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2003 DIGILAW 1017 (PAT)

Girija Devi v. Kamla Kant Singh

2003-09-16

S.K.KATRIAR

body2003
Judgment 1. Heard Mr. Shailendra Kumar for the appellants, and Mr.Prasun Kumar Choudhary for respondent no.2 (the Divisional Manager, Oriental Insurance Co. Ltd., Muzaffarpur).The claimants are the appellants with respect to an application under Section 166 of the Motor Vehicles Act which has been dismissed by the impugned judgment dt. 7.9.99, passed by the learned 3rd Additional District Judge-cum-Additional Accident Claims Tribunal, Muzaffarpur, in Claim Case No.198 of 1997 (Girija Devi V/s. Kamla Kant Singh). 2. Appellant No.1 (Girija Devi) is the widow of one Madan Prasad, the deceased, and the remaining appellants are the other heirs and legal representatives of the deceased. According to the claim case, Madan Prasad was on 20.8.97 travelling from Muzaffarpur to Motihari in Tata 407 Maxi Bus BR-06P 5691, owned by Kamla Kant Singh (respondent No.1), which was insured with respondent no.2. During the course of the journey, he was thrown out of the vehicle because of rash and negligent driving as a result of which he met with serious injuries and subsequently died on 24.8.97 at about 11.45 pm. The appellants preferred the claim application which has been rejected by the impugned order on the ground that they have been unable to prove that the deceased died during course of the accident. Hence this appeal at the instance of the claimants. 3. Learned counsel for the parties have advanced elaborate submissions in support of their respective stand, and have taken me through the lower court records. 4. I have perused the materials including the original records. AW 1 (Girija Devi) is the widow of the deceased and appellant no.1 herein, and has inter alia deposed to the effect that the deceased had died in the accident and was earning a sum of Rs. 3000/- per month. AW 2 (Marachhi Devi, appellant no.2) is the mother of the deceased, and A.W.3 (Mangal Mahto, appellant no.3) is the father of the deceased, and have deposed to the same effect as the widow (AW 1). AW 4 is Man Mohan Prasad, who is brother of the widow, and has lodged the first information report. He has deposed to the effect that after the accident, the deceased was admitted in the Motihari hospital and was referred to PMCH, Patna.The informant had taken him to the PMCH where he could not be admitted because of the ongoing strike, and was admitted to the private nursing home of Dr. He has deposed to the effect that after the accident, the deceased was admitted in the Motihari hospital and was referred to PMCH, Patna.The informant had taken him to the PMCH where he could not be admitted because of the ongoing strike, and was admitted to the private nursing home of Dr. Ramesh Chandra, where he died on 24.8.97. He has further deposed to the effect that Dr. Ramesh Chandra had given two certificates (one of which was death certificate) which are on record. He has further deposed that postmortem of the dead body was avoided. AW 5 (Rup Narayan Prasad), and AW 6 (Muntun Mahto), were feliow passengers and eye-witnesses, and have deposed to the effect that the deceased fell down from the vehicle because of the rash and negligent driving of the driver. This is the whole of the oral evidence. 5. In so far as the documentary evidence is concerned, Ext.1 is the death certificate issued by Dr. Ramesh Chandra in whose clinic the deceased had died. It states the condition of the deceased at the time when he was admitted in his clinic where he had died on 24.8.97. Following is the text of the medical certificate : Death Certificate. 24.8.97 Mr. Madan Prasad 45 Yr. Male Rt. handed S/o Sri Mangal Mahto Lal Bazar, Bettiah D/A 20.8.97. D/Ope. 21.8.97. D/Death 24.8.97 11.45 p.m. Diagnosis : Server Head Injury Bilat. frontal extradival clot and Lt. frontal skin laceration. Communilid compoind fracture and frontal lobe confusion and swelling. Course in the hospital.Stormy. He was operated for the clot and the left frontal lobe contusion and sweils. He was semicomatosed, and had high fever with secretions in throat and respiratory difficulty at lung on 24.8.97 he had sudden respiratory and cardiac arrest and could not survive despite artificial respiratory and external cardiac massage. Sd/- 24.8.97 11.45 p.m. 6 Ext. 2 is the first information report lodged by the widows brother (AW 4), which states that the driver was