HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 3 Case :- FIRST APPEAL FROM ORDER No. - 554 of 2018 Appellant :- [ENTITY] And Another Respondent :- [ENTITY]Throu.Branch Manager And Ors. Counsel for Appellant :- [ENTITY] Counsel for Respondent :- [ENTITY],[ENTITY] with Case :- FIRST APPEAL FROM ORDER No. - 569 of 2018 Appellant :- [ENTITY] Respondent :- [ENTITY] & Ors. Counsel for Appellant :- [ENTITY] Counsel for Respondent :- [ENTITY] Hon'ble [ENTITY],J.
Hon'ble [ENTITY],J.
Heard Sri [ENTITY], learned counsel for the claimants/appellants, Sri [ENTITY], learned counsel for the respondent No. 1-[ENTITY] (in short "Company") and Sri [ENTITY], learned counsel for the respondent Nos. 2 and 3.
In both the above noted appeals, the judgment and award dated 14.05.2018, passed by the Motor Accidents Claims Tribunal (in short 'Tribunal') /Additional District Judge/FTC, Court No. 1, District- Faizabad in [CASE NUMBER] [Smt. [ENTITY] and another v. National Insurance Co. Ltd and others] has been challenged.
Appeal i.e. [CASE NUMBER] [Smt. [ENTITY] and another v. National Insurance Co. Ltd and others] has been filed for enhancement of compensation and modification of the judgment and award dated 14.05.2018. The appeal i.e. [CASE NUMBER] [National Insurance Co. Ltd v. Smt. [ENTITY] and others] has been filed with a prayer to set-aside the judgment and award dated 14.05.2018, passed by the Tribunal.
The owner of the vehicle i.e. Bus, which was involved in the accident in issue, namely Sri [ENTITY] w/o of Sri [ENTITY] was the respondent No. 2 in [CASE NUMBER] before the Tribunal. The [ENTITY] (in short 'Company') and the owner of the Bus, involved in the accident, namely Smt. [ENTITY] filed the written statement.
The undisputed facts of the case are that on 07.02.2014, the husband of the appellant No. 1 namely late [ENTITY] was driving the Scooty bearing Registration No. UK-6P-5977 and at about 2:30 P.M., he met with an accident in front of University Gate near Pantnagar Airport, PS- Pantnagar, District- Udham Singh Nagar with the Bus bearing Registration No. UK-04-PA-0043. On account of accident, the husband of the appellant No. 1 received serious injuries and was hospitalized in Bombay Hospital and Research Centre, Haldwani, wherein, on account of injuries sustained in the accident in issue, he succumbed to death on 08.02.2014. The First Information Report (FIR) of the incident was registered as [CASE NUMBER], under [SECTION], [SECTION], [SECTION], [SECTION] [ACT], at PS- Pantnagar, District- Udham Singh Nagar, on 09.12.2014 at 16:15 hours, in which, the charge-sheet was filed. Thereafter, the appellant No. 1 along with the son of the deceased, filed the [CASE NUMBER] before the Tribunal.
As no appeal has been preferred against the judgment and award dated 14.05.2018, by the owner of the vehicle namely Smt. [ENTITY], as such, we are only taking note of the relevant facts stated in the written statement filed by the Company. In the written statement filed by the Company, the following main pleas were taken before the Tribunal:-
(i) The FIR is belated and claimant has concealed the true facts with regard to accident and the facts mentioned therein are concocted one.
(ii) The vehicle was not insured.
(iii) The valid documents viz. Registration Certificate, Fitness Certificate, Insurance Policy, License, Permit were not available with the owner of the vehicle involved in the accident i.e. the Bus bearing Registration No. UK-04-PA-0043.
(iv) The Driver namely Sri. [ENTITY] of the Bus bearing Registration No. UK-04-PA-0043 was not having the valid licence.
(v) The vehicle i.e. Bus was being used in violation of [SECTION] and [SECTION] of the [ACT].
(vi) On the date of accident, the driver of the Bus was not negligent rather the accident took place on account of negligent driving of the husband of claimant namely Sri [ENTITY], who was driving the Scooty bearing Registration No. UK-6P-5977.
(vii) The owner and insurer of Scooty have not been impleaded as party.
