jr^ / (T ^ ^ IM TOE HIGH GOUR^@F3UIHCWIURE ATmUISI>UR4€^L> Miscdlaneous Appe^ No 1^' /200? LICANTS: /"OAIMAHIS -^) SmtRanerKaur,W/oMewaSingh, i^dabout42y»is. ^2^ AakhiwierStogh, aged Uyeare, S^y, Mevrfa Singh Ky.Rajvjnder Kaur^ged 15 yeare, fo -.'.- ^a»» ^•^- ^.^ 6^" .^^ .^^••" D c?" RESltNIDENTS : ^ON-AFPLICANTS :v^^' jro Wevia Singh Devendra Singh, aged 22 yeass Sfo. Mewa Singh. Appettant nos. 2&3 are represeited heieby ; tegal guanjian mottiw Rafttir Kaur.AI aie R/o MousB<K».234&235^anshiiam Nagarjcribandhajahsil & Dtehwt- Raipur(03) WSRSWS SardarJaspal Sin^i Chawala,S?o lats Pittaro SNigh Chawato,R/o;Rfftam Road- ^ltRK,aiho*atanala,1 The Orienta! Insurance Cc^i&l. througfe Divjskmal Manager, Divisiooal Office no- l,Kutehhery chawkjalljoad, Tahsil & Djstric;Mtel^ut(€6) , Misc. Apoeal under/sectowl^ fttotorVelwcleAi^l988 HIGH COUR'LOF CHHATTISGARH ^3ILASPUR M.A. No. 15 of 2003 Appellants Smt. Rantir Kaur(since dead) through Lakhvinder Singh & others Versus Respondents Sardar Jaspal Singh Chawala & others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri Justice I. M. Quddusi & Hon'ble Shri Justice G. Minhajuddin, JJ Shri Arjun Singrol, Advocate for the appellants. Shri Abhishek Sinha, Advocate with Shri Ghanshyam Patel, Advocate for the respondent No. 2. None for the respondent No. 1. ORDER (Oral) ( Passed on this 19th day of October, 2011 ) Per I. M. Quddusi, J. This appeal, filed by the appellants, arises from the impugned award dated 20U1 September, 2002, passed by the Fourth Additional Motor Accident Claims Tribunal, Raipur in Claim Case No. 55/2002, dismissing the claim petition. Since the appellant No.l is no more her name may be deleted from the cause title. The, brief facts, in nutshell, are that legal heirs/dependents of deceased Mewa Singh filed a claim case under Section 163-A of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 4,29,500/- under various heads. The case of the claimants (Smt. Rantir Kaur, widow, Lakhvinder Singh, son, Ku. Rajvinder Kaur, daughter and Devendra Singh, son) was that deceased Mewa Singh was engaged as Driver in the A .L-. 7. 8. ^ employment of the non-applicant No.l. On 27.10.2000 deceased left Raipur for Delhi by driving the Truck, bearing registration No. M.P. 23-DA/5418. On 30.10.2000 on the.Agra - Firozabad road near Dodla the driver side frontal tyre of the Truck got burst and thereby the vehicle got out of control and collided with another truck, bearing registration No. R.J. 05- G/1009, which was coming from the opposite direction. In that accident Mewa Singh received grievous injuries and succumbed to those injures. The matter was reported to the Police Station - Makkhanpur. The non-applicant No. 1 remained ex-parte whereas the non- applicant No. 2/Insurance Company admitted that at the relevant period the vehicle No. M.P. 23-DA/5418 was insured byit. There is no dispute about the valid and effective driving licence of the deceased on the date of the accident. Learned Claims Tribunal having regard to the facts situation and the evidence on record dismissed the claim petition holding that it was not proved that Mewa Singh died in a road accident on 30.10.2000 within the jurisdiction of Police Station - Makkhanpur (Firozabad). We have heard learned counsel appearing for the parties, perused the impugned award and the papers available on record. In the finding ofissue No.3 whether deceased Mewa Singh died due to bursting of tyre of the vehicle M.P. 23-DA/5418 on 30.10.2000 the finding has been given in negative on the ground that in the postmortem report one Kulvinder Singh, ^,.^^'^,, €V%. 1 WSSsS^ j '%,. ^^/ '^,s^' 9. I? aged 50 years, S/o Jagsingh Sardar was recorded and nobody has proved that by whose mistake the name of the deceased Kulvinder Sikngh was entered in place of the name of deceased Mewa Singh. However, a perusal of the L.C.R. shows that in Ex.P/1, the report of the Police Station Makkhanpur (Firozabad), it is mentioned that after preparing enclosed panchnama, the postmortem was got done and report was received. After conducting enquiry it has been clearly mentioned in the report (Ex.P/ 1) by the police officer that Mewa Singh was driver of that truck, whose tyre was burst and resulting in collision with the truck No. R.J. 05-G/1009. In that accident both the trucks were damaged extensively and the driver ofthe truck No. M.P. 23-DA/5418 died. The Driver of that truck who died was Mewa Singh but by mistake in the postmortem report the name of the deceased driver was mentioned as Kulvinder by one constable Ashok Kumar on the « basis of the information received by some stranger. But when the son of the deceased came at the police station then they could gathered the correct name of the deceased which was entered in the D.D. 32 ofthe police station at 18.10 hours. The son of the deceased Mewa Singh, namely Devender Singh, also moved an application before the police station for correction of the name of the deceased which is exhibited as P/2. The deceased was namely Mewa Singh S/o Sohan Singh R/o Telibandha, Kashiram Nagar, Police Station - Civil Lines, Raipur. Therefore, the findings given by the learned Claims Tribunal to the effect that it was not proved that Mewa Singh was not died due to the accident in question, is per^erse and is s ^""•^^^^^^^ :'^ :if .