driving the vehicle in a most rash and negligent manner. The deceased was standing on the footboard of the vehicle and the driver most abruptly applied the brakes as a result of which the deceased had fallen down from the vehicle and was seriously injured. The deceased was standing on the footboard of the vehicle and the driver most abruptly applied the brakes as a result of which the deceased had fallen down from the vehicle and was seriously injured. He was hospitalised in Motihari and was referred to PMCH, Patna, where he could not be admitted because of the ongoing strike, and was admitted to the clinic of Dr. Ramesh Chandra where he ultimately died. 7. On a perusal of the entire evidence on record, l have no manner of doubt that madan Prasad was travelling in the vehicle bearing registration no. BR-06P-5691 owned by Kamla Kant Singh (respondent no.1). The driver was driving the vehicle at a fairly high speed who suddenly applied the brakes as a result of which Madan Prasad fell down from the vehicle on the ground with heavy impact and suffered serious injuries. The injuries indicated in the death certificate (Ext.1) issued by Dr. Ramesh Chandra, giving details of the injuries sustained by the deceased, are consistent with the nature and kind of the accident alleged to have taken place. The deposition of A.W.5 and A.W.6, who were fellow passengers and eye witnesses, have fully supported the claim case. No evidence worth the name on behalf of the opposite parties is on record. I, therefore, conclude that the deceased was travelling in the aforesaid vehicle and died during the course of the journey because of rash and negligent driving. 8. This takes me on to the question of quantification of compensation. lt is manifest from the evidence of the witnesses on behalf of the applicants that the deceased was aged about 40 years at the time of his death and was engaged in small time business in his village. AW1, AW2 and AW3 have consistently deposed that he was earning a sum of Rs. 3000/- per month. The same has to be multiplied by twelve to reach the amount of annual income which comes to Rs. 36,000/- per annum, out of which one-third has to be deducted towards his personal expenses: This leaves a sum of Rs. 24.000/- per annum which would be the annual dependency. The petitioner was then in the age group of 35 years but not exceeding 40 years. Applying the multiplier of 16, the compensation amount comes to Rs.3,84,000/-. 9. 36,000/- per annum, out of which one-third has to be deducted towards his personal expenses: This leaves a sum of Rs. 24.000/- per annum which would be the annual dependency. The petitioner was then in the age group of 35 years but not exceeding 40 years. Applying the multiplier of 16, the compensation amount comes to Rs.3,84,000/-. 9. As discussed hereinabove, the deceased had to be hospitalised in Motihari and then taken to the PMCH, Patna, and thereafter to the clinic of Dr. Ramesh Chandra on 20.4.97 where he died on, 24.8.97, the accident having taken on 20.8.97. Section 171 of the Act provided that in addition to the amount of compensation, simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. The Supreme Court has in its recent judgment held that in view of the current bank rate of 9% interest per annum from the date of the application till the date of payment is adequate. The claim application was filed on 27.9.97. 10. Therefore, l further direct that the claimant shall be entitled to a sum of Rs.10,000/- by way of funeral expenses, and also be entitled to a further sum of Rs. 15,000/- by way of medical expenses. In that view of the matter, the claimant will be entitled to the total amount of compensation which comes to Rs. 4,09,000/- which will carry simple interest @ 9% per annum from the date of the claim application (27.9.97) till the date of payment after adjusting the amount, if any paid by the respondent Insurance Company. Respondent no.2 (Divisional Manager, Oriental Insurance Company Ltd., Motijheel, Muzaffarpur) is hereby directed to pay the entire decretal amount with interest till the date of payment and forward the same by means of demand draft prepared in favour of Smt. Girija Devi (appellant no.1), within a period of six weeks from today which shall be accompanied with statement of accounts. 11. In the result, this appeal is allowed. The impugned judgment dated 7.9.99 is hereby set aside, and the claim application is allowed in the aforesaid manner.