*HON'BLE SRI JUSTICE G. BHAVANI PRASAD + Civil Miscellaneous Appeal No.1900 of 2001 % 04/08/2010 # G. Lakshmi and another ..... APPELLANT Vs. $ Pullimandi Satyanarayana and others .....RESPONDENTS ! COUNSEL FOR THE APPELLANT: Sri Y. Vivekananda Swamy ^ COUNSEL FOR THE RESPONDENTS: M. Bhaskara Lakshmi, standing Counsel for the 3rd respondent < Gist : Ø Head Note: ? CITATIONS: AIR 1993 Gauhati 8 AIR 1969 Calcutta 394 AIR 1964 Punjab 235 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE FOURTH DAY OF AUGUST TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.1900 of 2001 Between: G. Lakshmi and another .. Appellants AND Pullimandi Satyanarayana and others .. Respondents JUDGMENT: The dismissal of O.P.No.23 of 1997 on the file of the Motor Accidents Claims Tribunal-cum-I Additional Chief Judge, City Civil Court, Secunderabad, by the award dated 08-12-2000 led the unsuccessful petitioners to approach this court with this appeal. The wife and daughter of one G. Satyanarayana Raju, who was involved in a motor accident on 27-01-1996, filed the claim for a compensation of Rs.5,00,000/- against the driver, owner and insurer of Maruthi van No.AP-9-T-6370, which dashed against the cycle on which G. Satyanarayana Raju was going at about 7.00 A.M. on that day near Jalavayu bypass road. The petitioners claimed that the van was being driven rashly and negligently resulting in injuries to Satyanarayana Raju on the head and all over the body. Satyanarayana Raju was stated to have been treated first at NIMS and then at Mental Hospital, Yerragadda, Hyderabad, and he was stated to be missing from the Mental Hospital since 31-07-1996. The insurer contested the claim denying the allegations of the petitioners and also questioning the competence of the petitioners to claim compensation when the injured was alive. The Tribunal framed issues on the entitlement of the petitioners for compensation and examined PWs.1 to 3 and marked Exs.A.1 to A.16 and Ex.B.1 during the enquiry. The Tribunal rendered the impugned award dismissing the claim solely on the ground that the injured was only found missing and cannot be presumed to be dead before the lapse of 7 years, and hence, the petitioners cannot maintain the claim as if they are the legal representatives of the injured person. The petitioners challenged the said conclusion contending that the injured was mentally depressed and unsound even prior to missing thereby compelling his wife and daughter to file the claim petition and the Tribunal dismissed the petition without giving an appropriate opportunity to the counsel for the petitioners to satisfy it about the maintainability of the petition. Heard Sri Y. Vivekananda Swamy, learned counsel for the appellants, and Smt. M. Bhaskara Lakshmi, learned standing counsel for the 3rd respondent. None appeared on behalf of the respondents 1 and 2 during the hearing. The point for consideration is whether the petitioners can maintain their claim for compensation for the injuries sustained by Sri G. Satyanarayana Raju in the accident in question? Sri Y. Vivekananada Swamy, learned counsel for the appellants referred to certain precedents, the first of which is Binod Chandra Goswami v. Dr. Anandi Ram Baruah and another[1] in which dealing with a claim application filed by a person not duly authorized by the injured, it was opined that the provisions of law are not to be observed as ritual and the Tribunal can or may treat the application as if it was preferred by the person entitled to compensation, if subsequent to the filing of such claim application, the real claimant appears before the Tribunal and endorses the action taken by the unauthorized person. In Piriska Rozario and others v. The Ford Foundation and another[2], the question was about the substitution of the legal representatives of the deceased claimant in a claim petition and it was pointed out that on such substitution, the legal representatives would be entitled only to that part of the claim of the deceased, which would be attributable to the physical injuries causing the death of the deceased. In New India Assurance Co. Ltd., New Delhi and another v. Punjab Roadways, Ambala City and others[3], the issue was involving a claim application made by the husband without having any due authorization from the injured wife and it was observed that in the absence of a restraining provision, a Tribunal is at liberty to follow any procedure that it may choose to evolve for itself so long as the said procedure is orderly and consistent with the rules of natural justice and does not contravene the positive provisions of law. In that process, the Tribunal could well resort to rectify a mistake or allow amendment or substitution or bring on record the necessary or proper parties without being restricted by any technicalities. It