-- -: / tf & •^•M^i -^z> not sustainable in view of the record available, as mentioned above, which is Ex. P/ 1 and P/2. 10. At this stage learned counsel appearing for the Insurance Company has submitted that there may be a case of contributory negligence because after bursting of the tyre the truck collided with the truck No. R.J. 05-G/1009 and it may be deemed as accident of two tracks; hence the question of contributory negligence may be considered. 11. In our opinion when it is a case that the deceased driver lost control of the vehicle because all of a sudden the tyre of the truck got burst, it cannot be safe to hold that there was contributory negligence. Besides this, the claim was filed under Section 163-A of the Motor Vehicles Act, 1988 and sub-section (2) of Section 163-A provides that the "In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person." 12. Hon'ble Supreme Court in Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd. Baroda1 has held that even the negligence of the victim cannot be seen when the petition is filed under Section 163-A of the Act, 1988. In paragraphs 66 of the judgment by three Hon'ble Judges it has been held that aln Section 163-A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force?? has been used, which goes to show that Parliament (2004) 5 SCC 385 v«^SS^^^si" ^€_ "^;-T;.,.-^,<^ ^l intended to insert a non obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in fhe said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of.?? 13. The case of Deepal Girishbhai Soni (supra) was decided by a Three Judges Bench of the Hon'ble Apex Court and thereafter no other case has come before us which has been decided by the Coram of Three or more Judges of the Hon'ble Apex Court. Therefore, negligence of the victim cannot be seen and when the vehicle became beyond control of the driver due to bursting of the tyre and collided with another truck, nothing can be seen in view of the non obstante clause of wide nature in the form of Section 163-A of the Motor Vehicles Act, 1988. 14. With regard to the income of the deceased there is a certificate that he was getting Rs. 2,500/- per month and he was being given Rs. 100/- per day for food expenses (roti bhatta) as per the certificate, which was only permissible when the deceased driver goes out of station on truck. Therefore, this allowance of Rs.100/- cannot be counted towards the income and therefore the income for all purpose would be Rs. 2500/- per month. Following the second schedule of the Motor Vehicles Act, 1988, considering the age of the deceased as 50 years, as mentioned in the post mortem, the multiplier of 13 would be applicable after deducting l/3rd towards personal and living expenses. Thus, according to us, the annual dependency comes to Rs. 2500 x 12 = Rs. 30,000/3 = %.: ^ ^^ ^^ Rs. 20,000/- and total loss of pependency comes to Rs. 2,60,000/- (Rs. 20,000 x 13). In addition to that Rs. 2000/-is awarded for funeral expenses and Rs. 2500/- for loss of estate. Therefore, the claimants are entitled for the total compensation would come to Rs. 2,64,500/-. 15. The claim petition was filed on 16.12.2000 and it was dismissed by award dated 20.9.2002 therefore we quantify the interest in the manner so that a lump sum amount of Rs. 3,00,000/- is awarded as total compensation, including interest, to the claimants. Accordingly, we hold that the claimants are entitled to get a total sum of Rs. 3,00,000/- as compensation from the non-applicant No-2/Insurance Company, which shall be paid within a period of two months from today, failing which the amount of compensation shall carry interest @ 6% per annum till its payment to the claimants. 16. Since the appellant No. 4 (Devendra Singh ) was major at the time of death of the deceased and was married he shall be paid only Rs. 10,000/-. 17. The appellant No. 3 (Ku. Rajvinder Kaur), the daughter of the deceased shall be paid Rs. 1,50,000/- out of which a sum of Rs. 1,25,000/- shall be kept in the fixed deposit scheme of any nationalized bank for a period of three years and remaining amount of Rs. 25,000/- shall be paid to her in cash. However, in the case of her marriage she may apply to the Claims Tribunal for breaking of the fixed deposit and on being satisfied the Claims Tribunal may pass order accordingly. 18. The appellant No.2 (Lakhvinder Singh) shall be paid Rs. 1,40,000/- out ofwhich Rs. 1,00,000/- shall be kept in a fbced -c_ :;/.,.^^^^^; ^ deposit scheme in any nationalized bank for a period of five years and remaining amount of Rs. 40,000/- shall be paid to him directly. 19. The above order shall be complied with by the Claims Tribunal only on furnishing the proof of identity along with photograph by the appellants before the Tribunal. 20. If any amount towards no fauit liability was paid already then the same shall be adjusted in equal share. 21. The appeal is allowed accordingly, no order as to costs. 22. Certified copy of the order shall be supplied only after the name of appellant No. 1 is deleted by the counsel for the appellants. Sd/- I.M. Quddusi Judge Sd/- G. Minhajuddin Judge Thakur ^ •f. '