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2005 DIGILAW 929 (PNJ)

Nikki v. Darshan Singh

2005-09-02

ASHUTOSH MOHUNTA

body2005
Judgment Ashutosh Mohunta, J. 1. The claimants have filed this appeal to challenge the award dated 6.10.1998 passed by the Motor Accident Claims Tribunal, Bathinda, vide which the claim petition filed by the claimants for grant of compensation on account of the death of Makhan Singh, who was knocked down by a truck bearing registration No. PCF-9112 at 7.15 P.M. on 11.4.1994, has been dismissed. 2. Makhan Singh, aged about 40 years was knocked down by the afore-mentioned truck which was being driven rashly and negligently by Darshan Singh, respondent No. 1 on 11.4.1994 at 7.15P.M. while he was riding a bicycle on the Phul road. Makhan Singh died at the spot. The accident was noticed by Ruldu Singh and Gurcharan Chowkidar. His widow Nikki and four minor children, namely, Buta Singh, Sukhpal Singh, Sukhwinder Singh and Amritpal Kaur, filed claim petition. Despite notice, the respondents did not put in appearance in the witness-box. Both the respondents were proceeded against ex parte. Bhag Singh owner of the truck (respondent No. 2) even refused to accept notice. Darshan Singh driver (respondent No. l) was not served despite two attempts having been made for his service. Ultimately, he was served through publication in the daily Chardi Kala. 3. Ex parte evidence of the claimants was recorded. Smt. Nikki widow examined herself as AW1 and Ruldu Singh was examined as AW2. Copy of the F.I.R. (Ex.Al) and a copy of the post-mortem report (Ex.A2) were adduced in evidence. 4. In her statement the widow Nikki deposed that her deceased husband Makhan Singh used to ply mule car and was earning about Rs. 200/- per day and used to spend Rs. 150/- per day on the family. However, the Motor Accident Claims Tribunal (for short the Tribunal) assessed the per day income of the deceased about Rs. 70/- to Rs. 80/- and the dependency of the claimants was worked out to Rs. 50/- per day or Rs. 1,500/- per month or Rs. 18,000/- per annum. By using the multiplier of 16, the Tribunal awarded the compensation to the tune of Rs. 2.88 lacs with interest at the rate of 12% per annum from the date of application till payment. The Tribunal also imposed costs of Rs. 1,000/-on the respondents to be awarded to the claimants. 5. 1,500/- per month or Rs. 18,000/- per annum. By using the multiplier of 16, the Tribunal awarded the compensation to the tune of Rs. 2.88 lacs with interest at the rate of 12% per annum from the date of application till payment. The Tribunal also imposed costs of Rs. 1,000/-on the respondents to be awarded to the claimants. 5. When the claimants filed execution application, respondent No. l Darshan Singh filed application for setting aside the ex parte award dated 10.10.1996, the Motor Accident Claims Tribunal re-recorded the evidence of the parties. As there were some discrepancies in the statements made by witness appearing on behalf of the claimants, the Tribunal dismissed the claim petition by passing the second award dated 6.10.1998, holding that the claimants had failed to prove that the accident had occurred due to rashness and negligence of respondent No. l Darshan Singh, and, thus, it was not possible to grant any relief to the claimants. It is against this award that the present appeal has been filed by the claimants. 6. It has been contended by Mr. Tribhawan Singla, learned Counsel appearing on behalf of the appellants, that the Tribunal erred in setting aside the earlier ex parte award dated 10.10.1996 merely on account of minor discrepancies which had occurred in the statements of the witnesses examined by the appellants. The counsel contends that such minor discrepancies are bound to occur as the accident had taken place on 11.4.1994 and the statements of the witnesses Amar Singh (AW1) Ruldu Singh (AW3) were recorded on 27.8.1998 and 11.9.1998, i.e., after the elapse of more than 4 years and 4 months, respectively, in the trial for the second time. It has been contended that the Tribunal altogether ignored the fact that the accident in the present case had occurred at 7.15 P.M. on 11.4.1994 and the F.I.R. was lodged very promptly at the Police Station at 8.00 P.M. The offending truck was impounded and was released on superdari later on. In the post-mortem examination report (Ex.A2) it has been written that the dead, forehead, both eyes, face, mouth, ears, nose, skull, membranes and brain were injured and crushed and it can only happen if the injuries were inflicted by some heavy vehicle. In the post-mortem examination report (Ex.A2) it has been written that the dead, forehead, both eyes, face, mouth, ears, nose, skull, membranes and brain were injured and crushed and it can only happen if the injuries were inflicted by some heavy vehicle. The counsel contended that when this much unflinching documentary evidence had been adduced on record, the minor discrepancies in the statements of the witnesses are reduced into insignificance. 7. The contentions raised by Mr. Tribhawan Singla, Advocate, have vehemently been controverted by Mr. N.S. Thind, learned Counsel appearing on behalf of the respondents. It has been contended by Mr. Thind that the evidence adduced by claimants is not worth reliable at all in view of the fact that even the first informant and the author of the F.I.R. (Ex.A1) Gurcharan Singh has not been examined. It has further been contended that names of the eye-witnesses, AW1 Amar Singh and AW3 Ruldu Singh do not find mention in the F.I.R. Such a flimsy eyewitness account adduced by the claimants does not go to prove the guilt of the respondents beyond all shadow of doubt. It has also been contended by the learned Counsel appearing on behalf of the respondents that Darshan Singh, respondent No. l, who is alleged to driving the offending vehicle, has already been acquitted by the Criminal Court. 