Smt. Sarla Agrawal Vs Mahadev Transport Service Bilaspur

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NAFR

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Digitally signed by PRAKASH KUMAR Date: 2024.11.14 12:37:13 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment Reserved on: 24/10/2024

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Judgment Delivered on: 14/11/2024

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MAC No. 596 of 2016

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Dr. Vitthal Kumar Agrawal S/o Late Krishna Kumar Agrawal, Aged About 55 Years R/o Gudhiyari, Raipur, District Raipur, Chhattisgarh...........Claimant,

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---- Appellant

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Versus

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Mahadev Transport Service Bilaspur Through M/s Hakimuddin Owner and Transport Contractor, Through Hasan Ahmad Khan, S/o Ali Ahmad Khan, Near Anand Hotel, Bus Stand Road, Bilaspur, Chhattisgarh,

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Ghanshyam Rathore, S/o Gangaram Rathore, Driver Through, Hasan Ahmad Khan, S/o Shri Ali Ahmad Khan, Near Hotel Anand, Bus Stand Road, Bilaspur, Chhattisgarh,

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Oriental Insurance Company Limited, Through Branch Manager, Branch Office, Dayalband, Bilaspur, Chhattisgarh, (Insurer of Mini Bus)

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Veer Singh, S/o Budhram Gond, Truck Driver, Indira Nagar Korba, Tahsil and District Korba, Chhattisgarh,

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Anish Kumar Sharma S/o Shri Mithilesh Sharma, Truck Owner, 15 Block Qtr. No. 10, S.E.C.L. Colliery, Korba, Tahsil and District Korba, Chhattisgarh,

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The New India Assurance Company Limited Division Office, Transport Nagar, Korba, Tahsil and District Korba, Chhattisgarh (Insurer of Truck)

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---- Respondents

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MAC No. 597 of 2016

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Smt. Sarla Agrawal W/o Dr. Vitthal Kumar Agrawal, R/o Gudhiyari, Raipur, District Raipur, Chhattisgarh...........Claimant,

---- Appellant

Versus

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Mahadev Transport Service Bilaspur Through M/s Hakimuddin Owner and Transport Contractor, Through Hasan Ahmad Khan, S/o Ali Ahmad Khan, Near Anand Hotel, Bus Stand Bilaspur, Chhattisgarh,

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Ghanshyam Rathore, S/o Gangaram Rathore, Driver, Through Hasan Ahmad Khan, S/o Shri Ali Ahmad Khan, Near Hotel Anand, Bus Stand Road, Bilaspur, Chhattisgarh,

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The Oriental Insurance Company Limited Through Branch Manager, Branch Office, Dayalband, Bilaspur, Chhattisgarh, (Insurer of Mini Bus)

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Veer Singh, S/o Budhram Gond, Truck Driver, Indira Nagar, Korba, Tahsil and District Korba, Chhattisgarh,

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Anish Kumar Sharma, S/o Shri Mithilesh Sharma, Truck Owner 15 Block Qtr. No. F 10 S.E.C.L. Colliery, Korba, Tahsil and District Korba, Chhattisgarh,

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The New India Assurance Company Limited Division Office, Transport Nagar, Korba, Tahsil and District Korba, Chhattisgarh, (Insurer of Truck)

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	----Respondents
For Appellants/Claimants	Mr. Viprasen Agrawal, Advocate
For Oriental Insurance Co. Ltd./	Mr. Sudhir Agrawal with Mr.
Resp. No.3.	Shashank Agrawal, Advocates
For New India Assurance	Mr. Samir Singh, Advocate
CompanyLimited/ Resp.No.6

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( Hon’ble Shri Justice Radhakishan Agrawal )

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CAV Judgment

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1. Both the above appeals arise out of same accident, therefore, they are being heard together and disposed of by this common judgment.

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2. Both appeals are by the claimants against the award dated 20.01.2016 passed by Additional Motor Accident Claims Tribunal, (F.T.C.), Korba, Chhattisgarh (in short ‘the Claims Tribunal’) in Claim Case No.45/2013 (Dr. Vitthal Agrawal Vs. Mahadev Transport Service Bilaspur and Others) and Claim Case No.43/2013 (Smt. Sarla Agrawal Vs. Mahadev Transport Service Bilaspur and Others), wherein the claim

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cases preferred by the claimants were dismissed by the Claims Tribunal.

