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1997 (2) JLJ 399
S.K. Dubey and Rajeev Gupta, JJ.
Laxmi Gontia (Smt.) and another v. Nandlal Tahalramani and others
Misc. Appeal No. 83 of 1994; against the award passed by 9th Addl. Motor Accidents Claims Tribunal in M. V. Case No. 20 of 1989; Decided on 8.8.1997.
When the case was assigned to the Tribunal, the Tribunal was not correct in saying that it had no jurisdiction. In any case, it is not a case where there was inherent lack of jurisdiction; but, according to the distribution memo, it ought to have been transferred to the Member, Additional Motor Accidents Claims Tribunal, Katni. However this would not make the award passed by the Tribunal invalid in view of sub-section (2) of section 15 of the Madhya Pradesh Civil Courts Act, 1958, as the Tribunal did not refer the case to the Member, Motor Accidents Claims Tribunal for transfering the case to the Member, Additional Motor Accidents Claims Tribunal, Katni. [Para 8]
(2) Criminal P.C., 1973 -- S. 154 -- FIR -- is not substantive piece of evidence -- it puts the prosecution agency in motion to bring to book the guilty party. AIR 1972 SC 283 and M.A. No. 465/96 relied on. [Para 9]
(3) Court -- is charged with responsibility of guiding the procedure and apprising parties of their duties.
The Court is charged with the responsibility of guiding the procedure and apprising the parties whenever necessary of their duties. As legal procedure is full of traps; if a litigant happens to stumble, the Courts should discharge its responsibility except when this is the result of an attempt to be clever and overd`reach the Court or to do something inequitable to the other side. In the latter event the party concerned should be dealt with severely. 1960 JLJ 1184 and 1962 JLJ 604 relied on. [Para 10]
(4) Criminal P.C., 1973 -- S. 161 -- statement recorded under -- even statement recorded by criminal Court or order of criminal Court -- not binding in claim case. 1993 JLJ 788 relied on. [Para 11]
(5) Motor Vehicles Act, 1939 -- S. 110A -- negligence established by eye witnesses, chargesheet, FIR seizure of vehicle etc. -- no cross examination on the point of identity of vehicle -- driver and owner not examined themselves -adverse inference has to drawn -- identity established. [Para 13]
(6) Evidence Act, 1872 -- S. 114 (g) -- claim case arising out of motor accident -- identity of vehicle disputed -- neither driver nor owner of vehicle coming in witness-box -- adverse inference has to be drawn. [Para 13]
(7) Legal Maxims -- res ipsa loquitor -- may be applied to avoid hardship to claimants -- circumstances speak for themselves -- accident also tells its own story. AIR 1977 SC 1735 followed. [Para 14]
(8) Motor Vehicles Act, 1939 -- S. 110B -- dependency Rs. 6,000/- p.a. -compensation comes to Rs. 1,10,000/-.. [Para 15]
