Sudhir Kumar & Ors. v. Bhim Sauin & Ors.

Mr. Suvir Dewan, Advocate for the respondents. K.C.PURI. J. This is an appeal directed by the appellants-claimants for setting aside of the Award dated 17.5.2007 passed by Shri Virender Singh, learned Motor Accident Claims Tribunal, Yamuna Nagar dismissing the claim petition. Case of the claimants in brief is that deceased Meena Devi, a house wife of 70 years age, was traveling along with her husband, namely, Sh.Som Parkash in a car bearing registration No. HR-02-G-1000 from Dehradun to Yamuna Nagar on the evening of 10.4.2005 with respondent Bhim Sain Sharma @ Bhim Chand on the steering wheel but the vehicle met with an accident in the area of village Dhulkot because of the rash manner FAO No. 3592 of 2007 2 of driving of respondent Bhim Sain Sharma. He was reportedly very rash and negligent in the manner of driving and was maintaining very fast speed. The driver lost control of the vehicle because of the enormous speed maintained by him and caused the mishap. The car went off the road and fell in a wayside ditch resulting in injuries on the persons of all its occupants. They were immediately rushed to Combined Medical Institute, Dehradun for instant medical aid. Since deceased Meena Devi had suffered multiple grievous injuries in the mishap, she was referred to Sir Ganga Ram Hospital, New Delhi on 11.04.2005 where she lost the battle for life on April 21, 2005. It has been urged that the deceased was a septuagenarian, who was contributing a sum of Rs.3000/- per month by rendering domestic service. A sum of Rs.5,00,000/- was spent on her treatment. The petitioners have sought a sum of Rs.15,00,000/- as compensation. It has been urged on behalf of respondent No.1 that he had not contributed to the mishap in any manner whatsoever. It has been urged on behalf of respondent No.2 that he is the husband of the deceased. He has admitted all the contentions raised in the petition. On notice, Oriental Insurance Company Limited-Respondent No.3 has filed written statement in connivance with respondents No.1 and 2, who are directly related to the deceased. Respondent Bhim Sain Sharma was not possessing a valid driving license on the day of the mishap. The insured had violated the terms and conditions of the insurance policy. The contents of the complaint lodged with the police are at variance with the pleadings contained in the petition. The vehicle in question was not FAO No. 3592 of 2007 3 involved in the mishap. However, car bearing registration No. HR-02-G- 1000 was insured with company from May 31, 2004 to May 30, 2005 in the name of respondent Som Parkash. Following issues were framed for adjudication :

1. Whether the accident was caused due to rash and negligent driving of car bearing registration No. HR-02-G-1000 by Bhim Sain, respondent No.1 as alleged ? OPP

2. Whether the claimants are entitled to recover any amount of compensation on account of death of Smt. Meena Devi in the accident ? If so, to what amount and from whom ? OPP

3. Whether the insured violated any terms and conditions of the insurance policy as alleged ? OPR

4. Relief. The parties have led their respective evidence. On the basis thereof, the learned Motor Accident Claims Tribunal dismissed the claim petition. Feeling dis-satisfied with the aforesaid award, the claimants- appellants preferred this appeal. I have heard the learned counsel for the parties and have gone thorough the records of the case. Learned counsel for the appellants has submitted that Tribunal has given a finding that accident has taken place due to burst of tyre. In the present case, eye witness Mohan Kumar Taneja has categorically stated that the accident took place due to rash and negligent driving of the car. In the circumstances, the learned Tribunal shall have accepted his sworn FAO No. 3592 of 2007 4 testimony, more so the same remains unrebutted. It is submitted that in authority Harnam Singh and another vs. M/s Aar Pee Auto Aid and others 1986 ACJ 396, this court held that tyre burst is not inevitable accident to absolve the liability of owner and Insurance company. The principles of res ipsa lequitur is applicable and the onus is itself on the car owner to dispel the interference of negligence. It is further contended that Tribunal has itself held that claimant has spent an amount of Rs.2,43,217/- and has calculated the compensation on account of death of Meena Devi. So, the Tribunal has wrongly dismissed the application for grant of compensation. The learned counsel for the appellants has further submitted that the Tribunal has not even granted compensation under Section 140 of the Act and under that provision of law atleast Rs.50,000/-should have been granted to the claimants under no fault liability. Learned counsel for the respondents has supported the judgment of the trial Court. It is submitted that Meena Rani deceased is wife of respondent No.2, who was stated to be driving the car. Ex.R-2 is the application for claim of own damage by Som Parkash. In that application, it has been categorically mentioned that back side tyre of car had burst and on that account the car had been imbalanced and the accident had taken place on that account. I have given my thoughtful considered to the rival submissions made by both the sides. Husband of Meena i.e. Som Parkash has mentioned that accident has taken place due to the bursting of the tyre on the back side of FAO No. 3592 of 2007 5 the car. It is not mentioned that accident is due to the negligence driven of the driver of the car. The witness Mohan Kumar has been introduced by the claimants. In letter Mark A also it is not mentioned that accident has taken place due to negligent driving of the car driver. Had Mohan Kumar Taneja been present at the spot, in that case he would have intimated the police by lodging the FIR. There is no FIR in this case. So, the Tribunal has rightly held that claimants have failed to prove that the accident has taken place due to rash and negligent driving of the car driver. So far as the authority Harnam Singh and another's case (supra), is concerned, in that case there was evidence that car was driven at a very high speed and the tyres were worn out. There is no such circumstance in the present case. In view of the finding on issue No.1, there is nothing to call for any interference in the findings rendered by the Tribunal on this issue. Now reverting to the prayer for grant of compensation in accordance with Section 140 of the Act is concerned, that contention carries weight and has to be accepted. No amount has been granted in respect of no fault liability by the Tribunal. Under Section 140 of the Act, even if the accident has taken place without any fault, even in that case also, the injured/legal representatives of the deceased are entitled to claim the amount under the said provisions. In view of the above discussion, the appeal is partly accepted. The claimants are held entitled to claim Rs.50,000/- along with interest @ 7% p.a. from the date of filing the petition before the Tribunal till the FAO No. 3592 of 2007 6 payment. All the respondents are jointly and severally liable to pay the amount of compensation as awarded. A copy of this judgment be sent to the trial Court for strict compliance. February 22nd, 2010 ( K.C.PURI ) JUDGE