BILASA NAIK v. RADHASHYAM MOHANTY — 1991 DIGILAW 48 (ORI)

D. M. PATNAIK, J. ( 1 ) THIS appeal is directed against the order passed by Hon'ble Dr. Justice B. N. Misra who at the admission stage dismissed an appeal filed under Section 110-D of the Motor Vehicles Act. The claimants are the appellants and the learned Second Motor Accidents Claims Tribunal having dismissed their claim and on appeal, the learned single Judge having dismissed the same, they have approached this Court invoking the jurisdiction under letters patent. ( 2 ) APPELLANT No. 1 is the daughter-in-law and appellant No. 2 is the son of deceased Radhu Bewa who died in a motor accident. It was claimed in the petition for compensation that the deceased was the widow of late Madhu Naik. She was aged 40 years. She was carrying on a small business in purchase and sale of rice and having a monthly income of Rs. 300/ -. The accident took place on 17-9-1976 at about 10 a. m. on the National High Way near Barabati Post Office under Dharmsala Police Station. It is claimed that at the time of occurrence the old lady was proceeding towards the Barabati Post Office on the extreme left flank of the road. At that time the truck bearing registration No. ORU 668 of respondent Radhashyam Mohanty came from Cuttack side being driven at a high speed and in a rash and negligent manner without blowing horn and dashed against the deceased. As a result, the latter was thrown on the ground with multiple injuries on her person including fracture of the head and died at the spot. A report was lodged with the Dharmasala Police Station and P. S. Case No. 120/76 (subsequently numbered as G. R. Case No. 756/76) was registered. The appellants claimed Rs. 25,000/- as compensation. Since the vehicle was found to have been insured with the Oriental Fire and General Insurance Company Limited, the said company was also made party along with the owner of the truck. ( 3 ) BOTH the respondents, the owner and the insurer, filed separate written statements. The owner while claimed the ownership of the vehicle in question denied the allegation of any accident whatsoever on 17-9-1976. He also denied the death of said Radhu Bewa on account of the accident and other material facts pleaded in the petition and the relationship of the appellants with deceased Radhu. The owner while claimed the ownership of the vehicle in question denied the allegation of any accident whatsoever on 17-9-1976. He also denied the death of said Radhu Bewa on account of the accident and other material facts pleaded in the petition and the relationship of the appellants with deceased Radhu. He claimed that at the relevant time the driver who had a valid driving licence was driving the vehicle at a normal speed and with due care and caution. But the lady, who was aged about 60 years, suddenly tried to cross the road and dashed against the rear wheels of the truck and thus contributed to the accident. Therefore, the driver was not driving either rashly or negligently. The respondent-owner threw the entire liability on the insurance company since, according to him the vehicle was insured at the time of accident with the company. The insurance company, on the other hand, denied all the allegations of the appellants including the income of the lady, the manner in which the accident took place and all other material facts pleaded in the petition. In para 8 of the written statement the company took the plea that it was unable to trace out from its office the particulars with regard to the policy in respect of the vehicle and, therefore, called upon the owner to produce all particulars relating to the policy and claimed that unless the owner produced the particulars, adverse inference should be drawn against him. ( 4 ) THE Tribunal framed the following issues:-"1. Is the case maintainable? 2. Whether the death of the deceased Radhu Bewa was due to the rash and negligent driving by the driver of O. R. U. 688 (sic) ORU 668? 3. Whether the insurance company is liable to pay the compensation, as claimed? 4. Is the claim excessive and arbitrary? 5. To what relief, if any, the petitioners are entitled?" ( 5 ) THE appellants in support of their claim examined 3 witnesses and the respondent-owner examined himself alone in support of his case. The tribunal came to a finding that the monthly income of Rs. 300/- of the deceased in paddy business was not proved. He has also given a finding that there was no evidence that after the death of the deceased the appellants were maintaining a servant on payment of Rs. 100/- per month. The tribunal came to a finding that the monthly income of Rs. 300/- of the deceased in paddy business was not proved. He has also given a finding that there was no evidence that after the death of the deceased the appellants were maintaining a servant on payment of Rs. 100/- per month. According to the Tribunal, P. W. 2 admittedly was at Calcutta and did not depend on the income of the deceased. But the tribunal held that the deceased was helping in household affairs and, therefore, the services rendered by her in terms of money could be assessed at the rate of Rs. 100/per month, and accordingly he held that the appellants lost this amount. Therefore, the Tribunal observed that the deceased, in the facts and circumstances of the case, had she lived, would have rendered this service at least for a period of ten years and so the total loss was calculated at Rs. 12,000/ -. After arriving at this conclusion, the tribunal deducted 1/6th on account of the lump rum benefit and for uncertainties fixed the compensation for Rs. 10,000/ -. ( 6 ) WE have nothing to disagree with the finding of the tribunal so far this aspect of the case is concerned. He has given a reasonable approach