Topic: Smt. Amrit Kaur And Ors. vs Chaman Lal And Anr - Secondary Evidence

Smt. Amrit Kaur And Ors. vs Chaman Lal And Anr
Equivalent citations: 1993 ACJ 770, AIR 1994 HP 21 - Bench: D Gupta, L S Panta


Devinder Gupta, J.

1. Claimants have preferred this appeal against the Award made on 23rd March, 1987 by Motor Accident Claims Tribunal (II), Shimla, award- ing a sum of Rs. 15,000/- only under Section 92-A of the Motor Vehicle Act, 1939 (hereinafter referred to as "the Act") and dismissing the claim petition as barred by limitation.

2. On 9th October, 1982, Ram Singh, the husband of appellants Nos. 1 and 2 and father of appellants Nos. 3 to 5, who was working as Book Binder in Government of India Press, Shimla, got lift in Truck bearing registration No. CHW-505, owned by Respondent No. 1, from Police Barrier Boileaganj, Shimla. He was to go to Lady Reading Hospital, Shimla to see his sister's daughter. Lift was obtained at about 12.00 p.m. The truck had hardly covered a distance of about 1 Furlong when it rolled down and fell below the Tuti-kandi road. As a result of this accident, both the truck driver and said Shri Ram Singh died on the spot. Imputing rash and negligent driving on the part of the truck driver, a claim petition was preferred by claimants appellants under Section 110-A of the Act, before the Motor Accident Claims Tribunal, Shimla on 29th March, 1983, impleading Respondent No. 1 alone as party. The said claim petition was registered as M.A.C. No. 8-S/2 of 1983.

3. The Respondent though served in the claim petition, failed to put in appearance and on 2nd July 1983, he was proceeded against ex parte. The case was fixed for 27th July, 1983 for the appellant's evidence, which was neither summoned, nor produced. Case was adjourned to 5th September, 1983, on which date, statement of Head Constable Rikhi Ram, PW 1 was recorded, who produced the relevant record from Police Station, Boileaganj about the accident and proved F.I.R., in support of the claimants' allegation that accident had occurred due to rash and negligent driving on the part of the Truck Driver. No other evidence was present. The case was adjourned to 6th September, 1983, for remaining evidence on which date none appeared for the claimants and the claim petition was dismissed in default.

4. On 28th March, 1984, fresh petition was preferred, which was registered as M.A.C. No.68-S/2 of 1984 and later on renumbered as 7-S/2 of 1985. Appellants claimed a sum of Rs. 1,50,000/- as com- pensation due to the death of Ram Singh in the accident, in question along with interest @ 12% per annum from the date of filing of the claim petition till payment. Respondent No. 1, alone was impleaded as party and it was stated that the claimants had not been in a position to obtain the requisite information about insurance of the vehicle. It was stated in para. 23 of the claim petition that the petition is within time in respect of minor-petitioners and as regards other petitioners, an application was being moved separately for condonation of delay. In the application for condonation of delay, it was pointed out that the petitioners are illiterate ladies hailing from remote area in village Malog of Tehsil and District, Shimla. For want of financial resources, they were not in a position to attend the Court and also could not produce evidence. There was no deliberate lapse on their part. Some of the claimants were minor and they prayed that the delay in preferring the claim petition be condoned.

5. Respondent No. I filed his reply dated 2nd March, 1986, on 7th March, 1986. In para 11 of the reply it was stated that the truck, in question, was insured with New India Assurance Company Ltd., vide Policy No. 4561215479 dated 26th June, 1982 valid from 25th June, 1982 to 24th June, 1983 issued by its Chandigarh Branch and liability, if any, is that of Insurance Company. Accident was admitted but the fact that deceased died in accident was denied for want of knowledge. Factum of rash and negligent driving on the part of the Driver was also denied.

6. On an application having been moved by claimant, respondent No. 2 Insurance Company was impleaded as party. Notice was issued; Respondent No. 2 also filed its reply. Without admitting the fact that vehicle had been insured, it was stated that driver of the truck was not possessed of any valid driving licence for hilly area and the same was being driven in contravention of the policy as there was no valid route permit and R. C. Vehicle was not fit for being plied on road. Insurance Company denied its liability stating that under the terms of policy no claim could be laid on the admitted facts against it. Both the respondents also took up a plea that the claim petition was not within the period of limitation.

