published in http://164.100.12.10/hcorders/orders/2013/macma/macma_2066_2013.html
| MACMA 2066 / 2013 |
|
* HONOURABLE SRI JUSTICE L. NARASIMHA REDDY
AND
* HONOURABLE SRI JUSTICE S.V. BHATT
+ M.A.C.M.A.No.2066 OF 2013
% Date: 03-09-2013
# Bolleddu Anil Raj .. Appellant
v.
$ P.Sambasiva Rao and others .. Respondents
! Counsel for the appellant : Sri G.Manohar.
^ Counsel for the respondent No.3 : Sri K.Ashok Ramarao.
< GIST:
> HEAD NOTE:
? CASES REFERRED:
1. (2011) 1 Supreme Court Cases 343
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY
AND
THE HON’BLE SRI JUSTICE S.V.BHATT
M.A.C.M.A.No.2066 of 2013
JUDGMENT : (Per LNR,,J)
This is an unfortunate case
where a promising Fighter pilot of Indian Air Force became totally disabled hardly within one week from the date of his having been commissioned.
Equally unfortunate, is the indifference and perversity exhibited by the Motor Accidents Claims Tribunal towards an officer, whose bright career was shattered on account of the reckless driving by a driver of a car.
The appellant was selected and Commissioned as Fighter Pilot in the Indian Air Force on 13.06.1987. He had also participated in the ceremony in the presence of the then Defence Minister.
16.06.1987 was his birthday. He wanted to celebrate both the events, namely, his birthday and selection in the prestigious Indian Air Force, in the presence of his family members.
On 15.06.1987, he was proceeding to his native place from Vijayawada in an Auto rickshaw bearing No.AHK 1434 at about 08.00 p.m.
The Auto rickshaw was hit by a car resulting in a serious injury to his spinal cord.
Initially, the appellant was treated in the Government Hospitals at Vijayawada and Guntur and, thereafter, he was air lifted to the Military Hospital at Kirki.
It was found that there was total dislocation of Vertibra DV-12 and LV-1 with Paraplegia.
He became totally unfit to discharge the functions of pilot and, accordingly, he was discontinued from service through order, dated 24.03.1988.
Ever since the accident, he is confined to a wheel chair.
The appellant filed M.V.O.P.No.452 of 1987 in the Motor Accident Claims Tribunal – cum – II Additional District Court, Krishna at Vijayawada. Since the Presiding Officer of the Tribunal had expressed his inability to proceed with the matter, the O.P. was transferred to the Court of III Additional District Judge, Vijayawada, which too, designated as Motor Accident Claims Tribunal.
The appellant pleaded that the accident occurred on account of the rash and negligent driving on the part of the driver of a Fiat Car bearing No.ADG 3737 and that his entire future is shattered. He claimed a sum of Rs.20,00,000/- as compensation under different heads.
The 1st respondent is owner and the 2nd respondent is driver of the car. Both of them remained ex parte.
The O.P. was contested by the 3rd respondent, the Insurance Company, by filing a written statement.
According to the 3rd respondent, the vehicle involved in the accident was an Ambassodor Car with registration No.AIK 3736 and since that vehicle did not have insurance coverage at the relevant point of time, the appellant got another number i.e. ADG 3737 inserted in the proceedings.
They pleaded collusion between the appellant, and the respondents 1 and 2.
Through order, dated 28.09.1996, the Tribunal dismissed the O.P. holding that the involvement of the vehicle bearing No.ADG 3737 is doubtful. Hence, this appeal.
Sri G. Manohar, learned counsel for the appellant, submits that the order passed by the Tribunal is totally perverse and totally negative approach was exhibited in the entire proceedings.
He contends that though witnesses were examined by the 3rdrespondent,
the Tribunal took upon itself, the task of examining C.Ws. 1 to 7 and recorded a finding that the vehicle bearing No.ADG 3737 may not have caused the accident, ignoring the purport of the evidence of such witnesses.
He submits that once the accident is proved, at least, an effort ought to have been made to determine the compensation so that it can be claimed even against the person who can be held responsible.
The learned counsel further submits that the Tribunal lost sight of the fact that the claim was made by the appellant under a Social Security Measure and on account of its negative approach, the appellant was denied the benefit under the Motor Vehicles Act.
Sri K. Ashok Ramarao, learned counsel for the
3rd respondent, submits that
3rd respondent, submits that
a perusal of the F.I.R. and other related documents filed in the proceedings clearly demonstrate that the accident occurred on account of rash and negligent driving by the driver of the Ambassador Car bearing No.AIK 3736 and,
just to ensure that the claim is made against the Insurance Company, the vehicle bearing No.ADG 3737 was brought into the picture.