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3. As per the averments made in the claim petitions, on 16.08.1994, the claimants Dr. Vitthal Kumar Agrawal (Appellant in MAC No.596/2016) along with his wife Smt. Sarla Agrawal (Appellant in MAC No.597/2016) were going in Mini Bus bearing registration No.MKL No.5064 from Korba to Champa and near Madwarani, a Truck bearing registration No.MP-26-A-5955 (hereinafter referred to as ‘offending vehicle’) driven rashly and negligently by non-applicant No.4/respondent No.4 – Veer Singh, came from the opposite side and dashed the Mini Bus from front side due to which bonnet of the Mini Bus got damaged and the persons travelling in the Mini Bus including the claimants suffered grievous injuries. Thereafter, report was made before the Police Station Champa on 16.08.1994 itself and crime was registered. The appellant/claimant Dr. Vitthal Kumar Agrawal received grievous injuries and was taken to a Hospital for treatment. He received injuries over his forehead and 8-9 stitches were stitched on the forehead. He also received injuries below the knee and about 3-4 stitches were also stitched there. Moreover, at the time of accident, he was working in Government Engineering College, Raipur as Head of Department of Physics. The appellant has claimed Rs.3,90,000/- under the different heads i.e. for pain and suffering, medical expenses, attendant etc. along with interest.

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The appellant/claimant Smt. Sarla Agrawal (MAC No.597/2016) received grievous injuries over her body and she was also taken to a hospital for treatment. She receives injuries in her left hand, three fractures over chest, her spinal cord got damaged, her teeth and jaws

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were broken. She has claimed Rs.9,50,000/- under the different heads i.e. for pain and suffering, medical expenses, permanent disability, attendant etc. along with interest.

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4. On claim petitions being filed by the claimants under Section 166 of the Motor Vehicles Act seeking compensation to the tune of Rs.3,90,000/- and Rs.9,50,000/- respectively, the Tribunal, considering the evidence led by both the parties, dismissed the claim petition. Hence, these appeals have been filed by the claimants.

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5. Learned counsel for the appellants/claimants submits the learned Claims Tribunal without proper appreciation of the evidence available on record, has dismissed the claim cases filed by the claimants. He further submits that the driver of the Mini Bus, namely, Ghanshyam/respondent No.2 has lodged the FIR dated 16.08.1994 against the driver (respondent No.4) of the offending vehicle in which he has stated that a truck bearing registration No. MP/26-A/5955 which was being driven in a rash and negligent manner dashed his Mini Bus due to which bonnet of the Mini Bus got damaged and the persons travelling in the Mini Bus suffered injuries and the passengers who received grievous injuries were taken to hospital at Champa for treatment. In the said accident, the claimants suffered multiple fractures and received grievous injuries over their body. They were primarily treated at Champa, and subsequently, they had undergone medical treatment at Korba, Raipur and other places and during their medical treatment, huge amount has been incurred by them. Though the FIR is not exhibited but the same is placed on record to substantiate the factum of accident. He further contends that it is a well settled principle of law that in claim cases, strict rule of evidence is not

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to be insisted upon but it has to be decided on the preponderance of probabilities, however, the learned Tribunal was not justified in not considering the fact that both the insurance companies have admitted the insurance of both the vehicles and they have not proved any violation of policy condition as mentioned in paragraph 20 & 21 of the impugned judgment. Therefore, insurance company ought to have been held liable for compensation. On these premises, he urged that the appeals may be allowed by awarding suitable compensation in favour of the claimants. He lastly submits that in alternative, the cases may be remitted back for decision afresh.

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6. Non-applicant No.1 & 2, owner and driver of Mini Bus, in their joint written statement have stated that on the date of accident the offending vehicle truck bearing registration No.MP/26-A/5955 dashed the Mini Bus No.MKL 5064 in the front portion of the Mini Bus as a result of which the bonnet of the Mini Bus got damaged and the passengers including the appellants/claimants sustained injuries. The driver of the Mini Bus was not rash or negligent while driving the Mini Bus.

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7. Non-applicant No.4 i.e. driver of the offending vehicle truck in his written statement has stated that though he was the driver of the truck and was having driving license but he simply denied the other pleadings of the claim petition.

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8. Mr. Sudhir Agrawal, learned counsel appearing for Oriental Insurance Company Limited submits that the Mini Bus was insured with the insurance company. He further submits that no eye witnesses to the alleged accident were examined and the claimants have failed to

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prove their case. Thus, the order passed by the learned Tribunal is in accordance with the evidence available on record.

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9. Mr. Samir Singh, learned counsel appearing for New India Assurance Company Limited submits that the truck (offending vehicle) was insured with the insurance company. He further submits that the alleged accident occurred due to negligence of the driver of the Mini Bus. Further, no disability certificate nor any medical documents were produced by the claimants before the Tribunal to support their contentions. Therefore, the learned Tribunal after due verification and proper appreciation of the evidence available on record, has rightly dismissed the claim petition filed by the claimants.

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10. I have heard learned counsel for the parties and perused the material available on record.