7. The claims Tribunal on the basis of the pleadings of the parties framed the following issues:--

"1. Whether the accident resulting in the death of Ram Singh occurred due to some rashness or negligence on the part of the driver of the vehicle or the owner of the vehicle? OPA.

2. If issue No. I is proved, whether the petitioners are entitled to any compensation? If so how much? OP A.

3. Are there sufficient grounds for condoning the delay in filing the petition for compensation? OPA.

4. Whether the Insurance Company is not liable to pay the compensation in view of the preliminary objection raised in the reply? OPR.

5. Whether the liability of the Insurance Company is limited in case it is proved that it is liable to pay the compensation? If so what is the limit of its liability? OPR.

6. Relief."

8. It was held that there was no sufficient evidence on record that accident had occurred due to rash and negligent driving on the part of the driver. In the absence of any evidence, the claims Tribunal recorded a finding that the claim petition was not within the period of limitation and consequently claimants were not held entitled to any amount of compensation. It was also held that since there was no time limit prescribed for preferring a claim under no fault liability under Section 92-A of the Act, an award in the sum of Rs. 15,000/- was made. The Insurance Company in view of the terms of policy Ex. RX was held liable to indemnify the claimants. It is this award, which is under challenge in this appeal.

9. The amount of compensation awarded, namely, Rs. 15,000/- along with interest was deposited by the Insurance Company. An amount of Rs. 12,000/- falling to the share of claimants-appellants other than claimant-appellant No. 3 was released earlier. The remaining sum of Rs. 3,000/- falling to the share of claimant-appellant No. 3 was also released on 30th December, 1991.

10. On 16th November, 1992, when the case came up for hearing, after noticing the fact that claimants-appellants had preferred petition earlier, which had been dismissed in default, record thereof was also called in this Court. After receipt of that record, Respondent No. 1 was asked to put in appearance since an objection had been raised during the course of arguments by Shri A. K. Goel, Advocate that Insurance Company had merely tendered copy of the policy and the same had not been proved in accordance with law. Respondent No. I appeared in Court and his statement was recorded on 21st December, 1992.

11. We have heard learned counsel for the parties and gone through the record. The first question arising for determination is as to whether any ground had been made out by the appellants seeking condonation of delay in preferring the claim petition. The claim petition was preferred by the two widows and three minor sons of the deceased, whose ages as on the date of filing of the second claim petition on 28th March, 1984 were about II, 14 and 17 years respectively. The earlier petition was preferred within period of limitation. Section I10-A(3) of the Act provided that no application for compensation shall be entertained unless it is made within six months of the date of occurrence of the accident provided that the Claims Tribunal may entertain an application after the expiry of the said period of six months if it is satisfied that the applicants were prevented by sufficient cause from making the application in time.

12. It has not been disputed that the application was preferred within the period of limitation. It was dismissed in default on 6th September, 1983 when nobody appeared on behalf of the claimants. After 6 1/2 months of the dismissal of the application, fresh petition was preferred along with an application seeking condonation of delay. Three of the claimants were still minors. The reason stated was that the two widows were illiterate and rustic village women residing in the remote part of tehsil and District Shimla having no financial assistance. This fact was disputed. Though the facts stated in, the application were not repeated by the claimant while appearing as PW 1 but it was stated that the claimants were solely dependent upon the deceased, who was working as Book Binder in Government of India Press, Shimla and in part-time he was also doing the work of watch repair/radio repairing etc. Besides pay, his income was Rs. 1000/- per month. No other evidence was examined on the question of limitation nor any evidence in rebuttal was given by the respondents. It is not disputed that three claimants were minor on the date of accident as also on the date when claim petition was preferred. The first claim petition was not dismissed under Order 9, Rule 8, C.P.C. and as such there was no prohibition in law in preferring the second petition. It is also not disputed that the claimants-appellants Nos. 1 and 2 the two widows of the deceased are not residing in the remote part of District Shimla or are not illiterate. In the background of these facts, it cannot be said that delay in preferring the claim petition occurred due to any extraneous circumstances since mala fides are not at all alleged.

13. The law relating to compensation in M.A.C. cases has been enacted by the State for the benefit of the dependents of the unfortunate victims and as such the claim should not be defeated on such like technical pleas especially when earlier claim petition had been preferred within the period of limitation in which respondent No. 1 had not put in appearance and claimant had also examined one witness.

