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2013 Supreme(MP) 421
HIGH COURT OF MADHYA PRADESH
G.D. Saxena, J.
Union of India and others v. Smt. Girja Sahu and others
Miscellaneous Appeal No.560 of 2011 (Gwalior) : against the award of Second Additional Member of the Motor Accident Claims Tribunal, Dabra, passed in Claim Case No.31 of 2009; Decided on 1.8.2013.
Yogesh Singhal for appellants;
H.K. Shukla for respondents.
Headnote:Motor Vehicles Act, 1988 -- S.173 -- Civil P.C., 1908 -- O.41 R.25 -- death in road accident -- involvement of alleged offending vehicle not ascertained -- award based on wrong opinion made without proper trial not justified -- award dismissed -- case remitted to trial Court for a fresh decision after ascertaining the bus involved in the accident.
Held : Since, at this stage, it is not discernible that from whom and from which vehicle the accident has caused. This being so, the question of the appellants being liable for amount in respect of the accident in respect of the present driver of the offending vehicle does not arise. In this view of the matter and having considered the principles as laid down in the aforementioned cases by Hon’ble apex Court as well as this Court coupled with the provisions contemplated under Order 41 rule 25 of CPC, this Court thinks it appropriate to remit the matter to learned MACT for taking a fresh decision after ascertaining the involvement of the offending vehicle which came from Tekanpur to Gwalior on the fateful day on 31st August, 2007 at about 7:45 a.m. and met with an accident, causing injuries to Om Prakash Sahu resulting his death. The learned MACT shall insist the appellants for production of the fact finding report as mentioned in the deposition of the witnesses examined by the non- applicants and shall also examine the drivers of the appellants who were deployed at the relevant time for driving the buses on the route in question and thereafter shall decide the case in accordance with law. 2001(2) MPLJ 27 and AIR 2007 SC 1609 discussed.
eksVj ;ku vf/kfu;e] 1988 & /kkjk 173 & flfoy izfdz;k lafgrk] 1908] vk-41 fu-25 & lM+d nq?kZVuk esa e`R;q & vfHkdfFkr mYya?kudkjh ;ku dk varxzZLr gksuk vfHkfuf’pr ugha & mfpr fopkj.k ds fcuk cukbZ xbZ jk; ij vk/kkfjr vf/kfu.kZ; U;k;laxr ugha & vf/kfu.kZ; [kkfjt & ekeyk nq?kZVuk esa lfEefyr cl dk vfHkfuf’p; djus ds i’pkr~ u, fljs ls fofu’p; ds fy, fopkj.k U;k;ky; dks izfrizsf”krA
vfHkfu/kkZfjr % D;ksafd] bl izdze esa] ;g Ks; ugha gS fd fdlls rFkk fdl ;ku ls nq?kZVuk dkfjr gqbZA ,slk gksus ds dkj.k mYya?kudkjh ;ku ds orZeku MªkbZoj ds laca/k esa nq?kZVuk ds laca/k esa jde ds fy, vihykFkhZ nk;h gksus dk iz’u mRiUu ugha gksrk gSA ekeys ds bl n`f”Vdks.k ls rFkk flfoy izfdz;k lafgrk ds vkns’k 41 fu;e 25 ds v/khu fn, x, mica/kksa ds lkFk ekuuh; mPpre U;k;ky; rFkk bl U;k;ky; )kjk iwoksZfYyf[kr ekeyksa esa vf/kdfFkr fl)karksa ij fopkj djus ij] ;g U;k;ky; ml mYya?kudkjh ;ku dk tks 31 vxLr] 2007 ds nqHkkZX;iw.kZ fnu yxHkx 7%45 cts lqcg Vsduiqj ls Xokfy;j vk;k rFkk nq?kZVukxzLr gqvk ftlls vkse izdk’k lkgw dks {kfr;k¡ dkfjr gqbZ ifj.kkeLo:i mldh e`R;q gqbZ] lfEefyr gksuk vfHkfuf’pr djus ds i’pkr~ u, fljs ls fofu’p; djus ds fy, ekeys dks fo)ku eksVj nq?kZVuk nkok vf/kdj.k vihykFkhZx.k ls vukosndksa )kjk ftu lkf{k;ksa dh ijh{kk dh xbZ muds vfHklk{; esa ;Fkk mfYyf[kr rF; dk irk yxkus okyh fjiksVZ djus dk vkxzg djsxk rFkk vihykFkhZx.k ds mu MªkbZojksa dh tk¡p djsxk ftUgsa lqlaxr le; ij iz’uxr ekxZ ij cl pykus ds fy, vfHkfu;ksftr fd;k x;k Fkk rFkk rRi’pkr~ fof/k ds vuqlkj ekeys dk fofu’p; djsxkA 2001¼2½ ,e ih ,y ts 27 rFkk , vkb vkj 2007 ,l lh 1609 foosfprA