He submits that the Tribunal has analyzed the oral and documentary evidence carefully, and arrived at just and proper conclusions.
On the basis of the pleadings before it, the Tribunal framed the following points for consideration:
1. Whether the car involved in the accident was ADG 3737 or AIK 3736?
2. Whether the drivers of the Fiat Car ADG 3737 and the Ambassador Car AIK 3736 do not possess driving licenses?
3. Whether the accident was due to the rash and negligent driving of the auto rickshaw AHK 1434 by its driving or due to the rash and negligent driving of the car that collided with it or by the rash and negligent driving by both the drivers?
4. Whether the petitioner is entitled for compensation, if so, at what amount and from which of the respondents?
5. To what relief?
On behalf of the appellant, P.Ws.1 to 4 were examined and Exs.A.1 to A.27 were marked. No witnesses were examined on behalf of the 3rd respondent, but Exs.B.1 to B.5 were marked. The Tribunal examined C.Ws.1 to 7 and has taken on record Exs.C.1 to C.8.
The points that arise for consideration before us are:
(1) Whether the accident occurred on account of the involvement of the vehicle bearing No.ADG 3737?
(2) Whether the appellant is entitled to be paid any compensation and, if so, the extent thereof?
POINT No.1:
Normally, in the claims presented under the Motor Vehicles Act, the burden on a claimant stands discharged, once he places before the Tribunal copies of the F.I.R. pertaining to the case relating to the accident, charge sheet and the judgment in the criminal case, if delivered.
In the instant case, the 3rd respondent disputed the very involvement of the vehicle bearing No.ADG 3737, a Fiat car owned by the 1st respondent.
Therefore, the appellant had to file fairly large number of documents to prove his contention.
Substantial portion of the documentary evidence comprised of the record pertaining to treatment for the injuries.
P.W.1 is the appellant himself and he stated the manner in which the accident occurred and explained the nature of injuries suffered by him. Nothing was elicited from him to discredit his version, either about the occurrence of accident or the nature of injuries suffered by him. P.W.2 is the father of the appellant. He too was traveling in the same auto rickshaw in which the appellant was traveling. He narrated the facts that have bearing upon the accident and the suffering of injuries by the appellant.
An important witness in relation to the occurrence of accident is P.W.3, the driver of auto rickshaw. He stated that at about 08.00 p.m. when he was driving the vehicle on Bandar road with P.Ws.1 and 2 as passengers, a Fiat Car came in the opposite direction, suddenly it turned to the right side and hit the auto rickshaw on its left side.
Except that the counsel for the 3rdrespondent wanted to test the memory of P.W.3 on certain unrelated matters, nothing was elicited to contradict his version. P.W.4 is a doctor who treated the appellant for sometime and he certified the nature of disability suffered by him.
Since the occurrence of accident was not disputed, but the involvement of the vehicle i.e. Fiat car was doubted by the 3rd respondent, heavy duty rested upon them to prove that contention.
It is important to note the plea of the 3rd respondent in the written statement, on this aspect. It reads:
“This respondent reliably understands and believes the same to be true that on 15.06.1987 at 19.50 hrs. on Vijayawada Bandar Road, near P.W.D. grounds the auto bearing Regn. No.AHK 1434 in which some persons were traveling collided with an Ambassador car bearing Regn. No.AIK 3736 belonging to Smt.K.V. Dhanalakshmi, wife of Basava Punna Rao and that a lady was driving the car at the time of the accident.
The accident was witnessed by a number of pedestrians passing on the road at the time and was widely reported in the daily newspapers.
On the date of the accident, the said Ambassador car AIK 3736 was not covered under any Insurance Policy with this respondent and that at Third Party policy was obtained subsequently by the owner on 16.07.1987 bearing Policy No.150702/22/1/2421 valid from 16.07.1987 to 15.07.1988, obtained from Branch Office-II of Vijayawada of this respondent.
As the above policy was taken subsequently to the accident, it does not cover any risk on the date of the accident.
Immediately after the accident, the Ambassador car involved in the accident was reversed back by the driver and the lady driver with the car made good her escape.
The auto driver Bandela Babu Rao reported the matter to the nearby II Town Traffic Police Station, Vijayawada and after recording his statement, the police registered the F.I.R. under Crime No.40/1987.”