was also observed that a person having an implied authority to claim compensation on behalf of the injured may also be brought within the provisions of the Motor Vehicles Act as a person entitled to move a claim petition. The above cited precedents are not applicable straight to the facts and circumstances of the present case, but may illuminate the path to be chosen to secure ultimately the ends of justice. The relevant provisions of the Motor Vehicles Act are intended to justly and adequately compensate the injured or the legal representatives of the dead from the consequences of the motor accidents in which they are involved with or without any fault of theirs. In the present case, the claim is that G. Satyanarayana Raju was severely injured in the accident that was caused due to the rash and negligent driving of the vehicle in question and went missing from the Mental Hospital where he was being treated probably due to the consequences of the head injury he suffered during the accident. His whereabouts are said to be unknown from 31-07-1996. There was positive evidence before the Tribunal by Dr. R. Purushothama Rao, the medical officer, who treated the injured Satyanarayana Raju at the Institute of Mental Health, Yerragadda, about his missing from the hospital. He deposed about the state of mind of the victim, which may possibly lead to his missing from the custody of his family and the 1st petitioner as PW.1 also deposed on oath before the Tribunal about her husband missing since 3 years prior to her deposition in 1999. An affidavit was also filed by the 1st petitioner before this Court on 25-03-2005 stating that in spite of giving a report to Musheerabad police and giving advertisements in Hyderabad Doordarshan, the family was unable to find out the whereabouts of G. Satyanarayana Raju since 31-07-1996. If Satyanarayana Raju was really thus missing and not traced in spite of best efforts of the family since 1996, the provision under Section 108 of the Evidence Act may come to the aid of the petitioners. If it is proved that a person has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, then the burden of proof that such a person is alive will be on the person who affirms the person to be still alive. Otherwise, the presumption is one of what is called “civil death.” If Satyanarayana Raju is, thus, missing since 1996 and is unheard of, the petitioners can maintain their claim for compensation due to the accident. Such a claim can be maintained by the legal representatives of the person injured in the accident on the presumption that Satyanarayana Raju may be no more. Depriving the wife and daughter totally of their right to compensation will be going against the purpose and intendment of the beneficial provisions of the Motor Vehicles Act and the claim should not have been negatived purely on such technical considerations in the light of the principles referred to in the precedents cited. Therefore, in order to ensure substantial justice to the appellants/petitioners, the matter has to be remitted back to the Tribunal to give an opportunity to the petitioners to prove that G. Satyanarayana Raju was missing since 1996 and could not be traced in spite of any amount of efforts and consequently, he should be presumed to be dead for the purposes of civil rights of the petitioners. The petitioners should also be given further opportunity to prove their entitlement to compensation for the adverse consequences, which Satyanarayana Raju suffered during the accident. If the petitioners desire to produce further oral and documentary evidence in this regard in addition to the evidence already produced before the Tribunal, they shall have to be given a reasonable opportunity for the same, while of course the contesting respondents also should have such an opportunity to produce any evidence in rebuttal, if they so desire. Smt. M. Bhaskara Lakshmi, learned standing counsel for the insurer, was referring to the need for determining the relevant date that has to be taken into account for fixing the quantum of compensation or the interest payable thereon, but the same has to be left open to be determined in accordance with law by the Tribunal without expressing any opinion herein as the determination of such question will be a mixed question of law and fact. Accordingly, the award dated 8-12-2000 in O.P.No.23 of 1997 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, City Civil Court, Secunderabad, is set aside and the matter is remitted back to the Tribunal for determination on merits in accordance with law in the light of the observations made in this judgment. The appeal is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 04-08-2010 Note: L.R. copies to be marked. B.O./Ksn [1] AIR 1993 Gauhati 8 [2] AIR 1969 Calcutta 394 [3] AIR 1964 Punjab 235