Uttarakhand High CourtUnknown vs Mohan Singh Bora And Others on 21 October, 2021Author:S.K.MishraBench:S.K.MishraIN THE HIGH COURT OF UTTARAKHAND AT\n                   NAINITAL\n\n                     AO No. 79 of 2011\n\nSmt. Khahti Devi w/o Late Shri Kishan Singh Bisht\n                                          .............Appellant\n\n                            -versus-\n\nMohan Singh Bora and others\n                                              .........Respondents\n\n\n         Date of hearing and Order: 21.10.2021\n\nAdvocates appeared in the case:-\n\nFor Appellant         : Zafar Ullah Siddiquie, Advocate\n\n                            Versus\n\nFor Respondents       : Mr. M.K. Goyal, Advocate\n\n\nSri S.K.Mishra, J.1. This appeal arises out of the judgement and order\n    pronounced by the Presiding Officer, Motor Vehicle\n    Accident Claim Tribunal - Additional District Judge,\n    Haldwani, District Nainital in Motor Vehicle Accident\n    Compensation      Claim    No.     163    of   2011     dated\n    25.01.2011.2. The claim petition filed by the mother of the\n    deceased Rajendra Singh inter alia the pleadings that\n    on   29.11.2007    at    about     5:30   P.M.,   when      the\n    deceased Rajendra Singh was travelling by a three\n    wheeler bearing no. UA 08-C/8120 and proceeding\n    towards Lalkuan from Mota Haldu, in front of JalpackPage 1 of 62factory, the opposite party no. 3 was driving the\n   vehicle in rashly and negligently manner resulting in\n   collusion with another vehicle resulting instantaneous\n   death of Rejendra Singh on the spot. It is further\n   claimed by the claimant/appellant that Rajendra\n   Singh was the only earning member in his family and\n   because of his death, the claimant has suffered\n   mainly. The matter was reported before the Lalkuan\n   Police Station. The dead body of the deceased was\n   subjected to the post-mortem examination in Base\n   Hospital at Haldwani.3. A claimant claimed for a sum of Rs. 10,50,000/-\n   along with 18% interest over the same. The opposite\n   party no.1, i.e., respondent no. 1, before this Court\n   one Mohan Singh has put in his statement admitted\n   that there was an accident but pleaded that the\n   accident took place because of the collusion of an\n   unknown vehicle with the three wheeler and there\n   was no fault on the part of the driver of the three\n   wheeler. He also claimed that the vehicle involved in\n   the accident was duly covered by insurance policy\n   with the opposite party no. 2 and the driver of the\n   vehicle had a valid driving licence. Opposite party\n   no.3 also pleaded that he was driving the three\n   wheeler   carefully   but       it   was   because   of    the\n   negligence of the unknown vehicle the accident took\n   place and the deceased died.4. The opposite party no. 2 the New India Assurance\n   Company as usual has taken the plea that the onus\n   to prove that the vehicle was insured with it and thePage 2 of 73driver had a valid license is on the petitioner and\n   owner of the vehicle. It is also stated that there was\n   no prior intimation of the accident to the company.\n   Specifically, the Assurance Company has taken a\n   plea, in paragraph 4 of the written statement, that\n   the company learnt that the alleged accident took\n   place due to absolute negligence and carelessness of\n   the offending unknown vehicle. The driver of the\n   vehicle-three wheeler no. 04-C-8120 at the time of\n   the alleged accident was neither the negligence nor\n   there was any carelessness of driver of the vehicle\n   and accordingly the company could not be directed to\n   compensate the claimant's claim for the death caused\n   to her son.5. In order to establish her case, the plaintiff examined\n   four witnesses and led in the evidence several\n   exhibits including the inquest report and FIR etc. No\n   witness was examined on behalf of the opposite\n   party. No documents were also filed on behalf of the\n   opposite party except the assurance policy filed by\n   the owner.6. Learned Presiding Officer of the Tribunal held that the\n   claim-petitioner could not establish that the accident\n   took place because of the negligence of the driver of\n   the three wheeler and it was because of the\n   negligence of the driver of the unknown vehicle and\n   that from the record it revels that the FIR was lodged\n   alleging that there was head-on collusion, but the\n   evidence is forthcoming to this effect that there was\n   a collusion on the side of vehicle. Learned PresidingPage 3 of 74Officer of the Tribunal had further held that since the\n   driver of the vehicle, in which, the deceased was\n   travelling was not at fault, the claim application can\n   not be allowed.7. In