Kusum & Ors vs Satbir & Ors

14.6.2006 framed three issues for

adjudication. Of those three issues, since

the Tribunal came to a finding against the

appellants on the first issue, the other

findings of the Tribunal in the second and

third issue were, according to Tribunal, of

no avail to the appellants. On the first

issue the Tribunal came to a finding that

the involvement of the offending vehicle

being tempo No.HR-34-8010 has not been

proved and since on this issue the

Tribunal's finding went against the

appellants, no compensation was awarded.

On an appeal filed against the said award,

the High Court by the impugned judgment

dated 21.5.2010 also affirmed the finding

of the Tribunal.

6. The main reason why both the Tribunal and

the High Court reached their respective

findings that vehicle No.HR-34-8010 was not

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involved in the accident are primarily

because of the fact that in the FIR which

was lodged by one Ashok Kumar, brother of

the victim, neither the number of the

vehicle nor the name of the driver was

mentioned.

7. Admittedly, the facts were that the brother

of the deceased, Ashok Kumar while walking

on the road heard some noise and then saw

that a white colour tempo had hit his

brother and sped away. Immediately, he

found that his brother, being seriously

injured, was in an urgent need of medical

aid and he took him to the hospital. Under

such circumstances it may be natural for

him not to note the number of the offending

vehicle. That may be perfectly consistent

with normal human conduct. Therefore, that

by itself cannot justify the findings

reached by the Tribunal and which have been

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affirmed by the High Court. In the present

case, evidence has come on record from the

deposition of one Dheeraj Kumar, who

clearly proved the number of the vehicle.

The evidence of Dheeraj Kumar is that he

was going along with one Ashok Kumar on a

scooter to know the condition of one of

their relative in Mahendergarh Hospital. As

they reached at turning at Mahendergarh

road a tempo bearing No. HR-34-8010 of

white colour being driven in a rash and

negligent manner came from behind and

overtook their scooter. Dheeraj Kumar was

not driving the scooter. Dheeraj Kumar saw

that the tempo hit Surender, the victim, as

a result of which he fell down but the

tempo did not stop after the accident.

However, the evidence of Dheeraj Kumar is

that they followed the same and caught the

driver. On their asking, the driver

disclosed his name as Satbir son of Shri

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Ram Avtar. Thereafter, they went to

Mahendergarh Hospital and on the next day

when they were returning, they found police

and other persons were present at the spot.

Dheeraj Kumar told the name of the driver

and gave the number of the tempo to the

police. Dheeraj Kumar claims to have seen

the incident with his own eyes. When

Dheeraj Kumar was cross-examined, he stated

that the deceased Surender is not related

to him nor was he his neighbour. He was

his co-villager. Dheeraj Kumar also told

that he knows the driver of the vehicle

bearing No. HR-34-8010. He denied all

suggestions that he was giving his evidence

to help the victim. Both the Tribunal and

the High Court have refused to accept the

presence of Dheeraj Kumar as his name was

not disclosed in the FIR by the brother of

the victim.

6 8. This Court is unable to appreciate the

aforesaid approach of the Tribunal and the

High Court. This Court is of the opinion

that when a person is seeing that his

brother, being knocked down by a speeding

vehicle, was suffering in pain and was in

need of immediate medical attention, that

person is obviously under a traumatic

condition. His first attempt will be to

take his brother to a hospital or to a

doctor. It is but natural for such a

person not to be conscious of the presence

of any person in the vicinity especially

when Dheeraj did not stop at the spot after

the accident and gave a chase to the

offending vehicle. Under such mental

strain if the brother of the victim forgot

to take down the number of the offending

vehicle it was also not unnatural.

7 9. There is no reason why the Tribunal and the

High Court would ignore the otherwise

reliable evidence of Dheeraj Kumar. In

fact, no cogent reason has been assigned

either by the Tribunal or by the High Court

for discarding the evidence of Dheeraj

Kumar. The so-called reason that as the

name of Dheeraj Kumar was not mentioned in

the FIR, so it was not possible for Dheeraj

Kumar to see the incident, is not a proper

assessment of the fact-situation in this

case. It is well known that in a case

relating to motor accident claims, the

claimants are not required to prove the

case as it is required to be done in a

criminal trial. The Court must keep this

distinction in mind.

10. Reference in this connection may be made to

the decision of this Court in Bimla Devi

and others v. Himachal Road Transport

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Corporation and others [(2009) 13 SCC 530],

in which the relevant observation on this

point has been made and which is very

pertinent and is quoted below:-

"In a situation of this nature, the

Tribunal has rightly taken a holistic

view of the matter. It was necessary to

be borne in mind that strict proof of an

accident caused by a particular bus in a

particular manner may not be possible to

be done by the claimants. The claimants

were merely to establish their case on

the touchstone of preponderance of

probability. The standard of proof

beyond reasonable doubt could not have

been applied."

11. In respect of the finding reached by the

Tribunal on the assessment of compensation,

this Court finds that the Tribunal has used

the multiplier of 16, even though the age

of the deceased has been determined to be

29. We find that the Tribunal erred by

applying the multiplier of 16. However,

considering the age of the victim, the

multiplier of 17 should be applied in view

of the decision of this Court in Sarla

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Verma (Smt) and others v. Delhi Transport

Corporation and another reported in (2009)

6 SCC 121, and the chart at page 139. It

is not in dispute that in the instant case

the claim for compensation has been filed

under Section 166 of the Motor Vehicles

Act. This Court finds that if the

multiplier of 17 is applied then the amount

comes to Rs.3,93,428.45 apart from the

amount of funeral expenses and the amount

granted for loss of consortium. Taking all

these together the amount comes to a little

more than four lacs of rupees.

12. The Court, however, in exercise of its

power under Article 142 and considering the

number of claimants, of which three are

minor children, is of the opinion that for

doing complete justice in the case and by

taking a broad and comprehensive view of

the matter, an amount of Rs.6 lacs

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including the amounts of consortium and

funeral expenses would meet the ends of

justice. The Court, therefore, grants a

compensation of Rs.6 lacs considering the

fact that the victim was the sole wage

earner in the family and he left behind

three minor children and a widow. The said

amount is to be paid along with interest @

7% from the date of presentation of the

claim petition till the date of actual

payment.

13. In respect of the dispute about licence,

the Tribunal has held and, in our view

rightly, that the insurance company has to

pay and then may recover it from the owner

of the vehicle. This Court is affirming

that direction in view of the principles

laid down by a three-Judge Bench of this

Court in the case of National Insurance

Company Limited v. Swaran Singh and others

reported in (2004) 3 SCC 297.

1 14. The appeal is, therefore, allowed. The

judgments of the Tribunal and the High

Court are set aside. The insurance company

is to pay the aforesaid amount in the form

of a bank draft in the name of appellant

no.1 with interest as aforesaid within a

period of six weeks from date and deposit

the same in the Tribunal. This direction

should be strictly complied with by the

Insurance Company.

15. This Court directs the Tribunal to take

steps for opening a bank account in the

name of the appellant no.1 in a

Nationalised Bank and deposit the demand

draft in that account. If, however, there

is any bank account in the name of the

appellant no.1, the demand draft is to be

deposited in that bank account.

1 16. No costs.

.......................J.

(G.S. SINGHVI)

.......................J.

New Delhi (ASOK KUMAR GANGULY)

March 02, 2011

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