MANJULA DEVI MISHRA Vs. COMMERCIAL MOTORS KANPUR

JUDGEMENT

(1.) This appeal has been filed by the widow, son and mother of the deceased Awadhesh Kumar Mishra claiming compensation Rs. 11,40,000/- for the death of Awadhesh Kumar Mishra in an accident that took place on 23-1 -1994whileAwadhesh Kumar Mishra driver along with his co-driver and the cleaner was proceeding on truck No. UP 78B/0449 on 23-1-1994 at about 12.30 P.M. from Falehpur to Kanpur via G. T. Road. The deceased Awadhesh Kumjar Mishra was driving the truck. As soon as the truck reached in front of Chauhan hotel situated at G.T. Road, some mischievous and unruly boys who were standing by the side of the hotel gave signal to stop the truck. The deceased driver declined to stop the truck which infuriated the aforesaid boys and they started pelting brick-bats at the vehicle. The brick-bats hit Awadhesh Kumar Mishra over his eyes, as a result of which the vehicle was dis-balanced and fell into a ditch and dashed against a Babool tree lying on the side of the road. Consequently Awadhesh Kumar Mishra, driver and co-driver Dharmendra both died on the spot instantaneously. These deaths were attributed to the injuries sustained by the deceased in the aforesaid accident which occurred on account of mischievous and unruly felonious act of the aforesaid boys who pelted the brick-bats. The report of the incident was lodged at police station Kalyanpur, district Fatehpur. The post mortem report on the body of the deceased was conducted. At the time of the accident the driver Awadhesh Kumar Mishra was found aged about 25 years and he left behind wife Manjula Devi, his son Ankur aged about 3 years. Kamla Devi, mother of the deceased. A claim petition was filed by the claimants on 1-4-1994 wherein monthly income of the deceased Awadhesh Kumar Mishra was claimed to be 3000/-. The claimants were dependents of the deceased and total compensation to tune of Rs. 11,40,000/- was claimed by them.

(2.) The claim petition was contested by the owner as well as the insurer of the vehicle on the ground that accident was not attributable to any negligent act of the driver of the vehicle and it was alleged that the deceased was involved in the accident which was result of his own individual act and such type of claim was not covered by the insurance policy. The claim was excessive, the claim was bad for non-joinder of necessary parties. The claim petition was also contested by the insurance company on the ground that the claim does not fall within the ambit of Motor Vehicles Act, the truck was driven by the deceased Awadhesh Kumar Mishra himself and the accident occurred when the deceased himself lost balance and the vehicle fell into the ditch. There was no negligence on the part of the owner of the vehicle and the insurance company could not be saddled with any liability to pay the compensation. The tribunal has no jurisdiction to entertain the claim petition and the claimants were not the dependents of the deceased nor the deceased driver was having a valid driving licence.

(3.) The Motor Accident Claims Tribunal held by judgment and award dated 1-5-1997 that the Tribunal has jurisdiction to decide the claim petition and it affirmed the findings recorded by order dated 4-4-1995 that the issue as to whether the claim petition was cognizable under the Motor Vehicles Act or Workmen's Compensation Act holding that this claim petition could be decided by the Motor Accident Claims Tribunal. The tribunal while deciding the issue as to whether accident occurred on 23-1-1994 due to the composite negligence of some outside agency and driver of truck No. UP78-B/0449 resulting in the death of the driver and whether the deceased was having a valid driving licence at the time of the accident, held on the appreciation of the statement of PW-1 Smt. Manju Devi that the vehicle was insured and at the time of the accident the deceased Awadhesh Kumar Mishra was driving the truck, having a valid driving license but accident in question is attributable to some outside agency, which was solely responsible for accident. He placed reliance on a Full Bench decision of this court in Union of India v. Sushila Devi and others, 1990 MACT 1 : AIR 1990 Allahabad 82 : 1990 All LJ 190 (FB) wherein the Full Bench of this Court has held that where the accident could be attributable to wholly outside agency and it was not caused by negligent driving of the offending motor vehicle, in that eventuality Motor Accident Claim Tribunal has no jurisdiction to award any compensation therefor.