other words, the learned Tribunal Judge has held\n   that there was negligence on the part of the\n   petitioner    though     it is    nobody's     case    that the\n   petitioner has committed the negligence in causing of\n   the accident. Moreover, when the opposite parties\n   admit that there was an accident, the onus is on\n   them to establish that the incident did not took place\n   due to the negligence of the opposite party no.3. It is\n   admitted by all the opposite parties, that there was\n   an accident. It is also admitted that the deceased\n   died in that accident. In that view of situationSection\n   102of the Indian Evidence Act will come into play.Section 102of the Evidence Act reads as follows:"102. On whom burden of proof lies.--The burden of proof\n      in a suit or proceeding lies on that person who would fail if no\n      evidence at all were given on either side."8. This court is of the considered opinion that this kind\n   of vague pleadings without giving the specification of\n   the alleged offending vehicle and not specifying the\n   person who is driving the vehicle, have been given\n   much weightage by the learned Presiding Officer of\n   the Accident Tribunal. So, we are of the opinion that\n   in this case, the learned Tribunal has committed an\n   error on record in holding that the occurrence took\n   place because of the negligence of third unknown\n   driver of the unknown vehicle. Hence, issue no. 1\n   decided against the petitioner is hereby set-aside andPage 4 of 75it   is   held   that   the    petitioner     has    successfully\n   established that the occurrence took place because of\n   the accident caused due to the carelessness and\n   negligence action of the driver of the vehicle No. UA\n   04 C 8120.9. The Tribunal has held that the vehicle was having\n   appropriate fitness certificate and registration as also\n   the driver of that three wheeler was having a valid\n   driving    licence.     Such       findings   have    not     been\n   challenged by any of the parties.10. As far as, issue no. 3 is concerned the learned\n   Tribunal is held that the claimant is not entitled to\n   any compensation but we are of the opinion that\n   since     the    accident     took    place   because    of    the\n   negligence of the opposite party no. 3 and the driver\n   had a valid driving licence the petitioner is entitled to\n   compensation.11. In this case, no evidence has been led regarding the\n   income of the deceased at the time of accident so by\n   referring to the different documents we are of the\n   considered opinion that the minimum wage of Rs.\n   80/- per day for unskilled labour to be taken into\n   consideration for calculation of the compensation.\n   Hence, his income is considered to be Rs. 2400/- per\n   month. As he was unmarried, 50% of the same is\n   deducted from the said amount. So, the monthly\n   contribution of the deceased to his household is held\n   to be Rs. 1200/- which leads to the conclusion that\n   the annual contribution or annual loss of income for\n   the family is Rs. 14,400/-. The petitioner was 30Page 5 of 76years old and as per the rulings of the Hon'ble\n   Supreme Court inSarla Verma (Smt.) & others\n   vs. Delhi Transport Corporation & another; 2009\n   (3) R.C.R. (Civil) 77, the multiplier of 17% should\n   be taken into consideration in this case. The resultant\n   compensation is Rs. 2,44,800/-. The claimant is also\n   entitled to Rs. 5,000/- for loss of the estate and Rs.\n   10,000/- is the loss for consortium. Rs. 5,000/-\n   should be awarded for the funeral expenses. Adding\n   all these sums of Rs. 2,64,200/- which is around up\n   to Rs. 2,65,000/-.12. Hence, the appeal is allowed. The judgment and\n   order passed by the learned Presiding Officer of the\n   Tribunal are hereby set-aside. The claim application\n   filed by the applicant is allowed. The opposite party\n   no. 2 is directed to indemnify a claimant by a sum of\n   Rs. 2,65,000/- along with the interest @ 6% per\n   annum from the date of filing of the claim application.\n   The opposite party shall pay the amount within 2\n   months from today failing which the amount awarded\n   shall carry an interest @ 8% per annum from 21st\n   December, 2021 till the payment is made.13. In case of payment of the amount, a sum of Rs.\n   2,00,000/- shall be kept in a fixed deposit in the\n   name of claimant in a nationalised bank for a period\n   of 3 (three) years and Rs. 65,000/- along with the\n   accrued interest shall be released in her favour.14. There shall be no order as to costs.Page 6 of 7715. Urgent certified copy of this order be granted on\n      proper application.(S.K.Mishra)\n                                         Judge\n\n\n\nKKSPage 7 of 7