KUSUM Vs SATBIR .
Bench: G.S. SINGHVI,ASOK KUMAR GANGULY, , ,
Case number: C.A. No.-002269-002269 / 2011
Diary number: 26542 / 2010
Advocates: ANSAR AHMAD CHAUDHARY Vs
M. K. DUA
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2269 OF 2011 (Arising out of Special Leave Petition (C) No.24432/10)
Kusum Lata and others ...Appellant(s)
- Versus -
Satbir and others ...Respondent(s)
J U D G M E N T
GANGULY, J.
1. Leave granted.
2. Heard learned counsel for the claimant,
learned counsel for the insurance company
and also the learned counsel for respondent
nos.1 and 2, the driver and the owner of
the offending vehicle.
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3. In this case the claim for compensation
filed by the appellants was concurrently
denied both by the Motor Accident Claims
Tribunal (for short, ‘the Tribunal’) as
also by the High Court.
4. The material facts of the case are that on
12th January, 2005 while Surender Kumar, the
victim, was going on foot, he was hit by a
vehicle from behind as the vehicle was
driven rashly and negligently and was also
in a high speed. The victim sustained
several injuries and was rushed to the
hospital and was declared dead. After the
said incident the appellants, namely, Kusum
Lata, wife of the victim and three of his
children, two are minor daughters and one
is a minor son, filed a claim petition.
5. When the matter came up before the
Tribunal, the Tribunal in its award dated
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14.6.2006 framed three issues for
adjudication. Of those three issues, since
the Tribunal came to a finding against the
appellants on the first issue, the other
findings of the Tribunal in the second and
third issue were, according to Tribunal, of
no avail to the appellants. On the first
issue the Tribunal came to a finding that
the involvement of the offending vehicle
being tempo No.HR-34-8010 has not been
proved and since on this issue the
Tribunal’s finding went against the
appellants, no compensation was awarded.
On an appeal filed against the said award,
the High Court by the impugned judgment
dated 21.5.2010 also affirmed the finding
of the Tribunal.
6. The main reason why both the Tribunal and
the High Court reached their respective
findings that vehicle No.HR-34-8010 was not
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involved in the accident are primarily
because of the fact that in the FIR which
was lodged by one Ashok Kumar, brother of
the victim, neither the number of the
vehicle nor the name of the driver was
mentioned.
7. Admittedly, the facts were that the brother
of the deceased, Ashok Kumar while walking
on the road heard some noise and then saw
that a white colour tempo had hit his
brother and sped away. Immediately, he
found that his brother, being seriously
injured, was in an urgent need of medical
aid and he took him to the hospital. Under
such circumstances it may be natural for
him not to note the number of the offending
vehicle. That may be perfectly consistent
with normal human conduct. Therefore, that
by itself cannot justify the findings
reached by the Tribunal and which have been
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affirmed by the High Court. In the present
case, evidence has come on record from the
deposition of one Dheeraj Kumar, who
clearly proved the number of the vehicle.
The evidence of Dheeraj Kumar is that he
was going along with one Ashok Kumar on a
scooter to know the condition of one of
their relative in Mahendergarh Hospital. As
they reached at turning at Mahendergarh
road a tempo bearing No. HR-34-8010 of white colour being driven in a rash and
negligent manner came from behind and
overtook their scooter. Dheeraj Kumar was
not driving the scooter. Dheeraj Kumar saw
that the tempo hit Surender, the victim, as
a result of which he fell down but the
tempo did not stop after the accident.
However, the evidence of Dheeraj Kumar is
that they followed the same and caught the
driver. On their asking, the driver
disclosed his name as Satbir son of Shri
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Ram Avtar. Thereafter, they went to
Mahendergarh Hospital and on the next day
when they were returning, they found police
and other persons were present at the spot.
Dheeraj Kumar told the name of the driver
and gave the number of the tempo to the
police. Dheeraj Kumar claims to have seen
the incident with his own eyes. When
Dheeraj Kumar was cross-examined, he stated
that the deceased Surender is not related
to him nor was he his neighbour. He was
his co-villager. Dheeraj Kumar also told
that he knows the driver of the vehicle
bearing No. HR-34-8010. He denied all
suggestions that he was giving his evidence
to help the victim. Both the Tribunal and
the High Court have refused to accept the
presence of Dheeraj Kumar as his name was
not disclosed in the FIR by the brother of
the victim.