(viii) The driver of the Scooty i.e. deceased was not having valid licence at the time of accident.
After exchange of pleadings, the Tribunal framed the following issues:-
1- D;k fnukad 07-02-2014 dks le; djhc 02%30 cts fnu cgn LFkku iUruxj gokbZ vM~Mk ds fudV ;wuhoflZVh xsV ds lkeus Fkkuk iUruxj ftyk m/keiqj uxj esa e`rd vo/ks'k dqekj JhokLro viuh LdwVh uEcj ;w-ds-&06ih&5977 ls viuh iRuh ;kph uEcj 1 dks cSBkdj nokbZ ysdj lkekU; xfr ls ck;ha fn'kk ls ?kj okil vk jgs Fks fd :nziqj dSEil ds ikl cl la[;k ;w-ds-&04ih-,-&0043 ds pkyd us okgu dks rsth o ykijokgh ls pykrs gq, LdwVh esa VDdj ekj fn;k] ftlls vo/ks'k dqekj o ;kph la[;k 1 dks xEHkhj pksVsa vk;ha vkSj nkSjku bykt e`rd vo/ks'k dqekj JhokLro dh e`R;q gks x;hA 2- D;k mijksDr dfFkr nq?kZVuk ds le; okgu la[;k ;w-ds-&04ih-,-&0043 us'kyu ba';ksjsaU'k daiuh fyfeVsM ls chfer Fkk rFkk mlds lHkh izi= oS/k Fks\ 3- D;k mijksDr dfFkr nq?kZVuk ds le; okgu ds pkyd ds ikl oS/k o izHkkoh pkyu vuqKk&i= Fkk\ 4- D;k ;kphx.k fdlh izfrdj dks ikus ds vf/kdkjh gSa] ;fn gka rks fdruk vkSj fdl i{k ls\ 5- D;k ;kfpdk okgu la[;k ;w-ds-&06ih&5977 LdwVh ds Lokeh o chek dEiuh dks i{kdkj u cuk;s tkus ds dkj.k val;kstu ds nks"k ls nwf"kr gS\ ;fn gka rks bldk izHkko\ 6- D;k dfFkr nq?kZVuk okgu la[;k ;w-ds-&06ih&5977 LdwVh ds pkyd dh ykijokgh ds ifj.kkeLo:i gqbZ\ ;fn gka rks bldk izHkko\ 7- D;k dfFkr nq?kZVuk ds frfFk o le; ij okgu la[;k ;w-ds-&06ih&5977 LdwVh ds pkyd ds ikl okgu pykus dk oS/k ,oa izHkkoh pkyu vf/kdkji= Fkk\ 8- D;k dfFkr nq?kZVuk dh frfFk o le; ij okgu la[;k ;w-ds-&06ih&5977 LdwVh chfer Fkh ,oa mlds dkxtkr oS/k ,oa izHkkoh Fks\ The Tribunal after considering the relevant evidence/material on record including the statements recorded by the witnesses produced by the respective parties, decided all the issues in favour of the claimants.
We would deal with issue Nos. 1, 4 and 6 later on as these issues are required to be considered in view of the pleas/grounds taken by the Company in Appeal i.e. [CASE NUMBER] and [CASE NUMBER] filed by the claimants.
In view of the pleas/grounds taken in appeal i.e. [CASE NUMBER] filed by the claimants for enhancement of compensation, the finding on the issue No. 4 is required to be considered by this Court and in view of the pleas/grounds taken by the Company in the appeal i.e. [CASE NUMBER], the findings given by the Tribunal on the issue Nos. 1 and 6 are required to be considered by this Court.
Needless to say that the Company has challenged the judgment and award dated 14.05.2018, passed by the Tribunal on the ground to the effect that the driver of Bus bearing Registration No. UK-04-PA-0043 insured by the Company, was not negligent and the Tribunal has erroneously recorded the perverse findings on the issues, framed by it, related to negligence of the vehicles involved in the accident.