1. Being aggrieved by the Award dated 13th December, 2010 passed in Claim Case No.31/2009 by the Second Additional Member of the Motor Accident Claims Tribunal, Dabra (Gwalior), appellant Union of India through Secretary, Government of India, Ministry of Home Affairs, New Delhi and the Director BSF Academy Tekanpur, District Gwalior has preferred an appeal under section 173 of the Motor Vehicles Act, 1988 with a prayer to set aside the impugned findings awarding thereby compensation in the sum of Rs.3,82,000/- along with 7% interest p.a. to the claimants.
2. The facts in short are that on 31st August, 2007 at about 7:45 a.m., Om Prakash Sahu (since deceased) was riding as a pillion rider on a motorbike driven by Neeraj Dhakad towards Gwalior. When they passed through Jorasi Temple at Jhansi Highway, green coloured bus hit them from back side causing serious injuries to Om Prakash Sahu. Thereafter the police with the help of other by standers shifted the injured for treatment to J.A. Hospital, Gwalior. The injured died during treatment. A Dehati Nalish was lodged by Neeraj Dhakad in J.A. Hospital, just after reaching the injured for treatment the Hospital with the Head Constable of the Police Station Bilaua, alleging involvement of bus of green coloured belonging to BSF. Thereafter, the FIR was lodged on the basis of said Dehati Nalish which was written in J.A. Hospital, Gwalior. After investigation, the final report, for want of the person who caused the accident was filed before the Criminal Court. The claimants, who happened to be the wife and children filed a claim petition before the learned Tribunal seeking award of Rs.44,86,000/-. The learned Tribunal after considering the evidence as adduced by the parties passed the award of Rs.3,82,000/- against the owner and the driven of the bus No. PB 08/AJ-6980 involved in accident which is sought to be challenged in the present appeal on the sole ground that the alleged bus was not involved in the accident.
3. The contention of the learned counsel appearing for the appellants is that the award passed by the learned Tribunal on vicarious liability of the BSF employee, i.e., the driver involved in road accident is in contravention of the relevant provisions of law and the facts as adduced by the parties. It is submitted that the offending BSF school bus which was alleged to have caused the accident, had already reached at the place of destination at Central School Premises and after allowing the kids of BSF personnels was in rest timings for its return journey back to the BSF Headquarter Premises at Tekanpur. It is contended that the relevant time on which the accident had happened there was not at all possible for picking up the school students and thereafter coming at the root from Tekanpur to Gwalior and hit the on-going bike and caused injuries to a pillion rider of the bike. It is submitted that the learned Tribunal has failed to assess that an unknown motor vehicle was involved in the accident and the school bus owned by the BSF was involved on mere assumption expressed by some of the eye-witnesses. It is submitted that the Tribunal did not properly consider the evidence as adduced by the respondents-appellants, herein. Therefore, on the basis of above submissions, it is prayed that the award passed by the Tribunal may be set aside by discharging the appellants from the liability of making payment of the award.
4. On the other hand, the learned counsel appearing for the claimants submitted that the learned Tribunal has rightly found that the offending vehicle was involved in accident and rightly passed the award, which does not require to be disturbed. It is therefore prayed that the appeal may be dismissed by upholding the findings arrived at by the learned Tribunal while passing the award.
5. Heard the learned counsel for both the sides and also perused the record and the law applicable to the case at hand.
6. Now, the question for consideration before this Court is whether