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8. This Court is unable to appreciate the
aforesaid approach of the Tribunal and the
High Court. This Court is of the opinion
that when a person is seeing that his
brother, being knocked down by a speeding
vehicle, was suffering in pain and was in
need of immediate medical attention, that
person is obviously under a traumatic
condition. His first attempt will be to
take his brother to a hospital or to a
doctor. It is but natural for such a
person not to be conscious of the presence
of any person in the vicinity especially
when Dheeraj did not stop at the spot after
the accident and gave a chase to the
offending vehicle. Under such mental
strain if the brother of the victim forgot
to take down the number of the offending
vehicle it was also not unnatural.
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9. There is no reason why the Tribunal and the
High Court would ignore the otherwise
reliable evidence of Dheeraj Kumar. In
fact, no cogent reason has been assigned
either by the Tribunal or by the High Court
for discarding the evidence of Dheeraj
Kumar. The so-called reason that as the
name of Dheeraj Kumar was not mentioned in
the FIR, so it was not possible for Dheeraj
Kumar to see the incident, is not a proper
assessment of the fact-situation in this
case. It is well known that in a case
relating to motor accident claims, the
claimants are not required to prove the
case as it is required to be done in a
criminal trial. The Court must keep this
distinction in mind.
10. Reference in this connection may be made to
the decision of this Court in Bimla Devi and others v. Himachal Road Transport
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Corporation and others [(2009) 13 SCC 530], in which the relevant observation on this
point has been made and which is very
pertinent and is quoted below:-
“In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.”
11. In respect of the finding reached by the
Tribunal on the assessment of compensation,
this Court finds that the Tribunal has used
the multiplier of 16, even though the age
of the deceased has been determined to be
29. We find that the Tribunal erred by
applying the multiplier of 16. However,
considering the age of the victim, the
multiplier of 17 should be applied in view
of the decision of this Court in Sarla 9
Verma (Smt) and others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121, and the chart at page 139. It
is not in dispute that in the instant case
the claim for compensation has been filed
under Section 166 of the Motor Vehicles
Act. This Court finds that if the
multiplier of 17 is applied then the amount
comes to Rs.3,93,428.45 apart from the
amount of funeral expenses and the amount
granted for loss of consortium. Taking all
these together the amount comes to a little
more than four lacs of rupees.
12. The Court, however, in exercise of its
power under Article 142 and considering the
number of claimants, of which three are
minor children, is of the opinion that for
doing complete justice in the case and by
taking a broad and comprehensive view of
the matter, an amount of Rs.6 lacs
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including the amounts of consortium and
funeral expenses would meet the ends of
justice. The Court, therefore, grants a
compensation of Rs.6 lacs considering the
fact that the victim was the sole wage
earner in the family and he left behind
three minor children and a widow. The said
amount is to be paid along with interest @
7% from the date of presentation of the
claim petition till the date of actual
payment.
13. In respect of the dispute about licence,
the Tribunal has held and, in our view
rightly, that the insurance company has to
pay and then may recover it from the owner
of the vehicle. This Court is affirming
that direction in view of the principles
laid down by a three-Judge Bench of this
Court in the case of National Insurance Company Limited v. Swaran Singh and others reported in (2004) 3 SCC 297.
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14. The appeal is, therefore, allowed. The
judgments of the Tribunal and the High
Court are set aside. The insurance company
is to pay the aforesaid amount in the form
of a bank draft in the name of appellant
no.1 with interest as aforesaid within a
period of six weeks from date and deposit
the same in the Tribunal. This direction
should be strictly complied with by the
Insurance Company.
15. This Court directs the Tribunal to take
steps for opening a bank account in the
name of the appellant no.1 in a
Nationalised Bank and deposit the demand
draft in that account. If, however, there
is any bank account in the name of the
appellant no.1, the demand draft is to be
deposited in that bank account.
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16. No costs.
.......................J. (G.S. SINGHVI)
.......................J. New Delhi (ASOK KUMAR GANGULY) March 02, 2011
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