Learned counsel for the Company while challenging the judgment and award dated 14.05.2018, passed by the Tribunal has vehemently placed reliance on the "Site Plan" i.e. paper no.52-ga 1/8 to 1/9. On the basis of "Site Plan", the learned counsel for the Company submitted that the driver of the Bus insured by the Company, was on his side and it was the deceased who was driving scooty bearing Registration No. UK-6P-5977 took a turn on his right side and on account of his negligent driving, he met with an accident with the Bus and died on account of the accident took place on 07.02.2014.
It has further been stated that in fact the deceased was driving negligently and on account of which, the accident took place and it was not on account of the fault or negligence of the driver of the Bus.
Per contra, learned counsel for the claimants/respondents in appeal i.e. [CASE NUMBER] submitted that the deceased at the time of accident was 60 years old and he was not driving the scooty negligently or rashly and even he could not have done so in view of his age.
It is further submitted that with regard to accident which took place on 07.02.2014, the FIR was lodged and after due investigation in the case, charge sheet was also filed, which is a proof of negligent driving of the driver of the Bus.
It is further submitted that after considering the site plan as well as other documents including the charge sheet and the oral testimony of the witnesses, the Tribunal recorded a specific finding that the driver of the Bus was negligent. The Tribunal while recording the specific finding with regard to negligent driving of the driver of the Bus has taken note of the evidence recorded by the ocular/eye witnesses. The prayer is to dismiss the appeal filed by the Company.
Learned counsel for the claimants/appellants while pressing the appeal i.e. [CASE NUMBER] submitted that the Tribunal while deciding the issue no.4 and awarding the compensation to the claimant has not considered the relevant provisions of the [ACT] and has also not applied the correct multiplier.
Further submission is that the Tribunal has wrongly made deduction while awarding the compensation. It has also been stated that the rate of interest awarded by the Tribunal is very less and it should be at least @ 12% per annum. The Tribunal has also not awarded any amount towards future prospects.
Per contra, learned counsel for the company while opposing the appeal filed by the claimants-respondents for enhancement of compensation submitted that the Tribunal has rightly awarded the compensation as such, the same is not liable to be interfered with.
In rebuttal, learned counsel for the claimant-respondent submitted that the law on the issue of grant of compensation is now set at rest by the judgments of the Hon'ble Apex Court passed in the cases of [ENTITY] Vs. [PRECEDENT] reported in (2017) 4 TAC 673(SC): AIR 2017 SC 5157 and [PRECEDENT].
We have considered the submissions made by learned counsel for the parties and perused the record.
In view of the submissions made by the learned counsel for the parties, the following two points are to be considered in both the appeals.
(i) Whether the Tribunal has rightly held that the driver of the Bus bearing Registration No. UK-04-PA-0043 was negligent.
(ii) Whether the amount awarded by the Tribunal is as per law.
First, we are dealing with [CASE NUMBER] filed by the Company with the prayer to set aside the judgment and award dated 14.05.2018, passed by the Tribunal and Point No. 1, above determined.
The sole plea which has been pressed, taken in the appeal filed by the Company, and argued by the learned counsel for the Company is to the effect that the driver of the Bus, insured with the Company, was not negligent and in fact the deceased who was driving the scooty was negligent and on account of the negligent driving of the deceased, the accident took place and deceased expired on account of the same. Thus, the Tribunal has erroneously recorded the perverse findings in regard to negligence of the driver of the Bus, insured with the Company.
On this aspect of the case, we have considered the record of the Tribunal as well as the findings recorded on the issue no.1, wherein the Tribunal has recorded the findings with regard to negligence of the driver of the Bus.
It appears from the judgment and award dated 14.05.2018 that while holding/recording the findings that the driver of the Bus was negligent and on account of rash and negligent driving, the accident took place and husband of claimant-Smt. [ENTITY] expired due to injuries sustained by him in the said accident, the Tribunal considered the statements of ocular witnesses i.e. PW-3-Smt. [ENTITY], the pillion rider of the scooty driven by the deceased and also considered the documentary evidence i.e. FIR, Site Plan and Charge Sheet filed by in Criminal Case against the driver of the Bus.
It is borne out from the statement given by wife of deceased namely Smt. [ENTITY], that the accident took place on account of negligent driving of the driver of Bus. In cross-examination of Smt. [ENTITY], though there are certain discrepancies but the fact remains that Smt. [ENTITY] has not made any contradictory statement to what was stated by her in examination-in-chief. Nothing adverse was elicited in cross-examination of Smt. [ENTITY].
