Wednesday, 2 March 2016

Whether minor child can file motor accident claim petition after delay of 15 to 16 years?

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.
IN THE HIGH COURT OF PUNJAB AND HARYANA
 AT CHANDIGARH


 FAO No.142 of 2005
 Date of Decision:09.05.2014
Nitin Wasil ...Appellant
Versus
Parkash and others ...Respondents


CORAM:HON'BLE MR. JUSTICE FATEH DEEP SINGH
Citation;2016(1)ALLMR(JOURNAL)39

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.
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.
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 `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.
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.
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.
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
994 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.
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 crossexamination
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.
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.
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 `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 `10,000/- per month. Thus, the annual
dependency comes to `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
`12,00,000/- .
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 `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.
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.
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.
Interim compensation paid, if any, shall be adjusted.
With these observations, the instant appal stands
allowed.
 (FATEH DEEP SINGH)

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