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11. Perusal of the record would show that the claim petitions were filed on 12.03.1996 by the claimants and the same were dismissed for want of prosecution and for restoration of claim petitions, the claimants had filed an application under Order 9 Rule 9 of CPC which was also dismissed on 10.01.2001. Against the said order of dismissal of application under Order 9 Rule 9 CPC, the claimants filed appeals being MA No.14/2004 and MA No.107/2004 respectively. The High Court vide its orders dated 15.09.2010 set aside the impugned order dated 10.01.2001 and directed the concerned Claims Tribunal to restore the claim petitions and decide on its own merits. On receipt of orders dated 15.09.2010, the claims Tribunal restored the claim petitions vide order dated 27.04.2011 and dismissed both the claim petitions on 20.01.2016. It is this order, the claimants are before this Court.

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12. Before proceeding further, it may be mentioned that the Motor Vehicles Act is a beneficial and welfare legislation aimed at providing relief to the victims or their families, in cases of genuine claims. The Tribunals must bear in mind the object of the Act is awarding just and fair compensation to the victim or motor accident cases and it is also the bounden duty of the Court/Tribunals to see that the victim or injured of the motor accident to get just compensation and in assessing, what has been described as a just compensation under the Act, all factors including possibilities have to be kept in mind.

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13. From perusal of statements of the claimants V.K. Agrawal (AW-1) and Sarla Devi (AW-2), it is clear that on 16.08.1994, they met with accident when the offending vehicle dashed the Mini Bus in which they were travelling. It is also apparent from their statements that after accident they became unconscious and were admitted in BDM Hospital, Champa and from there, they were shifted to NTPC Hospital, Korba from where they have been referred to Raipur and then to Nagpur for better treatment. In support, V.K. Agrawal (AW-1) filed discharge certificates Ex.P-1 of BDM Hospital, Champa, Ex.P-3 of discharge ticket of NTPC Hospital, Ex.P-4 & P-5 eye checkup test, Ex.P-6 telegram information with respect to occurrence of accident whereas Smt. Sarla Devi (AW-2) filed Ex.P-9 discharge certificate of NTPC Hospital, Korba, Ex.P-10 discharge card of Medical College of Nagpur, Ex.P-11 is the pathology lab report, Exs.P-12, P-13, P-17 and P-18 are the documents in respect of NTPC Hospital, Korba, Ex.P-14 which is a prescription of Sri Ram Kinkar Medical Institute, OPD receipts are Ex.P-15 and Ex.P-16 and Ex.P-19 to Ex.P-23 which are the documents in respect of Dr. Sahu X-ray Clinic. It is also apparent

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that Smt. Sarla Devi (AW-2) remained in NTPC Hospital, Jamnipali, Korba from 16.08.1994 to 18.08.1994. This apart, Smt. Sarla also admitted in Nagpur Medical College on 26.08.1994 for better treatment up to 06.09.1994. It is also evident from the record that during treatment both the claimants incurred expenses as is apparent from the documents Ex.P-15 and Ex.P-16. It is also pertinent to mention here that V.K. Agrawal (AW-1) during his cross-examination has admitted that the accident occurred due to carelessness of driver of the offending vehicle truck.

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14. Apart from the above statements of the claimants, respondents No.1 & 2 i.e. owner and driver of the Mini Bus have filed written statement jointly stating therein that offending Truck No.MP/26-A/5955 dashed that the Mini Bus in which the claimants were travelling and on account of accident they sustained injuries. It is apparent that on 16.08.1994 the claimants while travelling in Mini Bus met with accident that was caused by the offending truck, as a result of such accident both the claimants received injuries and were admitted in different hospitals.

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15. The driver and owner i.e. non-applicants No.4 & 5 of the offending vehicle have not examined themselves. Though the driver of the offending vehicle has admitted that at the time of accident he was having valid license but no specific pleading has been taken by him that the accident was not occurred by him.

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16. The learned Claims Tribunal, after remanding the matter, although decided the matter vide its award dated 20.01.2016 but, no compensation has been awarded to the claimants on the ground that the claimants failed to prove the accident occurred on the account of rash and negligent driving of offending truck and further failed to

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produce any medical documents in relation to expenses incurred in treatment.

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17. On perusal of the documents available on record, I am of the considered opinion that the Tribunal has fallen in error in dismissing the claim petitions ignoring the relevant documents available on record, particularly, copy of FIR dated 16.08.1994 which shows that case was registered against the driver of the offending truck and by way of FIR, the factum of accident has been unfolded. Although the FIR was not exhibited but the contents FIR have been corroborated by the pleadings made in joint written statement filed by driver and owner of the Mini Bus, and therefore, the factum of accident cannot be brushed aside.