From the conjoint reading of the statement given by Smt. [ENTITY] in examination-in-chief and in cross-examination, it is apparent that the driver of the Bus was negligent. For the purposes of arriving at conclusion on the finding on negligence given by the Tribunal on the issue nos.1 and 6, we have also taken note of Site Plan i.e. paper no.52-ga 1/8 to 1/9 and charge sheet filed against the driver in the [CASE NUMBER], under [SECTION], [SECTION], [SECTION], [SECTION] [ACT], at PS- Pantnagar, District- Udham Singh Nagar. In the site plan prepared by the Police Officials, with regard to mark-'A', it has been stated that:-
;g fcUnq cl }kjk rsth o ykijokgh pykus ij LdwVh dks VDdj ekjus dks n'kkZrk gSA It also appears from the judgment and award dated 14.05.2018 passed by the Tribunal, that the Tribunal considered the statement of ocular witness Smt. [ENTITY] and other relevant documents on record and thereafter recorded a specific finding to the effect that the driver of the Bus was negligent. The relevant portion of the judgment dated 14.05.2018, which is part of decision on the issue no.1, on reproduction reads as under:-
";kphx.k dh vksj ls ijhf{kr lh0ih0MCyw0 3 feFkys'k JhokLro tks e`rd dh iRuh gS] us vius c;kuksa es dgk fd nq?kZVuk fnukad 07-02-14 le; djhc 2-30 cts fnu esa iUr uxj gokbZ vM~Mk ds fudV fo'ofo|ky; xsV ds lkeus Fkkuk iUruxj ftyk m/ke flag uxj dh gSA nq?kZVuk ds le; eS vius ifr ds LdwVh ua0 ;w0ih0 06 ih0&5977 ij ihNs cSBdj lM+d ds ck;s fn'kk ls lkekU; xfr ls :nziqj ls vius vkokl ds fy, tk jgh FkhA nq?kZVuk LFky ij igqaph fd ,d feuh cl ua0 ;w0ds0 04 ih0,0&0043 dk pkyd mDr okgu dks dkQh rsth o ykijokgh ,oa vlko/kkuh iwoZd xyr fn'kk esa pykrk vkdj esjs ifr dh LdwVh esa xEHkhj VDdj ekj nhA ftUgs ?kk;ykoLFkk esa gY}kuh vLirky es HkrhZ djk;k x;k tgka ij bykt ds nkSjku nwljs fnu esjs ifr dh blh pksVksa ds dkj.k e`R;q gks x;h vkSj eq>s Hkh pksVsa xEHkhj vk;h FkhA ;g nq?kZVuk eSus viuh vka[kks ls ns[kk FkkA ;g nq?kZVuk feuh cl pkyd dh ykijokgh ls gqbZ gSA bl nq?kZVuk esa esjs ifr dk dksbZ nks"k ugh gSA ;kphx.k dh vksj ls ijhf{kr ;g lk{kh ?kVuk dh p{kqn'khZ lk{kh gS tks ?kVuk ds le; e`rd dh LdwVh ij ihNs cSBh gqbZ FkhA foi{khx.k }kjk bl lk{kh ls dh x;h izfrijh{kk eas NksVs eksVs fojks/kkHkk"k vo'; gS] ijUrq bl lk{kh dh lk{; dks lexz :i ls i<+us ij ,slk dksbZ lkjxfHkZr rF; fudy dj ugha vk;k gS] ftlls bl lk{kh dh lk{; ij vfo'okl fd;k tk ldsA foi{khx.k dh vksj ls lk{kh vks0ih0MCyw 1 xksiky dks ijhf{kr djk;k x;k] ftlus vius c;kuksa es dgk fd nq?kZVuk okys fnu 07-02-14 dks eS feuh cl ua0 ;w0ds0 04 ih0,02&0043 pyk jgk FkkA eS feuh cl vius okgu Lokeh ds funsZ'k ij pyk jgk FkkA esjs ikl okgu pykus dk oS/ko izHkkoh ykbZlsUl gS] tks nq?kZVuk dh frfFk dks izHkkoh FkkA mldh lR;kfir izfrfyfi eSus i=koyh esa nkf[ky fd;k FkkA xkM+h ds lHkh dkxtkr oS/k o izHkkoh FksA nq?kZVuk okys fnu eS vius lkbM ls csgn fu;af=r xfr ls :nziqj dh rjQ tk jgk Fkk] tc eS iUruxj fo'ofo|ky; ds xsV ds ikl igqapk] rHkh nkfguh rjQ ls ,d LdwVh lokj us viuh LdwVh eksM+ nh] ftlls og lM+d ikj djds ,d ne esjs feuh cl ds lkeus xyr fn'kk esa vk x;kA eSus mldks nwj ls gh xyr fn'kk esa LdwVh eksM+rs ns[k fy;k Fkk vkSj viuh xkMh es cszd yxk;k Fkk vkSj gkUkZ Hkh cgqr nsj rd ctk;k FkkA esjh xkMh /kheh gksdj czsd ekjus ls yxHkx :d x;h Fkh] ysfdu LdwVh pkyd tks vius ihNs efgyk Hkh cSBk;k Fkk rst xfr ls vfu;fU=r gksdj pykrs vk;k vkSj esjs feuh cl ls Vdjk dj fxj x;kA bl nq?kZVuk esa esjh dksbZ xyrh ugha Fkh] D;ksafd