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CASE TITTLE: THE ORIENTAL INSURANCE CO. LTD. V SHIV PRASAD INDRAMANI@ SHIV PRASAD

CASE NO: MAC.APP. 194/2021 & CM APPL. 16684/2021

ORDER ON: 27 May 2024

QUORUM: JUSTICE DHARMESH SHARMA

FACTS OF THE CASE:

The facts leading to the present appeal in question is that the claimants are the parents of the deceased-Bhanu Prakash Bhatt aged about 19 years, a first year B.Tech student, who sustained fatal injuries in a road accident that occurred on 10.04.2015. The claimants-parents filed a claim petition under section 166 read with Section 140 of the M.V. Act claiming compensation to the tune of Rs. 34 lakhs under various heads stating that the deceased was travelling in the bus bearing registration No. HR-74A-3695 and as he was in the process of alighting from the offending bus at outer Ring Road  the driver of the offending bus suddenly speeded up the bus, as a result of which, the deceased lost his balance and was run over under the rear wheels of the offending bus. This resulted in the registration of FIR under Sections 279/338 of the IPC with Police Station Burari. The offending bus was being driven by the respondent No.1/Mubin Ahmed and was owned by the respondent No.2/Haryana Roadways and admittedly, insured for third party risks with the insurer i.e., the Oriental Insurance Company Limited. the learned Tribunal dismissed the claim petition under Section 166 of the M.V. Act. However, coming to the relief part, it converted the claim petition to one under Section 163-A of the M.V. Act and awarded a statutory compensation of Rs. 5 lakhs plus Rs. 40,000/- to each of the parents towards loss of consortium besides Rs. 15,000/- each towards funeral expenses and loss of estate. Accordingly, a total compensation of Rs. 6,10,000/- was awarded to the claimants-parents along with interest @ 6% per annum from the date of filing of the DAR i.e. 15.09.2015 till realization. Needless to say, the liability to pay the compensation was fastened upon the insurance company.Hence this petition.

LEGAL ISSUES:

Whether the deceased Bhanu Prakash suffered fatal injuries in an accident that took place on 10.04.2015 at about 17:00 hrs involving Bus bearing registration No. HR-74A-3695 driven by the Respondent No.1 rashly and negligently, owned by the Respondent No.2 and insured with the Respondent No.3?

Whether the petitioners are entitled for compensation? If so, to what amount and from whom?

LEGAL PROVISIONS:

Section 338 of the IPC, talks about Causing grievous hurt by act endangering life or personal safety of others

under section 166 of MVC Act, talks about applications for compensation.

Section 140 of the M.V. Act, explains how to apply for compensation after a motor vehicle accident.

CONTENTIONS OF APPELLEANT:

The apelleant through their counsel, Mr. Pradeep Gaur, has assailed the impugned judgment-cum-award passed in MAC.APP. 194/2021 primarily on the ground that the learned Tribunal had no powers to suo moto convert a claim petition under Section 166 of the M.V. Act into one under Section 163-A of the M.V. Act. the counsel  vehemently urged that there was no application moved on behalf of the claimants-parents so as to convert their claim petition in such a manner and the learned counsel heavily relied upon a decision in the case of Deepal Girishbhai Soni v. United India Insurance Co. Ltd, Lastly, it was urged that the quantum of compensation has not been awarded as per the law.the counsel also  urged that the testimony of PW-2/Wasim was flawed since there were a lot of embellishments in his testimony and the learned Tribunal rightly concluded that no responsibility could be attributed upon the driver of the offending bus.

CONTENTIONS OF THE RESPONDENT:

The respondent through their counsel, Mr. Pankaj Gupta, urged that there was no bar for the learned Tribunal to suo moto convert the claim petition into one under Section 163-A of the M.V. Act, for which, counsel also  relied upon a decision of this Court in United India Insurance Company Ltd. v. Rita Devi and Raj Narain Jha v. Jagdish8 As regards MAC. APP. 225/2021 preferred by the claimants parents, Mr. Pankaj Gupta, counsel  urged that the testimony of PW-2/ Wasim was credible as to the manner in which the accident had occurred, while on the contrary, both R1W1/Mubin Ahmed i.e. the driver, as well as R1W2/Jamsad i.e. the conductor of the offending bus, were “interested witnesses” and the counsel also vehemently urged that their version that the deceased, all of a sudden, himself opened the front door and jumped out of the moving bus, was belied from the statement of PW-2/Wasim to the effect that there was traffic jam moving ahead due to which, the bus was barely moving.

COURTS ANALYSIS AND JUDGEMENT:

Having heard the learned counsels for the rival parties and on perusal of the record including the digitized Trial Court Record, filed by the appellant/Insurance Company assailing the conversion of the claim petition to Section 163-A of the M.V. Act the court observed that, the same is clearly not sustainable in law.the court further is of viewe that it was rightly canvassed by the learned counsel for the claimants that the jurisdiction of the court would not depend merely on moving of an application by the claimants for conversion of their claim petition from Section 166 to one under Section 163-A of the M.V. Act, and therefore, the learned Tribunal can also suo moto exercise such powers.Therefore, insofar as the preliminary objection with respect to suo moto conversion of the claim petition to Section 163-A of the M.V. Act is concerned, the same is not sustainable in law. The court also observed that In his cross-examination, although PW-2/Wasim testified that he was the first one who made a PCR 13 call about the accident and also disclosed his mobile number, however, there is no such record in the criminal investigation of the case. Further, he testified that he remained at the spot for about 15-20 minutes and left the place of occurrence before the arrival of the police. He also deposed that he went to the police station on his own. It is pertinent to mention here that PW-2 in his cross-examination, acknowledged the fact that he was following the bus and was driving it at a normal speed and the bus driver was also driving at a normal speed. PW-2/Wasim further acknowledged that the accident had taken place at about 200 to 300 metres before Burari Red Light, but he denied the fact that some construction work was going on near the flyover, due to which, there was a traffic jam. What makes his testimony untrustworthy is the fact that he testified that the deceased-boy had alighted from the door which was located in the middle of the bus, whereas, it is categorical in the testimony of both R1W1 and R1W2, who are the driver and conductor of the offending bus respectively, that the deceased alighted from the front door located near the driver’s side. The court further opined that, In face of the fact, the testimony of PW-2/Wasim is questionable as he appears to be a chance witness and was unable to show his presence at the spot. Further, the testimony of R1W1/driver, as also corroborated by R1W2/Jamsad i.e. the conductor, that the deceased opened the door and in the process of alighting, fell down when the bus was moving slowly due to traffic jam, cannot be brushed aside. The court also opined that the learned Tribunal has rightly observed that in a situation where the deceased-boy, all of a sudden, himself opened the door and attempted to alight from the offending bus, the driver of the offending bus would not be in a position to stop him as his focus was primarily on the traffic moving ahead, while the conductor was sitting in the rear portion of the bus.  In view of the foregoing discussions, the court on finding no grounds in the appeal preferred by the claimants-parents. therefore, the court  In view of the foregoing discussion hereby dismissed appeal and partly allowed the appeal filed by the appellant to the effect that the total amount of compensation is Rs. Five Lacs, which shall be payable to the claimants-parents with interest @ 7.5 % from the date of filing of the DAR till realization. Hence the appeal is disposed off accordingly.

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judgement reviewed by: Sowmya.R

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