From a perusal of this, it is evident that it was mostly the belief and assumption of the 3rd respondent, than a confirmed fact.
It was obligatory on the part of the 3rd respondent to prove the facts pleaded by them. However, they did not choose to examine even a single witness. If there is failure or disinclination on the part of the 3rd respondent to examine any witness, the Tribunal ought to have drawn inference that the plea taken by them is not proved and accepted the version of the appellant.
However, the learned Presiding Officer has exhibited his detective tendencies and paved the way for examination of as many as seven persons as Court witnesses.
He lost sight of the fact that what was before him was a petition filed under the Social Security Scheme formulated by the Parliament and the findings are to be recorded only on the basis of probabilities. The nature of trial conducted and the discussion undertaken by him in the O.P. virtually makes the trial in a sensational criminal case humble.
Added to that, the effort, which is normally made by the prosecution to prove the guilt of the accused, was made by the Tribunal itself, that too, for a purpose exactly opposed to the one to advance the social security scheme.
The Appellate Courts are required to maintain restraint, while commenting about the functioning of a subordinate Judicial Officer. In spite of our utmost restraint, we are forced to call the entire proceedings as perverse.
The reasons are -
(a) though the 3rd respondent did not examine even a single witness nor did they file a single document, the Tribunal has undertaken the trial by itself by examining as many as seven Court witnesses and taking on record eight documents as Exs.C.1 to C.8, and
(a) though the 3rd respondent did not examine even a single witness nor did they file a single document, the Tribunal has undertaken the trial by itself by examining as many as seven Court witnesses and taking on record eight documents as Exs.C.1 to C.8, and
(b) even if one goes by the evidence of the Court witnesses, it is clear that C.W.3, the owner of the Ambassador Car, stated that his vehicle was not involved at all and
C.W.4, the owner of the Fiat car, admitted that his car was involved in the accident, its driver was found guilty of rash driving and he paid fine; and still, the Tribunal found that the involvement of the Fiat Car bearing No.ADG 3737 was doubtful.
The type of discussion undertaken by him can be demonstrated with the following paragraph in the order:
“The point as to whether the vehicle which caused the accident by hitting the auto AHK 1434 was Ambassador car AIK 3736 or Fiat Car ADG 3737 depends upon the extent of damage and the location of damage to the offending vehicle. P.W.1 has deposed that the car which was coming opposite to the auto hit on the left side of the auto on its front side. P.W.2 has deposed that the left side bumper of the car hit on the left side of the auto. P.W.3, the auto driver has stated that the car while coming from opposite direction suddenly swerved towards its right side and dashed the auto on its left side. Even in the statement given by P.W.3 to the police on 15.06.87 night leading to registration of crime, it was stated that the Fiat car bearing No.AIK 3736 came at a great speed and while avoiding rickshaw, went off to the extreme right side of the road and suddenly the driver of the car swerved the car towards left side and dashed the auto on the left side. Ex.C.1 when read with the evidence of C.W.1 goes to show that when C.W.2 inspected the Ambassador car AIK 3736 and auto AHK 1434, he noticed that left front bumper corner rubber of the car was damaged and the front wind screen glass of the auto was damaged and the top was completely damaged. As the left side of the car and the left side of the auto collided, not only the auto driver P.W.3 sustained multiple injuries on the left knees and upper leg in addition to abrasions on the left elbow and wrist as can be noted from Ex.B.5, certified copy of wound certificate, but P.W.2 who is the father of P.W.1 also sustained injuries on the left parietal region and an abrasion on left knee joint as can be seen from the certified copy of the wound certificate marked as Ex.B-3. The receipt of injuries by P.Ws.2 and 3 on the left side parts of their bodies also goes to prove that the offending car dashed mostly on the left portion of the auto. Ex.B-1 is a cutting from Andhra Jyoti newspaper in which news regarding the accident was published along with the photo of auto AHK 1434 and it shows that the auto was badly damaged.”
This is a rare case in which the Presiding Officer of Motor Accident Claims Tribunal has gone to the extent of disbelieving the statement of the owner of a vehicle that it was involved in the accident, even after the driver of the vehicle was convicted in the criminal case. The curious part of it is that the material used by the Presiding Officer to discredit the conviction handed out by a court, is the statement recorded under Section 162 of Cr.P.C. by the Inspector of Police.