nq?kZVuk dks cpkus ds fy, eSus cszd yxk dj xkMh /kheh dh Fkh] vkSj gkuZ Hkh ctk;k FkkA ;fn LdwVh pkyd dh xfr /kheh gksrh rks ;gh nq?kZVuk ugha gksrhA LdwVh pkyd us gsyesV Hkh ugha yxk;k FkkA ;g nq?kZVuk iwjh rjg ls LdwVh pkyd ds mis{kk mrkoys iu ds dkj.k gqbZ gSA bl lk{kh ls ;kphx.k dh vksj ls izfrijh{kk dh x;h ftlesa bl lk{kh us Lohdkj fd;k fd ;g nq?kZVuk esjs okgu ls gqbZ FkhA i=koyh ij nLrkosth lk{; ds :i es miyC/k izFke lwpuk fjiksVZ dh izekf.kr izfr dkxt la[;k 52x1@2 rk 52x1@3 ds voyksdu ls fofnr gksrk gS fd fnukad 09-02-14 dks le; 16-15 cts Jh f'k[kj JhokLro }kjk eq0v0la0 17@14 vUrxZr /kkjk 279][SECTION]][SECTION]]304, Hkk0n0la0 Fkkuk iUruxj :nziqj ftyk m/keflag uxj esa pkyd cl la[;k ;w0ds0 04 ih , 0043 ds fo:) iathd`r djk;h x;h gSA uD'kk utjh dh izekf.kr izfr dkxt la[;k 52x1@8 rk 52x1@9 esa vkfyIr cl la[;k ;w0ds0 04 ih , 0043 us vius nkfgus tkdj LdwVh esa VDdj ekjk tkuk nf'kZr fd;k gSA izekf.kr izfr dkxt la[;k 52x1@14 rk 52x1@15 ds vuqlkj foIk{kh la[;k 3 ds fo:) foospd }kjk vkjksii= nkf[ky fd;k x;k gSA i=koyh ij e`rd Jh vo/ks'k JhokLro ds iksLVekVZe fjiksVZ dh izekf.kr izfr dkxt la[;k 52x1@4 rk 52x1@7 Hkh miyC/k gS] ftlesa e`rd Jh vo/ks'k dqekj JhokLro dk iksLVekVZe fnukad 09-02-14 dks 10-45 ,0,e ij fd;k tkuk Hkh vafdr gSA bl izdkj i=koyh ij miyC/k ekSf[kd lk{; ,oa vfHkys[kh; lk{; ds la;qDr ifj'khyu ls U;k;kf/kdj.k bl vfHker dk gS fd fnukad 07-02-2014 dks le; yxHkx 02-30 cts fnu cgn LFkku iUruxj gokbZ vM~Mk ds fudV ;qfuoZflVh xsV ds lkeus Fkkuk iUruxj ftyk m/keflag uxj esa okgu la[;k ;w0ds0 06 ih0 5977 LdwVh ds pkyd }kjk LdwVh lkekU; xfr ls pyk dj vius nkfgus vkdj frjkgs ij eqM+ jgk Fkk fd cl la[;k ;w0ds0 04&0043 ds pkyd }kjk okgu dks dkQh rsth o ykijokgh ls pykrs gq, lkeus ls vkdj LdwVh esa VDdj ekj fn;k] ftlds QyLo:i ?kVuk ?kfVr gqbZ] rnuqlkj ;g okn foUnq udkjkRed :i ls fuLrkfjr fd;k tkrk gSA"
The Hon'ble Apex Court in the judgment passed in the case of [PRECEDENT], wherein the issue related to negligence was involved, has observed that while dealing with cases arising out of motor vehicle accidents, the standard of proof to be borne out in mind must be preponderance of probability and not the strict standard of proof beyond reasonable doubt which is followed in Criminal Case. The Hon'ble Apex Court, in judgment, also taken note of importance of cross-examination. The relevant paras of the judgment on reproduction reads as under:-
"20. This is the only analysis/discussion in the entire judgment to reverse the exhaustive analysis done by the Tribunal to which we have set out in brief in paragraphs 5 to 9 above. The thrust of the reasoning given by the High Court rests on the unreliability of the witnesses presented by the appellants: first, that the evidence given by [ENTITY] (A.D.2) was unreliable because he was not shown as a witness in the list of witnesses mentioned in the charge sheet filed by the police and that the said witness could not identify the age of the pillion rider, [ENTITY]. Second, the said pillion rider himself, [ENTITY], who was the "best" witness in the matter, was not presented for examination by the appellants. The High Court also relies on the site map (Exh.3) to record the finding on the factum of negligence of the deceased [ENTITY] in causing the accident which resulted in his death.
