In the High Court of Punjab and Haryana at Chandigarh
CM No. 25087-CII of 2008 and
F.A.O. No. 4968 of 2008 (O&M)
Date of decision: December 01, 2009
Joginder
.. Appellant
Vs.
Jahida and others
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Raj Mohan Singh, Advocate for the appellant.
Ms. Poonam Sharma, Advocate for
Mr. Shiv Kumar, Advocate for the respondents.
A.N. Jindal, J
Challenge in the appeal is to the order dated 13.2.2007 passed
by the Motor Accident Claims Tribunal, Faridabad, (herein referred as 'the
Tribunal'), awarding compensation to the tune of Rs.2,40,000/- along with
interest @ 7.5% per annum in favour of the claimants-respondents (herein
referred as 'the claimants') on account of the death of Jaffruddin in a motor
vehicular accident. Now this appeal has been preferred by the owner/driver
of the offending vehicle.
The version of the claimants as set out in the claim petition is
that on 5.7.2004 at about 8.30 p.m. Jaffruddin (since deceased) was coming
on motor cycle No.HR26P-5330 from Kurali to village Nakhrola. In the
meantime, the respondent No.1 while driving the tractor bearing registration
No.UP-81-J-8766 rashly and negligently came from the opposite side and
struck against the motor cycle. Resultantly, Jaffruddin suffered injuries and
died. FIR No.212 dated 6.7.2004 under Sections 279/304-A IPC was
registered. Consequently, the present claim petition was also filed with
further averments that the deceased was 24 years old and was earning
Rs.6000/- per month being mason and was supporting the family.
Since the tractor was not insured, therefore, the respondent
contested the case by filing written statement wherein he denied all the
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allegations and stated that he was falsely involved in the criminal case and
also in this application for compensation. Eventually he prayed for
dismissal of the claim petition.
From the pleadings of the parties, the following issues were
framed :-
1. Whether the accident dated 6.7.2004 had taken place due
to rash and negligent driving of truck No.UP-81-J-8766
by respondent No.1 thereby causing the death of
Jaffruddin?OPP
2. If issue No.1 is proved, whether the petitioners are
entitled to any amount of compensation, if so, how much
and from whom?OPP
3. Whether the petition is not maintainable?OPR
4. Relief.
In order to prove the issues, the claimants have examined ASI
Pal Singh (PW2) who proved certified copy of the FIR Ex.P1, certified copy
of the driving licence Ex.P2, certified copy of the postmortem examination
Ex.P3 and that of registration certificate Ex.P4. Prem Chand Verma (PW3)
had tendered into evidence his affidavit Ex.PW3/A and the claimant Jahida
herself stepped into the witness box as PW-1. Thereafter, the claimants
closed their evidence after tendering into evidence copy of the
superdginama Ex.P5 and copy of the order dated 22.8.2004 Ex.P6. To the
contrary, the respondents tendered into evidence certified copy of judgment
dated 5.12.2005 Ex.R1, statement of Raju mark A and of Prem Verma mark
B.
Arguments heard.
Perusal of the record shows that rash and negligent driving by
the respondent stands duly established on the record. No doubt, name of the
driver and registration number of the tractor has not been mentioned in the
FIR (Ex.P1), but ASI Pal Singh (PW2) has categorically testified that during
investigation, number of the tractor and the driver were disclosed by Prem
Chand Verma who is the author of the FIR. As regards the contention of
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the learned counsel for the appellant that testimony of Prem Chand Verma
could not be relied upon as, in the criminal case, he has deposed that he did
not know the name of the driver as well as the registration number of the
tractor, it may be observed that the same is not tenable because the said
statement was not put to the witness when he was examined in this case. It
is well settled law that if the driver of the offending vehicle does not come
forward to deny his negligence, then adverse inference is to be drawn
against him. In this regard, reliance could be placed on the judgment
delivered by this Court in case Raju and others vs. Sukhwinder Singh and
others, 2006 (4) RCR (Civil) 82 (P&H). Moreso, if at all, the appellant-
respondent has been acquitted in the criminal case vide judgment Ex.R1,
then it has got no effect on the merits of the claim petition, as Prem Chand
Verma (PW3) has stated against the appellant-respondent regarding driving
of the offending vehicle rashly and negligently. Moreover, yardstick in the
appreciation of the evidence in the criminal case and civil case are entirely
different. In the criminal case, the prosecution is required to prove the case
beyond shadow of reasonable doubt, whereas, in civil case, much less in the
claim petition, where summary proceedings are carried out, the case is to be
established on preponderance of the probabilities. In the instant case, from
the evidence on file, it is proved that in all probabilities, it was the
appellant-respondent who was at fault for the accident. Findings of the
criminal court are not binding on the Tribunal and the Tribunal has to come
to its independent findings and conclusions on the basis of the evidence
before it. Reliance could be placed on the judgment delivered in case
Pepsu Road Transport Corporation Patiala vs. Joginder Kaur 2001 (3)
RCR (Civil) 166 (P&H).
As regards the argument qua compensation, the deceased being
mason was a skilled labourer, therefore, the Tribunal has rightly assessed
his income @ Rs.2400/- per month and after deducting 1/3rd which he must
have been contributing towards himself, the annual dependency of the
claimants was determined at Rs.1600/- per month and Rs.19,200/- per
annum. He was aged about 24 years at the time of his death, therefore,
keeping in view the age of the parents, who were between 50 to 60 years at
the time of accident, the suitable multiplier of 12 was applied in this case. It
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may further be observed that the Tribunal has awarded a sum of Rs.9500/-
on the other heads. The claimants have failed to support his argument that
the compensation was inadequate. Even otherwise, this appeal is barred by
558 days’ delay which stands not explained. As such there are no grounds
to condone the delay.
Resultantly, finding no merit, the application is dismissed.
Consequently, the appeal also fails.
December 01, 2009 (A.N. Jindal) deepak Judge