14. The legislature conferred the power to condone the delay by specifically inserting proviso to Sub-section (3) of Section 110-A of the Act, in order to enable the Tribunals to do substantial justice to parties by disposing of the claim petitions on merits. The expression "sufficient cause", employed by the legislature is adequately elastic to enable the claims Tribunal to apply the law in a meaningful manner which sub-serves the ends of justice that being the life-purpose for the existence of the institution of Courts. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1353, while construing expression "sufficient cause" contained in Section 5 of the Limitation Act, 1963, the Court evolved the following six principles :

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize justice on technical grounds but because it is capable of removing injustice and is expected to do so."

15. In the instant case, it has not been shown as to what prejudice has been caused to the respondents in not preferring the second claim petition in time. Claimants were represented by a counsel in the first claim petition. The reason is not forthcoming from the lawyer as to why he failed to discharge his obligation in not putting in appearance and in not taking steps within the prescribed period in getting the petition restored. For the fault or inaction on the part of the lawyers, claimants who are poor widows and minors, cannot be penalised. There is no presumption that delay is occasioned deliberately or on account of culpable negligence. Since law is enacted to assess and award compensation to the dependents of the unfortunate victims of the accident, claims Tribunal, ought to have, by construing sufficient cause liberally condoned the delay. We are satisfied that sufficient cause had been made out and claim petition ought to have been decided on merits.

16. The claims Tribunal has not assessed the amount of compensation but since there is sufficient material on record, we are not inclined to remit the case for fresh decision and instead proceed to assess the amount of compensation ourselves. But before doing so, we may deal with the question of liability.

17. The accident has not been disputed by the respondents. The manner, in which the accident occurred, namely, that the Truck fell down in a Khud on Tuti Kandi road is also not disputed. Claimant appellant No. 1 appeared as PW1 and stated that the truck went off the road. The circumstances how and in what manner the truck went off the road ought to be within the special knowledge of Respondent No. 1, the owner of the vehicle, who, while appearing as PW 1 failed to give any explanation as to how the vehicle instead of being plied on the road fell in Khud. Since the Driver also died in accident, it is a fit case when the principle of res ipsa loquitor can be applied and we are of the view that the accident occurred due to rash and negligent driving on the part of the driver for which Respondent No. 1 is liable to pay the compensation to the claimant-appellants.

18. The original insurance policy was in possession of Respondent No. 1, which has not been produced. According to Respondent No. 1, the vehicle was insured for the relevant period with Respondent No. 2. Particulars of the insurance policy along with its number etc. were stated in his reply. Resppndent No. 1 has placed on record policy Ex. RX. On comparison, we find that particulars tally with the details furnished by Respondent No. 1. Learned counsel for respondent No. 1 contended that copy of the policy has merely been tendered and not proved in accordance with law and as such, the same cannot be read in evidence. At this stage, we may notice that after the close of the claimant's evidence on 16th September, 1986, respondents were called upon to produce their evidence. No evidence was produced. The Insurance Company served a Notice under Order 12, Rule 8, C.P.C. upon Respondent No. 1 to produce the original policy. In response to the notice, Respondent No. 1 filed its reply stating that all relevant documents, including the registration etc. had been handed over by him to the transferee of the vehicle, namely, Subhash Chander of Chandigarh and as such, the original policy was not in his possession. On 9th March, 1987, the learned counsel for the insurance company tendered copy of the policy Ex. RX, and closed its evidence. No objection was raised at the time when copy of policy was tendered that the same was not genuine. Also, no objection was raised for admitting the copy of policy of evidence. The documents, as such, were admitted in evidence without any objection. Statement of Respondent No. I was recorded on 23rd February, 1987. When objection was raised during arguments in this appeal, respondent No. 1 was examined in this Court on 21st December, 1992. He was not in a position to deny the fact that the document Ex. RX was not true copy of the original policy though he admitted that the particulars stated therein were the correct particulars. Period of the policy is also the same. Name and address etc. is also the same. Policy is printed and we have no manner of doubt that it is not the true copy of the policy. Section 110-C of the Act deals with the procedure and power of Claims Tribunal. It provides that in holding any inquiry under Section 110-B, the Claims Tribunal may, subject to any rules may follow such summary procedure as it thinks fit. Limited powers of Civil Court for the purposes of taking evidence on oath and of enforcing attendance of witnesses and for compelling and discovery of documents etc. were conferred by virtue of Sub-section (2) of Section 110C of the Act. This Court in AIR 1976 Him Pra 93 Dharam Vir Kapur v. State of Hirnachal Pradcsh held that claims Tribunal is not strictly governed by the rules of evidence and vouchers and receipts produced by person claiming damages and not objected to by the opposite party can be considered by the Tribunal in awarding compensation. Since in the instant case also, we find that it was first respondent who himself gave the particulars of the policy and did not raise any objection when copy of insurance policy was tendered and admitted in evidence, and also failed to produce the original himself or making any effort till date, in refuting the correctness of the copy, it does not lie in his mouth to raise the objection that the same cannot be read in evidence.