21. We have no hesitation in observing that such a hyper-technical and trivial approach of the High Court cannot be sustained in a case for compensation under the Act, in connection with a motor vehicle accident resulting in the death of a family member. Recently, in [PRECEDENT], (to which one of us, [ENTITY], J. was a party), this Court has restated the position as to the approach to be adopted in accident claim cases. In that case, the Court was dealing with a case of an accident between a motorcycle and a jeep, where the Tribunal had relied upon the FIR and charge-sheet, as well as the accompanying statements of the complainant and witnesses, to opine that the police records confirmed the occurrence of an accident and also the identity of the offending jeep but the High Court had overturned that finding inter alia on the ground that the oral evidence supporting such a finding had been discarded by the Tribunal itself and that reliance solely on the document forming part of the police record was insufficient to arrive at such a finding. Disapproving that approach, this Court, after adverting to multitude of cases under the Act, noted as follows:
"22. The question is: Whether this approach of the High Court can be sustained in law? While dealing with a similar situation, this Court in [ENTITY] noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the person standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while dealing with the claim petition in terms of [SECTION] of the [ACT], the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. In paras 11-15, the Court observed thus: (SCC pp. 533-34) "11. While dealing with a claim petition in terms of [SECTION] of the [ACT], a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in [SECTION] of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post-mortem report vis vis the averments made in a claim petition.
12. The deceased was a constable. Death took place near a police station. The post-mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of the constable had taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus-stand and near a police station. In such an event, the Court can presume that the police officers themselves should have taken possession of the dead body.
13. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate Respondents 2 and 3. The claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the first information report had been lodged in relation to an accident could not have been ignored.
14. Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of [SECTION] of the [ACT] as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
(emphasis supplied) The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside.
23. Following the enunciation in [ENTITY] case, this Court in [ENTITY] v. Amir Chand(2011) 11 SCC 635 noted that when filing of the complaint was not disputed, the decision of the Tribunal ought not to have been reversed by the High Court on the ground that nobody came from the office of the SSP to prove the complaint. The Court appreciated the testimony of the eyewitnesses in paras 12 & 13 and observed thus: ([ENTITY] case, SCC p. 638) "12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of [ENTITY], PW 1. Such disbelief of the High Court is totally conjectural. [ENTITY] is not related to the appellant but as a good citizen, [ENTITY] extended his help to the appellant by helping her to reach the doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of [ENTITY] cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.