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18. In catena of cases especially in accident related cases, the Hon’ble Supreme Court reiterated that strict rules of evidence as applicable in a criminal trial, are not applicable in motor accident compensation cases. Further the Supreme Court has held that while deciding the cases arising out of motor vehicle accidents, preponderance of probabilities must be applied and not proof beyond reasonable doubt. Reference in this connection may also be made to the observations made by the Supreme Court in the case of Sunita & Ors. Vs. Rajasthan State Road Transport Corporation & Others reported in (2020) 13 SCC 486, wherein it was observed as under :-

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“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.

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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.”

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19. As regards the liability, the claimants/injured persons have specifically stated that on the date of incident i.e. 16.08.1994 while they were travelling in the Mini Bus, on the way, the driver of the offending vehicle/non-applicant No.4 by driving the offending vehicle in a rash and negligent manner dashed the Mini Bus, due to which, they suffered grievous injuries. The statements of the claimants/injured persons also found corroboration with the joint written statement of the driver and owner of the Mini Bus. In support of their evidence, claimants have also filed the medical documents and copy of FIR and from perusal of the same, it is manifestly clear that after the accident, FIR was immediately lodged against the driver of the offending vehicle. This apart, driver and owner of the offending vehicle have also not been examined themselves nor examined any witness to unfold the accident before the Tribunal and that insurance company of the offending vehicle (respondent No.6) has also not examined any witness nor filed any documents in order to rebut the factum of accident and also failed to prove that there was any breach of policy condition by the driver of the offending vehicle. Though the driver/non-applicant No.4 of the offending vehicle has pleaded that he was having a valid license at the relevant time but he has not specifically pleaded that the offending vehicle was not involved in the said accident. Furthermore, there is no counter complaint lodged by the driver of the offending vehicle/nonapplicant No.4 for his false implication and that no evidence was

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brought on record by him that the driver of the Mini Bus was negligent for causing the accident. Furthermore, the fact that the offending vehicle was also insured with the Insurance Company/respondent No.6 is also not rebutted by either driver, owner or its Insurance Company. Thus, from the evidence available on record, it is clear that on the date of accident, the accident occurred due to rash and negligent driving by the driver of the offending vehicle i.e. non-applicant No.4 and the finding recorded by the learned Tribunal to the effect that the claimants have miserably failed to show the factum of accident is erroneous and the said finding of the Tribunal being without appreciation of evidence is hereby set aside. Consequently, based on the pleadings of claim petition, joint written statement by owner and driver of the Mini Bus, the contents of FIR and in the light of nonexamination of driver and owner of the offending vehicle or any witness on their behalf and the admission of insurer (respondent No.6) in its reply/written statement that the offending vehicle was insured at the time of accident, it is held that driver, owner and the insurer of the offending vehicle i.e. non-applicant No.4, 5 & 6 are severally and jointly liable to pay the compensation. However, since the offending vehicle was insured with the respondent No.6/insurer and this fact has also been admitted by it in its written statement, therefore, it is directed that the primary duty to pay the compensation to the claimants along with interest, is upon the insurer of the offending vehicle i.e. respondent No.6.

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20. Now, as regards the compensation, it is not in dispute that the claimants have suffered grievous injuries in the said accident and for proving the said fact, the claimants have filed medical documents

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showing discharge certificates, tickets, pathological reports and X-ray clinical report. Although the claimants have not filed proper documents showing expenses incurred during treatment by them but it is evident from other medical documents that they sustained grievous injuries in the said accident and have been admitted in different hospitals and must have incurred huge expenses for their better recovery from the ghastly accident.

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21. Thus, considering the facts and circumstances of the case, the nature and extent of the injury suffered by the claimants/injured, the period of their hospitalization, further considering the fact that during treatment of claimants, they also suffered severe mental agony and the other miscellaneous expenses incurred by them during treatment, this Court is of the opinion that the claimants are entitled for a lump-sum amount of Rs.1,50,000/- each for the injuries suffered by them in the said accident, which would meet the ends of justice.

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22. The said amount of compensation shall carry interest @ 6 % from the date of filing of claim petitions i.e. 12.03.1996 to 10.01.2001 and from 27.04.2011 till its realization. As already held above, the respondent No.6/insurer of the offending vehicle shall indemnify the compensation to the claimants within a period of three months from the date of passing of this judgment.

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23. In view of what has been stated above, the impugned award passed by the learned Tribunal is set aside and the present appeals are allowed. No order as to cost(s).

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Sd/-

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(Radhakishan Agrawal) Judge

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Prakash

Smt. Sarla Agrawal v. Mahadev Transport Service Bilaspur

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Smt. Sarla Agrawal v. Mahadev Transport Service Bilaspur

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