¼1½ flfoy U;k;ky; vf/kfu;e] 1958 ¼e-iz-½ && /kkjk 15¼1½] ¼2½ rFkk ¼3½ && eksVj nq?kZVuk nkok ekeyk] lnL;] eksVj nq?kZVuk nkok vf/kdj.k }kjk vij lnL; dVuh ds LFkku ij lnL; tcyiqj dks varfjr && varfjrh vf/kdj.k }kjk mi/kkjk ¼3½ ds v/khu funsZ‘k ugha fd;k x;k && vij lnL; }kjk U;k;fu.kZ;u vf/kdkfjrkjfgr ugha gSA tc ekeyk vf/kdj.k dks leuqnsf‘kr fd;k x;k Fkk] vf/kdj.k ;g dgus esa lgh ugha Fkk fd mls vf/kdkfjrk ugha FkhA fdlh Hkh n‘kk] esa ;g ,slk ekeyk ugha gS ftlesa varfuZfgr vf/kdkfjrk dk vHkko Fkk] fdarq forj.k Kkiu ds vuqlkj ;g lnL;] vij eksVj nq?kZVuk nkok vf/kdj.k] dVuh dks varfjr fd;k tkuk pkfg, FkkA rFkkfi] blls] e-iz- flfoy U;k;ky; vf/kfu;e] 1958 dh /kkjk 15 dh mi/kkjk ¼2½ dh –f"V ls] vf/kdj.k }kjk ikfjr vf/kfu.kZ; voS/k ugha gks tk,xk fd vf/kdj.k us ekeyk lnL;] vij eksVj nq?kZVuk nkok vf/kdj.k] dVuh dks varfjr djus ds fy, lnL;] eksVj nq?kZVuk nkok vf/kdj.k dks funsZ‘k ugha fd;k FkkA ¿ iSjk 8À ¼2½ naM izfØ;k lafgrk] 1973 && /kkjk 154 && izFke bfRryk fjiksVZ &&lkjoku~ lk{; ugha gS && ;g vfHk;kstu vfHkdj.k dks nks"kh i{kdkj dks vius vkpj.k dks ckcr Li"Vhdj.k nsus dks ck/; djus ds fy, vfHk;kstu vfHkdj.k dks xfr‘khy cukrh gSA , vkb vkj 1972 ,l lh 283 rFkk izdh.kZ vihy Ø- 465@96 voyafcrA ¿ iSjk 9À ¼3½ U;k;ky; && izfØ;k ds ekxZn‘kZu vkSj i{kdkjksa dks muds drZO;ksa ls voxr djkus ds mÙkjnkf;Ro ls izHkkfjr gSA U;k;ky;] izfØ;k ds ekxZn‘kZu vkSj tc&dHkh vko‘;d gks] i{kdkjksa dks muds drZO;ksa] ls voxr djkus ds mÙkjnkf;Ro ls izHkkfjr gSA fof/kd izfØ;k] dwVkoikrksa ls Hkjh gksus ls] ;fn dksbZ i{kdkj yM+[kM+krk gS] U;k;ky;ksa dks vius mÙkjnkf;Ro dk fuokZg djuk pkfg,] flok; ml n‘kk ds fd tc ;g l;kuk cuus vkSj U;k;kyu; dks /kks[kk nsus vFkok vU; i{k ds fy, U;k;fo#) dqN djus dk ifj.kke gksA i‘pkr~orhZ ?kVuk dh n‘kk esa lacaf/kr i{k ds izfr dBksjrk cjruk pkfg,A 1960 ts ,y ts 1188 rFkk 1962 ts ,y ts 604 voyafcrA ¿ iSjk 10 À ¼4½ naM izfØ;k lafgrk] 1973 && /kkjk 161 && ds v/khu vfHkfyf[kr dFku && nkafMd U;k;ky; }kjk vfHkfyf[kr dFku vFkok nkafMd U;k;ky; dk vkns‘k Hkh && nkok ekeys esa vkc)dj ugha gSA 1993 ts ,y ts 788 voyafcrA ¿ iSjk 11À ¼5½ eksVj ;ku vf/kfu;e] 1939 && /kkjk 110d && mis{kk] izR;{kn‘khZ lk{khx.k] vkjksii=] izFke bfRryk fjiksVZ] ;ku ds vfHkxzg.k vkfn ls LFkkfir && ;ku dh ‘kuk[r dks fcanq ij izfrijh{kk ugha && pkyd vkSj Lokeh dh Lo;a dh ijh{kk ugha dh xbZ && izfrdwy fu"d"kZ fudkyk tkuk gksxk && ‘kuk[r LFkkfirA ¿ iSjk 13À ¼6½ lk{; vf/kfu;e] 1872 && /kkjk 111 ¼N½ && nkok ekeyk eksVj nq?kZVuk ls mn~Hkwr && ;ku dh ‘kuk[r fooknxzLr && pkyd vkSj u Lokeh gh lk{kh dV?kjs esa vk, && izfrdwy fu"d"kZ fudkyk tkuk gksxkA ¿ iSjk 13À ¼7½ fof/kd lw= && Lo;a izek.k && nkosnkjksa dks foifÙk cpkus ds fy, ykxw fd;k tk ldrk gS && ifjfLFkfr;k¡ Lo;a ds ckjs esa crkrh gS && nq?kZVuk Hkh Lo;a dk o`Ùkkar crkrh gSA , vkb vkj 1977 ,l lh 1735 vuqlfjrA ¿ iSjk 14À ¼8½ eksVj ;ku vf/kfu;e] 1939 && /kkjk 110[k && vkfJrrk #- 6]000@& izfro"kZ && izfrdj #- 1]10]000@& gksrk gSA ¿ iSjk 15À
Dubey, J. -- 1. This is an appeal under section 173 of the Motor Vehicles Act, 1988 against the award dated 3.1.1994 passed in M.V. Case No. 20/89 by the IXth Additional Motor Accidents Claims Tribunal, Jabalpur (for short 'the Tribunal') .