13. The other so-called reason in the High Court's order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. "
24. It will be useful to advert to the dictum in [PRECEDENT], wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the [ACT] ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under [ACT], is more stringent than negligence sufficient under the law of tort to create liability. The observation made in para 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus: (SCC pp. 458-59) "3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents 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. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and [SECTION] of the [ACT] lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard."
25. In [ENTITY], this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in [ENTITY]. In paras 8 & 9 of the reported decision, the dictum in United India Insurance Co. Ltd. v. [ENTITY](2011) 10 SCC 509, has been adverted to as under: ([ENTITY] case, SCC p. 650) "8. In United India Insurance Co. Ltd. v. [ENTITY] while considering the nature of a claim petition under the [ACT] a three-Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10) 10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.
(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.'
9. The following further observation available in para 10 of the Report would require specific note: ([ENTITY] case, SCC p. 519) 10. We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.'"
In para 10 of [ENTITY], the Court opined that non-examination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability."
22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.
31. The importance of cross-examining a witness has been elucidated by this Court on several occasions, notably in [PRECEDENT] where a Five-Judge Bench of this Court elaborated:
"278. [SECTION] of the [ACT] defines what cross-examination means and [SECTION] and [SECTION] speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:
(1) to destroy or weaken the evidentiary value of the witness of his adversary;
(2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.
279. The identity of the witness is necessary in the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimized by any false and invented evidence that may be tendered by the adversary party."
(emphasis supplied) Taking note of observation of the Hon'ble Apex Court in the judgment passed in the case of [PRECEDENT] (supra) and the statement of ocular witness, Smt. [ENTITY] and documents on record i.e. Site Plan and Charge Sheet filed in Criminal Case against the driver of the Bus, we are of the view that Tribunal rightly held that in the accident in issue, the driver of the Bus was negligent. The point no. (i) is decided accordingly against the Company.
In regard to point no. (ii), which relates to grant of compensation by the Tribunal, we have considered the material available on record and reasons for conclusion arrived at by the Tribunal in granting the compensation.
It appears from the record that the deceased was retired employee, retired on 31.12.2013, and undisputedly retired on attaining the age of 60 years and at the time of accident i.e. on 07.02.2014 was getting the pension to the tune of Rs.25,565/-, which was considered by the Tribunal. Thus, Tribunal has rightly considered the income of the deceased for the purposes of awarding compensation.
Considering the age of the deceased i.e. between 61 and 65, the Tribunal applied the multiplier of 7, while as per the judgment passed by the Hon'ble Apex Court in the case of [PRECEDENT], taken note of and approved by the Hon'ble Apex Court in paras 10, 44 and 61 of the judgment passed in the case of [PRECEDENT] (supra). Thus, the Tribunal rightly applied the multiplier of 7.
For computing the compensation, the Tribunal deducted 50% from the income of the deceased. The deduction was made after considering the age of both the sons of the deceased i.e. 40 and 35 years, respectively and they can earn for their livelihood. Thus, in our view, the Tribunal rightly deducted 50% from the income of the deceased for awarding compensation. Further, non awarding any amount towards future prospects by the Tribunal, in our view, is just and proper as the same is in consonance of the observations made by the Hon'ble Apex Court in the judgment passed in the case of [PRECEDENT] (supra).
Towards conventional heads, namely, loss of estate, loss of consortium and funeral expenses, the Tribunal has awarded Rs.15,000/-, Rs.40,000/- and Rs.15,000/- and on the amount awarded, the Tribunal has granted simple interest @ 7% per anuum.
The Hon'ble Apex Court in the judgment passed in the case of [PRECEDENT] (supra), observed as under:-
"8.4. The Insurance Company has submitted that the father and the sister of the deceased could not be treated as dependents, and it is only a mother who can be dependent of her son. This contention deserves to be repelled. The deceased was a bachelor, whose mother had pre-deceased him. The deceased's father was about 65 years old, and an unmarried sister. The deceased was contributing a part of his meagre income to the family for their sustenance and survival. Hence, they would be entitled to compensation as his dependents.
8.5. The Insurance Company has contended that the High Court had wrongly awarded Rs. 1,00,000 towards loss of love and affection, and Rs. 25,000 towards funeral expenses.
