourer Dilip Kakade
undoubtedly shows that the accident happened because of rash and
negligent act on the part of driver of the truck in not parking the same at
safe position in order to enable the labourers to undertake the work of
unloading safely. The truck driver has not taken reasonable care expected
from a person of ordinary prudence is parking it.
26. Claimants had examined claimant Ashabai - widow who is
undoubtedly not an eye witness to the accident in question. The learned
Tribunal also noted this fact and concluded that her evidence about alleged
rash and negligent act of the driver is of no use. However, she was also
branded as a witness having tendency to depose falsely as in her evidence
after remand, she has additionally stated that there was sudden jerk to the
truck which was parked in ascending position. Evidence of claimant
Ashabai is not relevant for determining mode and manner of happening of
the accident.
27. The learned Tribunal discarded version of witness Dilip
Kakade on the ground that because report was of accidental death, either
claimants or said Dilip Kakade ought to have lodged another report
reflecting correct facts to Police. At this juncture, it needs to be observed
that the learned Tribunal totally lost sight of standard of appreciation of
evidence in claims under welfare legislation. In a case at hand, claimants
and particularly widow is a rustic woman. Witness Dilip Kakade is a
labourer doing the work of loading and unloading trucks. They cannot be
said to be aware about the niceties of law and procedure. One needs to
keep in mind that even well to do person shies of approaching Police. As
such, non-lodging the FIR by either claimants or witness Dilip Kakade is
of no consequence.
28. The finding of the learned Tribunal to the effect that claimants
failed to prove rash and negligent act on the part of driver is wholly
perverse. The learned Tribunal went beyond the evidence on record while
determining this aspect. The learned Tribunal by travelling beyond the
evidence, recorded perverse finding to the effect that deceased Kalyan
Kothi was not habitual to do the work of Porter and he must not be having
any experience of such work. The learned Tribunal further recorded the
finding that probably because of negligence of deceased Kalyan Kothi the
accident took place. The learned Tribunal further inferred that the accident
might have taken place because of negligence of deceased Kalyan Kothi in
handing over paved flooring stones to other labourers. Such inferential
findings are without there being any such evidence on record and result of
surmises and conjunctures.
29. As against truthful and trustworthy eye witness account of
rash and negligent act on the part of driver of the truck coming on record
from the mouth of witness Dilip Kakade, respondents have chosen not to
enter into witness box. Owner and driver of the truck did not participate in
the proceedings. Respondent no.2 - Insurance Company did not examine
driver of the said truck in order to bring on record that the accident
happened due to some other cause than his own negligence. In this factual
backdrop, by accepting evidence of claimant's witness Dilip Kakade which
is duly corroborated by contemporaneous Police papers such as report of
Accidental Death case and spot Panchanama, it needs to be held that the
accident in question happened because of rash and negligent act of driver
of the said truck. Resultantly, claimants being dependent legal
representatives of deceased Kalyan Kothi are entitled for compensation.
30. The learned Tribunal while answering Issue No.4 has
undergone the task of assessment of compensation to which claimants are
entitled. Appellants / claimants are not disputing the quantum of
compensation assessed by the learned Tribunal while answering Issue Nos.
3 and 4 by this appeal. As such, said assessment of compensation payable
to appellants / claimants has attained finality. Claimants are found to be
entitled for total compensation of Rs. 3,21,000/- by the learned Tribunal.
It is not in dispute that the truck involved in the accident was duly insured
with respondent no.2 - Insurance Company.
31. Considering the fact that claim under Section 163A was
subsequently converted to one under Section 166 of the MV Act, the
learned Tribunal held that claimants are entitled for interest from 2-2-2009
i.e. from the date when by effecting amendment the claim was converted
to one under ‘fault liability’. This is perfectly in consonance with
observations of this Court while deciding First Appeal No. 979 of 2007.
Discretion of awarding interest from the date of conversion of the claim
does not appear to be arbitrary. It is perfectly reasonable and according to
law. However, the learned Tribunal erred in assessing the rate of interest
at the rate of 7 % per annum. Considering all relevant aspects, Hon'ble
Apex Court in the cases of Amresh Kumari Vs. Niranjan Lal Jagdish PD.
Jain & others, reported in 2015(4) SCC 433 and Mohinder Kaur & others Vs.
Hira Nand Sindhi (Ghoriwala) & another, reported in 2015(4) SCC 434,
awarded interest at the rate of 9 % per annum for compensation payable.
Hence, I hold that present appellants / original claimants are also entitled
for interest at the same rate.
32. In the result, the appeal is allowed.
(a) Impugned judgment and award is modified by holding that on proof
of rash and negligent act of driver of the truck causing death of Kalyan
Kothi, claimants are entitled for compensation of Rs. 3,21,000/- along with
interest at the rate of 9 % per annum from 2-2-2009 till realization of the
entire amount of compensation.
(b) Accordingly, it is directed that respondents do jointly as well as
severally pay compensation amounting to Rs. 3,21,000/- with interest at
the rate of 9 % per annum from 2-2-2009 till realization of amount to
claimants. The amount of compensation, if any paid to claimants earlier,
shall be adjusted as on the date of payment.
(c) Appellants / claimants are entitled for equal share in the amount of
compensation.
33. The First Appeal is disposed of accordingly.
( A.M. BADAR )
JUDGE
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