2. Facts giving rise to this appeal are thus: The legal representatives of the deceased Ashok Gontiya who died in a motor accident on 1.6.1986 at 7.30 p.m. filed an application under section 110A of the Motor Vehicles Act, 1939 (for short 'the Act') to claim compensation of Rs. 2,26,400/- against the respondents on the averments that on the ill-fated day Ashok Gontiya was going on his cycle with Vinod Gontiya sitting at the carrier from Katni-Murwara towards Peerbaba on the National High Way No.7, near Home Guards Camp; a Mini Bus Standard 20, of which registration No.1, owned by respondent No.2 and insured with respondent No.3 hit the cylist as a result of which cyclist received injuries and died. A Dehati Nalish was recorded at Crime No. 0/86 at the Police-Station Tikuri on the information given by Vinod Gontiya at about 21.45 in the night. On Dehati Nalish a first information report was recorded and an offence under section 304-A and 338 of the Indian Penal Code was registered at Crime No. 130/86. During investigation, the police arrested the respondent No. 1 who then was released on bail. Vehicle No. MKJ 9702 (Standard 20) Mini Bus white colour was seized vide seizure memo dated 19.6.1986 from the custody of respondent No. 1, which then was given on Supurdgi to respondent No.2. After investigation, a charge sheet was filed under section 304-A of the Indian Penal Code against respondent No. 1 in the Court of Judicial Magistrate First Class, Katni. Learned Judicial Magistrate discharged the respondent No.1 holding that prima facie from the statement of witnesses recorded during the investigation rash and negligent driving of the Mini Bus by the respondent No. 1 is not established.
3. The respondent No.1 and 2 in their written statement filed before the Tribunal took the defence that at the time of the accident, respondent No.1 was not driving the Mini Bus Standard 20, as he was sick. It was also stated that the vehicle did not go on the road on the relevant date and time. A plea that the Claims Tribunal at Jabalpur has no territorial jurisdiction as the accident occurred in Katni, was also raised. Respondent No.3 in its written statement denied the liability. To establish negligence, the appellants examined A W 2 Kaluwa who stated that Mini Bus dashed the deceased from front side, when Ashok and Vinod were on their cycle on the left side of the road. Vindo Gontiya could not be examined as he died during the perdency of the case. The driver and owner of the Mini Bus did not appear in the witness box. The respondents did not adduce any evidence in support of the defence set up in the written statement. The Tribunal after appreciation of evidence held that the identity of the Mini Bus involved in the accident was not established as the witnesses admitted that they could not notice the Registration Number of the Mini Bus which is also missing in the first information report. On the question of compensation, the Tribunal held that the deceased was earning about Rs. 25/- per day out of which Rs. 7/- were deducted on personal living expenses of the deceased; dependency was estimated at Rs. 18/- per day; the amount was worked out (18 x 30 x 12 x 30) to Rs. 1 ,94,400/- applying multiplier of 30 in the multiplicand of 6480/-. In that Rs. 10,000/- for consortium; Rs. 10,000/- for loss of company and deprivation of love and affection to children and Rs. 2,000/- for funeral expenses were added; thus total compensation of Rs. 2,26,400/- was determined; but as the identity of the vehicle was not established, the application for compensation was dismissed.
4. Shri Ashok Lalwani, learned counsel for the appellants submitted that from the evidence of Kuluwa (A W 2) and Khajanchi Prasad (A W 3), the ident
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