IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO 132 of 2006 Date of decision: 30.06.2010 Smt. Anju @ Asha & other …. Appellants Versus The Oriental Insurance Co. Ltd. & others. …. Respondents Coram The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? . For the appellants: Ms. Vidushi Sharma, Advocate. For the respondents: Mr. J.S.Bagga, counsel for respondent No.1. Mr. Kush Sharma, vice Mr. B.C.Negi, counsel for respondents No.2 and 3. V.K.Ahuja, J( oral) This is an appeal filed by the appellants against the judgment of the Court of learned Motor Accident Claims Tribunal, Chamba dated 23.3.2006 vide which the learned Tribunal has rejected the claim of the appellants/claimants under Section 163-A of the Motor Vehicles Act, 1988. 2. Briefly stated, the facts of the case are that the appellants hereinafter referred to as ‘claimants’, filed a claim petition under Section 163-A of the Motor Vehicles Act in regard to the death of one Lakshman, husband of petitioner No.1, father of petitioners No.2 Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 and 3 and son of petitioners No.4 and 5 being the parents of the deceased. 3. The claimants filed the claim petition alleging that the deceased died in an accident on 19.3.2001 at about 2 P.M. in Karian NHPC Colony, Chamba. He died due to multiple head injury with fracture leading to shock. It was alleged that the deceased was going on foot to Karian Colony and when he reached in the middle, tractor No.HP 48-2227 came from the upper side and crushed the deceased. The deceased was 26 years of age. His income from labour and agriculture was Rs.3000/- per month. It was alleged that respondent No.3 was the driver of the vehicle and respondent No.2 was the owner and respondent No.1 is the Insurance Company with which the vehicle was insured. 4. Reply to the petition was filed by the respondents. They denied the assertions made in the petition. On the pleadings of the parties, the following issues were settled: 1. Whether the accident took place by the use of motor vehicle bearing registration No.HP 48-2227 in which one Lakshman alias Bablu had died as alleged? OPP 2. Whether the petitioners are entitled to compensation, if so, to what amount and from whom? OP Parties. 3. Whether the driver of the vehicle was not holding and possessing a valid driving licence at the time of accident as alleged? OPR-1 4. Whether the vehicle in question was being used in contravention of the terms and conditions of the Insurance Policy as alleged? OPR-1. 5. Whether the petition is not maintainable as alleged? OPR 3 6. Whether the vehicle was being driven by one Bablu alias Lakshman Singh who was not having a valid driving licence as alleged, if so, its effect? OPR-1 7. Whether the petition is bad for mis-joinders and non- joinders of necessary parties as alleged? OPR 2 and 3. 8. Whether the deceased was himself responsible for the accident as alleged? OPR 2 & 3. 9. Relief. 5. Parties led their evidence and on conclusion of the trial, the learned Tribunal held that the accident had taken place due to the own negligence of the deceased who interfered with the tractor and consequently he died. Being aggrieved by the said award passed by the learned Tribunal, the appellants/claimants have filed the present appeal. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. A perusal of the judgment shows that the learned Tribunal came to the conclusion that the tractor was standing and the deceased interfered with the same and came under the tractor. Thus, it was alleged that the deceased had himself interfered with the tractor in question which lead to his death and, therefore, he is not entitled to any compensation. It is clear from the award passed by the learned Tribunal that it has not appreciated the evidence in its right perspective. 8. Petitioners had alleged the deceased was going on foot and when he reached in the middle of the colony a tractor came from behind and crushed the deceased. To substantiate these averments the petitioners examined PW-1 Dr.V.K.Pathak who examined the deceased and had proved the postmortem report Ex.PW-1/A. PW-1 4 Head Constable Ramesh Chand had proved the FIR lEx.PW-2/A lodged in this case. PW-3 Smt.Anju petitioner No.1 is the wife of the deceased who had learnt about the accident but is not an eye witness to the occurrence. PW-4, an alleged eye witness has stated that he was going with the deceased at the relevant time when the tractor came from behind and crushed the deceased who died. He specifically stated that the tractor was being driven by respondent No.3 Mehboob Khan. 9. To rebut this evidence, the respondent No.3, who was driving the tractor at the relevant time had appeared in the witness box as RW-1 and has stated that on that day he parked his tractor at NHPC Colony, Kartian and went to market to take his meals. He further stated that the deceased came under the