19. There has come in evidence that the deceased was given lift in the vehicle, which admittedly was a goods vehicle. He was to go to the Hospital immediately and was carrying bedding. According to PW 4, the deceased gave Rs. 2/- by way of fair to the Driver. By no stretch of imagination it can be held, as contended by the learned counsel for the respondents that the deceased was travelling in the vehicle as owner of goods and Rs. 2/-paid by him was by way of fare of carriage of goods. The Insurance Company cannot be fastened with the liability in such like circumstances in view of the clear terms contained in Section II(i)(ii)(c) of the terms of the policy. However, liability of the Insurance Company to meet the requirement of claim under Section 92 A of the Act, cannot be disputed in view of Sub-clause (b) contained in Section ll(i)(ii).

20. The deceased was aged about 50 years at the time of the accident and was serving as Book Binder in Government of India Press, Shimla. PW 3 Som Nath Sharma with the help of the record stated that the total emoluments at the time of the death were Rs. 810.10 and the deceased was likely to be promoted as Section Holder and in the event of promotion, his salary was likely to be increased to Rs. 1000/-. According to claimant Amrit Kaur (PW 1), income of the deceased was Rs. 1000/- over and above the salary from watch repairs etc. Neither there is any corroboration to the statement nor there is any contradiction. Claimants are the two widows and three minor sons of the deceased. In the absence of any other corroborative evidence that the deceased was earning any additional income besides salary, we have to take the income as Rs. 810/-. There is also no evidence as to what was the net income. In the ordinary course, after usual deduction, we can safely take Rs. 700/- as the carry-home, out of which is Rs. 100/- may be taken as personal expenses of deceased upon himself. Thus making available a sum of Rs. 600/ - for the mainenance of the entire family, including himself. Applying the principle enunciated in 1980 Ace CJ 1: (AIR 1980 Him Pra 16) H.P. Road Transport Corporation v. Pandit Jai Ram, Rs. 134/- has to be deducted as the amount of maintenance for the deceased. Thus the total value of dependency would be Rs. 466/- per month. Multiplying it by 12, Rs. 5,592/- has to be taken as the dactum figure which we take as a round figure of Rs. 5,600/-. This has to be multiplied by a suitable multiplier. Keeping in view the age and other surrounding circumstances, multiplier of 15 would be reasonable and suitable multiplier. Multiplying the dactum figure of Rs. 5,600/- with the multiplier of 15, the total amount comes to Rs. 84,000/- and adding thereto the conventional figure of Rupees 3000/- for the loss of expectancy of life, we consider that Rs. 87,000/- would be the just amount of compensation to which the claimants are entitled.

21. As noticed above, a sum of Rupees 15,000/ - along with interest, has already been deposited by the Insurance Company, consequently, the said amount of Rs. 15,000/- will be liable to be deducted and the balance amount of compensation shall be payable to the claimants appellants by respondent No. 1 along with interest @ 10% per annum from the date of filing of the claim petition, namely, 28th March, 1984 till the date of payment.

22. Consequently, we allow the appeal and modify the impugned award made, by holding that the claimants are entitled to a sum of Rs. 87,000/- along with interest thereupon @ 10% per annum form the date of filing claim petition till payment. Amount of Rs. 15,000/- paid by the Insurance Company shall be adjusted. The balance amount, the claimants shall be entitled to recover from Respondent No. 1. We leave the parties to bear their respective costs.