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2019 Supreme(All) 214
ALLAHABAD HIGH COURT (LB)
JASPREET SINGH, J.
Madhuri Devi - Appellant
Versus
Mamta Gulati and Another - Respondent
First Appeal From Order No. 169 of 2007
Decided On : 14-02-2019
R.P. Tripathi, Adv., Ashok Mehrotra, Adv.
Headnote:
Motor Vehicles Act, 1988 – Section 173 – Claim Petition – Tribunal has erred in dismissing claim petition on ground that merely because an FIR of accident concerned was not lodged – Held, It is thus well settled that in motor accident claim cases, once foundational fact, namely, actual occurrence of accident, has been established, then Tribunals role would be to calculate quantum of just compensation if accident had taken place by reason of negligence of driver of a motor vehicle and, while doing so, Tribunal would not be strictly bound by pleadings of parties – While deciding cases arising out of motor vehicle accidents, standard of proof to be borne in mind must be of preponderance of probability and not strict standard of proof beyond all reasonable doubt –Thus, this Court is the opinion that learned Tribunal did not perceive claim petition in proper light and also failed to keep principles of law as extracted above in mind while deciding claim petition – Court finds that findings returned by Tribunal is erroneous and is consequently set aside – There is no established proof of income of deceased and a statement was made on oath that deceased was earning Rs. 5,000/- per month – Considering circumstances, this Court finds that it would be appropriate if monthly income of deceased is taken to be Rs. 4,000/- per month – Thus, in light of above, claimant shall be entitled to get compensation – Claim petition allowed. (Para 27, 28 and 31)
Facts of the Case:
This appeal has been filed by claimant under Section 173 of Motor Vehicles Act, 1988 against judgment and award passed by A.D.J., in Claim Petition whereby claim petition of appellant has been dismissed.
Findings of the Case:
It is thus well settled that in motor accident claim cases, once foundational fact, namely, actual occurrence of accident, has been established, then Tribunals role would be to calculate quantum of just compensation if accident had taken place by reason of negligence of driver of a motor vehicle and, while doing so, Tribunal would not be strictly bound by pleadings of parties – While deciding cases arising out of motor vehicle accidents, standard of proof to be borne in mind must be of preponderance of probability and not strict standard of proof beyond all reasonable doubt –Thus, this Court is the opinion that learned Tribunal did not perceive claim petition in proper light and also failed to keep principles of law as extracted above in mind while deciding claim petition – Court finds that findings returned by Tribunal is erroneous and is consequently set aside – There is no established proof of income of deceased and a statement was made on oath that deceased was earning Rs. 5,000/- per month – Considering circumstances, this Court finds that it would be appropriate if monthly income of deceased is taken to be Rs. 4,000/- per month – Thus, in light of above, claimant shall be entitled to get compensation.
Result: Claim petition allowed
JASPREET SINGH, J.
This appeal has been filed by the claimant under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 06.11.2006 passed by A.D.J., Court No.1, Lucknow in Claim Petition No.40/2004 (Smt. Madhuri Devi vs. Smt. Mamta Gulati), whereby the claim petition of the appellant has been dismissed.
2. The Court has heard Shri R.P. Tripathi, learned counsel for the appellant and Shri Ashok Mehrotra, who has appeared on behalf of the respondent No.2. None appeared on behalf of the respondent No.1, consequently, the appeal has been heard ex-parte against her.
3. The primary contention of the learned counsel for the appellant is that the Tribunal has erred in dismissing the claim petition on the ground that merely because an FIR of the accident concerned was not lodged, this fact prevailed in the mind of the Tribunal and on the aforesaid ground, the claim petition has been dismissed.
4. It has been urged that the claimant was able to substantiate its case by filing documentary and oral evidence including by producing an eye witness who was examined and was cross-examined by the respondent and despite no contradiction in his testimony was noticed and he established the fact of the accident including the death of the deceased yet ignoring the evidence and taking a hyper-technical view, the Tribunal has erred in rejecting the claim petition.
5. Per contra, learned counsel for the respondent argued taking this court through the record indicating that the appellant herself was unable to establish her case and did not bring on record cogent evidence by which the accident could be established and thus it is in view thereof that the Tribunal has rightly rejected the claim petition and the same requires no interference from this Court.
6. The Court has given consideration to the submissions of the respective parties and the record has also been carefully perused.
7. The record indicates that the claimant instituted a Claim Petition No.40/2004 wherein she stated that Shri Ram Naresh her husband was engaged in the business of selling vegetables and was able to earn Rs. 5,000/- per month from the said business. On the fateful day, he had gone to Mukeempur Choraha under the jurisdiction of the Police Station Sidhauli in District Sitapur and loaded his vegetables on Truck No.HR-37-B-9123. As soon as the truck moved ahead but its carriage was not properly secured and the same accidentally opened as a result of which Ram Naresh, who was also sitting along with his goods, fell down from the moving tuck sustained injuries. He was taken to the Medical College for his treatment, however, he succumbed to his injuries and it is in view thereof that the claimants being the wife and children and mother of the deceased filed the claim petition seeking a compensation of Rs. 9,75,000/-.
8. The owner of the truck namely Smt. Mamta Gulati filed her written statement bearing Paper No.A-6, wherein a general defence was taken that the accident did not occur from the vehicle in question and that there was no documentary evidence supporting the averments made in the claim petition. Thus, it was alleged that all the averments were false and fabricated. Accordingly, the claim petition is liable to be dismissed, however, the owner further took the defence that the claim made by the claimants was exaggerated and that the claimant whose husband was engaged as a vegetable hawker, he is not entitled to get compensation of more than Rs. 3,00,000/-. It was also urged that the vehicle in question was duly insured and, therefore, if at all there is any liability, the same is liable to the indemnified by the insurance company.
9. Significantly, while filing the written statement, the owner had also annexed a copy of the insurance cover note as well as a copy of the driving licence of the driver of the truck in question, as part of its