influence of liquor and interfered with his vehicle and the same started and overturned. He also tendered in evidence his driving licence copy Ex.RW-1 and the Insurance Policy Ex.RW-2. He had not seen the deceased himself taking the liquor. He was not an eye witness since he was not present at that time. He, however, admits that the deceased was going on foot and therefore, has not ruled out the possibility that he came under the tractor. He also stated that he was not driving the tractor at the relevant time. He stated that the tractor was parked at that time. RW-2 Sudershan Thakur had engaged his tractor for extracting sand and stated that the deceased came under the influence of the liquor, interfered with the tractor which over turned and the deceased died. This is in all the evidence led by the respondents. 10. A perusal of the FIR Ex.PW-2/A lodged in this case shows that this was not on the basis of the statement made by any eye- 5 witness but it was recorded at the instance of SI Sukh Dev Singh who had gone to the spot and thereafter sent a report that the deceased had driven the tractor which was standing and it overturned in which the deceased was crushed. He has not recorded the statement of any eye witness and, as such this FIR cannot be said to be very relevant. Respondents have also tendered in evidence the untraced report filed by the police Ex.R-3 which has not been proved in evidence and therefore, cannot be read in evidence. They also filed an investigation report by some private agency. However, the author of the said investigation report was not examined nor the report was proved in evidence according to law and, therefore, the presumption of truth is not attached to the said report not tendered in evidence without examining its author and, as such, it cannot be said to be conclusive. 11. From the above discussion of the evidence, it is clear that there was no evidence led by either party to prove the manner in which the accident took place. The testimony of PW-4, who stated that he had witnessed the occurrence and the manner in which the accident place was not relied upon by the learned trial Court without there being any material on record except the statement of respondent No.3 himself who had not seen the accident and had alleged that he had parked the vehicle and his statement was relied upon in preference to the testimony of PW-4. No final report was submitted by the police in regard to the accident, was proved on record on the basis of which FIR was lodged by the police. The doctrine of res ipsa loquitur also applies to the present case and, as such, it has to be concluded that the accident took place due to the rash and negligent driving of the tractor in question. There was no 6 material on record to ignore the testimony of PW-4 Kuldip who stated that he was an eye witness to the occurrence. 12. Apart from above, the present petition has been filed under Section 163-A of the Motor Vehicles Act and not under Section 166-A, it was not required to be proved that the driver was rash or negligent and only thing required to be proved was that the death was the result of accident with the vehicle in question. There is nothing to dispute that the vehicle i.e. the tractor was involved in the accident and once it is proved, rashness or negligence is not required to be proved under Section 163-A. Therefore, the petitioners were entitled to grant of compensation and the findings to the contrary of the learned Tribunal are liable to be reversed. 13. I accordingly hold that the petitioners are entitled to the grant of compensation as per the Schedule under Section 163-A of the Motor Vehicles Act. 14. According to the assertions, the deceased was earning Rs.3000/- per month and his age was 26 years and as per the schedule, the multiplier of 18 applies and the income has to be taken as Rs.612/- per month. The compensation, therefore, come to Rs.1, 32,192/-. According to the note given under the Schedule, 1/3rd amount has to be deducted in consideration of the expenses which the victim would have incurred towards his self maintenance had he been alive. Therefore, the compensation after deducting 1/3rd of the amount, comes to Rs.88,128/-. The petitioners are also entitled to a sum of Rs.2000/- as funeral expenses and also Rs.5000/- loss of consortium and loss of estate Rs.2500/-. The total compensation comes to Rs.97,628/-. No medical expenses have been proved and therefore, the petitioners are not entitled to any 7 medical expenses. The total compensation therefore, comes to Rs.97,628/-. The vehicle was insured with the respondent No.1 and, therefore, respondent No.1-Insurance Company is liable to pay compensation @ 9% per annum from the date of the petition till the date of deposit. The appeal is accordingly allowed along with costs. The counsel’s fee is assessed as Rs.3000/-. June 30, 2010 ( V.K. Ahuja ), (SDS) Judge