In the F.I.R in Crime No.40 of 1987, which was marked as Ex.A.19, the version presented by the auto rickshaw driver i.e. P.W.3 was consistent. It is clear to the fact that the accident had occurred on account of auto rickshaw being hit by the Fiat Car. Obviously, it was night and the auto rickshaw driver was also injured, he did not furnish the number of the car. He clearly stated that the car, which caused the accident, had fled away from the site.
The reason for mentioning the number of Ambassador Car bearing No.AIK 3736 in the F.I.R. appears to be that it was lying by the side of the road at a short distance from the accident spot. However, after the investigation was conducted, the number of the accident vehicle was mentioned as ‘ADG 3737’ in the charge sheet marked as Ex.A.20.
The case ended in conviction. We are yet to come across an instance where the Motor Accident Claims Tribunal would disbelieve the contents of the charge sheet. The relaxation in this regard, if at all, is to the effect that even if a criminal Court acquits the driver of the charge of rash and negligent driving, it would not be binding on the Tribunal and the occurrence of the accident has to be taken as proved, with the very registration of the crime.
The Tribunal has devoted most of its discussion in the order running into 45 pages only to this aspect and it can safely be presented as typical case of perverse approach.
We totally disagree with the findings recorded by the Tribunal and hold that the accident occurred on account of involvement of the Fiat Car bearing No. ADG 3737 owned by the 1st respondent and insured with the 3rd respondent. Point No.1 is, accordingly, answered.
POINT No.2:
Once it is proved that the appellant suffered injuries in the accident to the extent of his being declared unfit to hold the post of Pilot, he is certainly entitled to be paid compensation.
In the ordinary course, the matter has to go back to the Tribunal for fresh consideration and disposal, since no effort was made in that direction earlier.
However, since the O.P. is of the year 1987, we feel it appropriate to deal with that aspect here itself. In process, we intend to take certain undisputed facts into account.
At the time of accident, the appellant was aged about 20 years and his salary was Rs.3,046/- p.m. His annual income would be Rs.36,552/-. The appropriate multiplier for a person of 20 years of age is ‘18’. Thus, the loss of earnings would
be Rs. 6,57,936/- (Rs.36,552/- x 18). Though deductions are effected while awarding compensation on account of loss of earnings, the same is impermissible in case the victim of the accident suffered permanent disability. This is reiterated recently inRaj Kumar Vs. Ajay Kumar and another[1].
be Rs. 6,57,936/- (Rs.36,552/- x 18). Though deductions are effected while awarding compensation on account of loss of earnings, the same is impermissible in case the victim of the accident suffered permanent disability. This is reiterated recently inRaj Kumar Vs. Ajay Kumar and another[1].
It was also held by the Hon’ble Supreme Court in that very judgment that increase, towards future prospects, to the extent of 30% must be allowed, in cases of salaried persons whether in public or private employment. On this count, a further sum of Rs.2,00,000/- deserves to be added and, accordingly, the loss of earnings comes to Rs.8,57,936/- and it is rounded off to Rs.8,00,000/- (Rupees Eight lakhs only).
The nature of disability is proved by filing Exs.A.8 and A.9. The appellant has become unfit even to walk on his own accord and he is confined to a wheel chair. Taking into account the amount spent on treatment, extra nourishment and medical assistance that he needs for the rest of the life, and the pain and suffering he has undergone at the time of accident, and treatment and the which he would suffer for the rest of his life, we feel it appropriate to award a sum of RS.10,00,000/- (Rupees Ten lakhs only) on all counts. Hence, the appellant is entitled to be paid a total sum of Rs.18,00,000/- (Rupees Eighteen lakhs only) as compensation. The point No.2 is, accordingly, answered.
In the result, the appeal is allowed and the order under appeal is set aside. As a result, M.V.O.P.No.452 of 1987 is allowed and a sum of Rs.18,00,000/- (Rupees Eighteen lakhs only) is awarded to the appellant as compensation. The amount shall carry interest at 6% p.a. from the date of filing of the petition till the date of realization. The respondents are held jointly and severally liable to pay the said amount. The appellant shall be entitled to withdraw a sum of Rs.5,00,000/- on such deposit. Out of the balance, Rs.5,00,000/- shall be kept in a fixed deposit for three (3) years by the Tribunal and the balance, for a period of six (6) years. On maturity of the F.D.R., the Tribunal shall pay the corresponding amount, together with accrued interest, to the appellant. There shall be no order as to costs in this appeal.
_____________________
L. NARASIMHA REDDY, J.
_____________________
S.V.BHATT, J.
3rd September, 2013
Note: Mark L.R. copy.
b/o
ksp/cbs
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.