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2012 Supreme(Chh) 322
IN THE HIGH COURT OF CHHATTISGARH
I.M. QUDDUSI, GULAM MINHAJUDDIN, JJ.
Prabandhak, Shri Kalyan Sevaashram Trust - Appellant
Versus
Smt. Lakshmi Bai and Others - Respondent
M.A. (C) No. 448 of 2011
Decided On : 23-04-2012
For the Appellant : S.S. Rajput and Mr. Anant Bajpai
For the Respondent: P.K. Tulsyan, Mr. Somnath Verma
The main legal point established in the judgment is the determination of liability under the Motor Vehicles Act, 1988, based on the possession and ownership of the offending vehicle at the time of the accident.
Headnote:
Motor Vehicles Act - Liability - 173 - 166 - Summary of the acts and sections referenced and discussed by the court: The court discussed the liability under sections 166 and 173 of the Motor Vehicles Act, 1988, and the application of the second Schedule of the Act in determining the compensation. The court also referred to the provisions of the Indian Penal Code related to the accident and the territorial jurisdiction of the claims Tribunal.
Fact of the Case:
The claimants filed a petition under section 166 of the Motor Vehicles Act, 1988, seeking compensation for the death of Rakesh Tamrakar in a road accident. The Tribunal awarded compensation, holding the appellant and respondents jointly and severally liable.
Finding of the Court:
The court found that the offending vehicle was in the possession of respondent No. 6 at the time of the accident, and the liability to pay compensation was rightly fastened upon the appellant and respondents No. 5 & 6. The court also affirmed the quantum of compensation awarded by the Tribunal.
Issues: The main issues were the possession and ownership of the offending vehicle at the time of the accident, the territorial jurisdiction of the claims Tribunal, and the quantum of compensation.
Ratio Decidendi: The court held that the liability to pay compensation was rightly fastened upon the appellant and respondents No. 5 & 6 due to the possession of the offending vehicle by respondent No. 6 at the time of the accident. The court also affirmed the quantum of compensation awarded by the Tribunal.
Final Decision: The appeal and cross-objection were dismissed, affirming the liability to pay compensation jointly and severally upon the appellant and respondents No. 5 & 6. The appellant was also granted the right to recover the compensation from respondents No. 5 & 6 if paid.
GHULAM MINHAJUDDIN, J.
1. This appeal has been filed by the appellant u/s 173 of the Motor Vehicles Act, 1988 against the award dated 27th January, 2011 passed by the 5th Additional Motor Accident Claims Tribunal, Bilaspur (in short "the Tribunal"), in Claim Case No. 95/2010, fastening the liability to pay the amount of compensation upon the appellant, jointly and severally, along with respondent Nos. 5 & 6. Cross-objection has also been filed by respondents No. 1 to 3/claimants for enhancement of the amount of compensation.
2. Brief facts of the case, as per version of the claimants in the claim petition, are that on 7.11.2008 at about 5.30-5.45 pm, Rakesh Tamrakar was going from Malenia Dam to Gourela by motorcycle. However, as soon as he reached in front of Millennium Hotel, respondent No. 5 came there from the opposite direction by driving auto in a rash and negligent manner and dashed the motorcycle of Rakesh Tamrakar. After the accident, respondent No. 5 fled from the place of occurrence alongwith the auto. On account of the said accident, Rakesh Tamrakar sustained grievous injuries and he was taken to Govt. Hospital, Gourela, where during the course of treatment he died. Report of the accident was lodged at Police Station Gourela, whereupon offence u/s 304A of the IPC was registered against respondent No. 5 under Cr. No. 271/08. After completing investigation, charge sheet was filed against respondent No. 5 before the competent criminal Court.
3. At the time of accident, the deceased was aged about 22 years. He was a plumber by profession and thereby used to earn Rs. 8,000-10,000/- per month. The entire family was dependent upon the deceased. Therefore, the parents, brother and sister of the deceased, being his legal heirs/dependents, filed a claim petition u/s 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") before the Tribunal for a total compensation of Rs. 19,10,000/- against the death of Rakesh Tamrakar under various heads.
4. However, learned Tribunal, after hearing counsel for the parties and on close scrutiny of the evidence adduced by the parties before it, by the impugned award granted a total compensation of Rs. 3,54,732/- in favour of the claimants, fastening the liability, jointly and severally, upon the appellant alongwith respondents No. 5 & 6.
5. Heard learned counsel for the parties, perused the LCR as also the impugned award.
6. In addition to oral arguments, learned counsel for the appellant/Trust has also submitted written arguments. On behalf of the appellant/Trust, five-fold arguments have been advanced. Firstly, that respondent No. 1 to 3/claimants have not been able to prove that the alleged offending vehicle i.e. auto rickshaw was involved in the accident dated 7.11.2008. Secondly, the claimants have not been successful in proving that the accident had occurred on account of rash and negligent driving of the alleged vehicle by driver/respondent No. 5 Jeevan Kumar Rathore because for filing a claim petition u/s 166 of the Act, 1988, rashness and negligence on the part of driver of the offending vehicle is a sine qua non. Thirdly, learned counsel for the appellant has strenuously argued and has also contended in his written arguments that on the date of accident i.e. 7.11.2008, the appellant/Trust was neither the owner nor was in possession of the alleged offending vehicle, as the same was sold prior to the accident on 22.8.2008 and possession was delivered on the same date to respondent No. 6 Satyanarayan Yadav and all the necessary papers were handed over to him for getting the vehicle transferred in his name in the records of the RTO, which is apparent from perusal of the agreement of sale (Ex. D/4) and the consent letter (Ex. D/5), both dated 22.8.2008. Fourthly, it has been contended that the compensation has been assessed by the Tribunal on the higher side and instead of applying multiplier of 10, the multiplier of 17 has been adopted. Lastly, the counsel has argued that th