The judgment of this Court in [PRECEDENT] (supra) has set out the various amounts to be awarded as compensation under the conventional heads in case of death. The relevant extract of the judgment is reproduced herein below :
"Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years."
(Emphasis supplied) As per the afore-said judgment, the compensation of Rs. 25,000 towards funeral expenses is decreased to Rs. 15,000.
The amount awarded by the High Court towards loss of love and affection is, however, maintained.
8.6 The MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and Loss of Estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the [ACT] Bench in [PRECEDENT] (supra).
The [ACT] is a beneficial and welfare legislation. The Court is duty-bound and entitled to award "just compensation", irrespective of whether any plea in that behalf was raised by the Claimant.
In exercise of our power under [SECTION], and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2.
8.7 A [ACT] Bench of this Court in [PRECEDENT] (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.
In legal parlance, "consortium" is a compendious term which encompasses spousal consortium', parental consortium', and filial consortium'.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. [PRECEDENT].
Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, and aid of the other in every conjugal relation."Black's Law Dictionary (5th ed. 1979).
Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The [ACT] is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count. Rajasthan High Court in [PRECEDENT]; Uttarakhand High Court in [PRECEDENT]; Karnataka High Court in [PRECEDENT].
However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.
The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under Loss of Consortium' as laid down in [PRECEDENT] (supra).
In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium.
11. In light of the above mentioned discussion, Respondent Nos. 1 and 2 are entitled to the following amounts :
Head Compensation awarded i. Income:
Rs. 6,000 ii. Future Prospects:
Rs. 2,400 (i.e. 40% of the income) iii. Deduction towards personal expenditure:
Rs. 2,800 [i.e. 1/3rd of (Rs. 6,000 + Rs. 2,400) iv. Total Income:
Rs. 5,600 [i.e. 2/3rd of (Rs. 6,000 + Rs. 2,400] v. Multiplier:
vi. Loss of future income:
Rs. 12,09,600 (Rs. 5,600 12 18) vii. Loss of love and affection:
Rs. 1,00,000 (Rs. 50,000 each) viii. Funeral expenses:
Rs. 15,000 ix. Loss of estate:
Rs. 15,000 x. Loss of Filial Consortium:
Rs. 80,000 (Rs. 40,000 payable to each of Respondent Nos. 1 and 2) Total compensation awarded:
Rs. 14,25,600 alongwith Interest @ 12% p.a. from the date of filing of the Claim petition till payment.
Out of the amount awarded, Respondent No. 1 is entitled to 60% while Respondent No. 2 shall be granted 40% alongwith Interest as specified above."
Considering the observation made by the Hon'ble Apex Court in the judgment passed in the case of [PRECEDENT] (supra) and the amount of Rs.40,000/- awarded by the Tribunal towards loss of consortium and interest @ 7% per auunm, we are of the view that judgment and award dated 14.05.2018, under appeal, is liable to be modified only with respect amount of consortium and interest.
Accordingly, we modify the judgment and award dated 14.05.2018 in following terms only and except modification the rest of the judgment and award dated 14.05.2018 passed by the Tribunal would remain intact.
In addition to amount of loss of consortium i.e. Rs.40,000/- awarded by the Tribunal to Smt. [ENTITY], we hereby provide that claimant no.2/appellant no.2-Sri [ENTITY] in [CASE NUMBER] would be entitled to Rs.40,000/- towards loss of consortium. The other son Sri [ENTITY] is also entitled to amount towards loss of consortium but as he is not party before us, so we are not awarding the same in his favour.
On the total amount aforesaid, the appellant would be entitled to the interest @ 12 % per annum from the date of filing of the Claim Petition, as awarded in the case of [PRECEDENT] (supra).
The amount aforesaid is quantified and would be substituted to the amount quantified by the Tribunal towards compensation.
In above terms, we partly allow the appeal filed by the claimants/appellants i.e. [CASE NUMBER] [Smt. [ENTITY] and another v. National Insurance Co. Ltd and others] and for the reasons aforesaid, we dismiss the appeal filed by the Company i.e. [CASE NUMBER] [National Insurance Co. Ltd v. Smt. [ENTITY] and others].
No order as to costs.
Order Date :- 11.12.2019 Arun/-