to the calculation of the compensation. The learned counsel appearing for the appellants, however, submitted that the amount so awarded has been grossly inadequate. But we are not inclined to interfere with this finding. ( 7 ) THE learned tribunal, however, dismissed the claim of the claimants on a finding that the claimants have failed to establish that they are the legal representatives of the deceased and it is this conclusion of the tribunal which is essentially assailed before this Court. On a bare perusal of the order of the tribunal it transpires that the main reason for coming to the conclusion that the claimants are not the legal representatives of the deceased is the discrepancy with regard to the age of the deceased at the time of accident. The tribunal found in the claim petition, the age of the deceased to have been mentioned as 40 years at the time of death. P. W. 3, the daughter-in-law of the deceased in her evidence stated that the lady was aged 50 years at the time of her death. The tribunal found in the claim petition, the age of the deceased to have been mentioned as 40 years at the time of death. P. W. 3, the daughter-in-law of the deceased in her evidence stated that the lady was aged 50 years at the time of her death. The age of the son, according to the tribunal, described in the claim petition is 32 years. Therefore, according to the tribunal, the deceased could not have given birth to her only son (appellant No. 2) when she was 12 year's of age. Merely on the basis of this inconsistency in the age, the tribunal came to a finding that the appellants were not the legal representatives of the deceased. In our considered opinion the aforesaid conclusion cannot be sustained in law particularly in view of his own finding with regard to the age of the deceased at the time of death. While calculating the quantum of compensation, the tribunal himself has held that the loss of service of the deceased would be for ten years. Thus, obviously he accepted the normal span of life in India as 70 years. While, therefore, determining the quantum of compensation, the tribunal himself having accepted the age of the deceased to be sixty years, he should not have relied upon the testimony of the daughter-in-law (P. W. 3) to the effect that the victim lady was 50 years at the time of death and relying upon the same should not have negatived the claim of the claimants on a finding that they are not the legal representatives. Even the owner of the vehicle in his written statement stated that the victim lady was aged about 60 years at the time of her death. ( 8 ) THAT apart, the mere alleged discrepancy in the age of the victim in the absence of any positive evidence or any material on record cannot be the basis for the conclusion that the appellants were not related as daughter-in-law and son respectively to the deceased. The tribunal having arrived at the conclusion and calculated the compensation on the basis of loss of service of the deceased for ten years should have allowed the petition. Further, the respondent-owner in para 5 of the written statement mentioned the age of the lady as 60 years. The tribunal having arrived at the conclusion and calculated the compensation on the basis of loss of service of the deceased for ten years should have allowed the petition. Further, the respondent-owner in para 5 of the written statement mentioned the age of the lady as 60 years. P. W. 1, a witness for the appellants happens to be a resident of village Durgapur, the same village as that of the appellants. In the cross-examination, the respondent-owner suggested the age of the deceased as 65 years at the time of death. Nothing prevented the tribunal, on the basis of these materials, to come to a finding that the deceased was either 60 or 65 years of age which in fact he found. The respondent-insurance company in the written statement did not specifically mention the age of the deceased, but in para 6 of the written statement merely denied the age given in the petition. We do not find any reason as to why the assertion of the respondent-owner in the written statement indicating the age of the deceased at the time of death to be 60 years should not be accepted and if the same is accepted then there is no improbability of her begetting a child when she was 22 year old. In the premises, as aforesaid, disagreeing with the learned tribunal we hold that the appellants were the legal representatives of the deceased and were, therefore, entitled to the compensation as found by the tribunal. The finding of the tribunal that the insurance company is liable to pay the amount was not challenged before us and, therefore, need not be disturbed. To add to it, there is no specific denial on the part of the insurance company that the vehicle did not carry an insurance policy with it. ( 9 ) IN the net result, therefore, we uphold the quantum of compensation arrived at by the Accidents Claims tribunal and further hold that the claimants-appellants who are the legal representatives of the deceased are entitled to receive the same and it is the insurance company (respondent No. 2) which is liable to pay the same. The quantum of Rs. 10,000/- determined as compensation would also carry interest at the rate of six per cent, per annum from the date of the application till the same is paid to the claimants-appellants. The quantum of Rs. 10,000/- determined as compensation would also carry interest at the rate of six per cent, per annum from the date of the application till the same is paid to the claimants-appellants. The order of the learned single Judge dismissing the appeal at the admission stage is set aside and this appeal is allowed with costs. ( 10 ) G. B. PATNAIK, J. :- I agree. Appeal allowed.