8. After hearing the learned Counsel for the parties and on going through the evidence adduced on record, I do not find merit in the contentions raised by Mr. N.S. Thind, learned Counsel appearing on behalf of the respondents. Rather, there is force in the arguments of Mr. Tribhawan Singla, learned Counsel appearing on behalf of the appellants. The clinching evidence, which cannot be lost sight of is the promptness with which the F.I.R. (Ex.A1) has been recorded and the medical evidence in the shape of post-mortem examination report (Ex.A2) as well as the impounding of the truck from the spot and its release on superdari later on. The accident in this case had occurred at 7.15 P.M. and the F.I.R. (Ex.Al) was recorded at 8 P.M., wherein the registration number of the truck as well as the name of its driver (respondent No. 1 Darshan Singh) have clearly been mentioned. The accident in this case had occurred at 7.15 P.M. and the F.I.R. (Ex.Al) was recorded at 8 P.M., wherein the registration number of the truck as well as the name of its driver (respondent No. 1 Darshan Singh) have clearly been mentioned. This much evidence coupled with the post-mortem examination report (Ex.A2) as well the impounding of the truck from spot clearly goes to show that Makhan Singh deceased was crushed to death by the truck bearing registration No. PCF-9112 on account of rash and negligent driving by Darshan Singh, respondent No. l. The veracity of the eyewitness, namely, Ruldu Singh and Amar Singh, who were examined by the claimants, cannot be discarded merely because that there are some minor discrepancies in their statements, which are bound to occur as the accident had taken place on 11.4.1994 and their statements were recorded after an elapse of more than four years in the year 1998. The omission of their names from the F.I.R. (Ex.Al) is insignificant and cannot shake the weighty evidence in the shape of prompt lodging of the F.I.R. and the impounding of the truck from the spot as well as the post-mortem examination report (Ex.A2). The non-examination of Gurcharan Singh, who is the first informant and the author of the F.I.R. (Ex.Al) can also not shake the said clinching evidence. In view of this unshakable evidence, I do not feel any hesitation on holding that it is the truck, bearing registration No. PCF-9112, which was being driven by Darshan Singh (respondent No. l) in a rash an negligent manner at the relevant time, owing to which Makhan Singh was crushed to death at the spot. The conduct of the respondents in evading the service also strengthens the credibility of the witnesses examined by the claimants. In Bimla Devi and Ors. v. Punjab State and Ors., (2001-1)127 P.L.R. 13, it has been held by this Court that simply because the witness did not report the matter to the police is no ground to discard his statement. In Varadamma v. H. Mallppa Gowda and Ors., 1972 A.C.J. 375, it has been held by the High Court of Mysore that merely because the witness was not examined by the police or that he was not examined in the connected criminal case, it cannot be said that his evidence should not be relied upon. In the case reported as N.K.V. Bros. In the case reported as N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal and Ors. 1980 A.C.J. 435, it has been held by their Lordships of the Supreme Court that "the plea that the criminal case ended in acquittal has no bearing and was rightly rejected." In the case Sri Mahadeb Roy v. Sikha Das and Ors. 1999(1) Indian Civil Cases 776, it was held by a Division Bench of the Calcutta High Court that the wrong registration number of the bus in one of the documents placed before the Tribunal, is not a material mistake. In the case reported as Oriental Fire & General Insurance Co. Ltd., New Delhi and Ors. v. Chuni Lal and Ors., 1969 A.C.J. 237, it was held by this Court that minor discrepancies in the statements of witnesses are generally the result of different observations from different situations and are therefore immaterial. These authorities are squarely applicable to the facts appearing in the present case. 9. In view of the above, it is held that Makhan Singh had died as a result of the injuries suffered by him in the accident which had occurred owing to the rash and negligent driving of the truck bearing registration No. PCF-9112 by Darshan Singh, respondent No. l. 10. Now I deal with the question of compensation which the claimants are entitled to. It has come in the statement of Nikki widow that Makhan Singh was 40 years of age at the time of his death and he was earning Rs. 200/- per day as he was mule-cart driving. It has further been stated by her that he was contributing Rs. 150/- per day to the family. However, I am of the considered opinion a mule-cart driver might be earning about Rs. 65/- to Rs. 70/- per day or Rs. 2000/- per month or Rs. 24,000/- per annum in the year 1994. Out of this earning Makhan Singh deceased was supposed to spend one-third on personal expenses and for maintaining the mule. In this way, he might have been contributing about Rs. 1,350/- towards maintaining his family in the year 1994. Thus, the annual dependency of the family comes to Rs. 1,350/- x 12 = Rs. 16,200/-. It is the common knowledge that generally a mule-cart driver continue to do the job upto the age of 65 or 70. In this way, he might have been contributing about Rs. 1,350/- towards maintaining his family in the year 1994. Thus, the annual dependency of the family comes to Rs. 1,350/- x 12 = Rs. 16,200/-. It is the common knowledge that generally a mule-cart driver continue to do the job upto the age of 65 or 70. He was 40 years of age at the time of the accident. As per the schedule appended to the Motor Accidents Act, 1988, a multiplier of 15 is to be. applied for determining the quantum of compensation to be paid to the claimants. By multiplier Rs. 16,200/- with 15, the compensation to be paid to the family comes to Rs. 2,43,0007-. The claimants shall also be entitled to the costs of Rs. 7,000/- in addition to the amount of compensation. I also grant interest at the rate of 9% per annum on the total amount of compensation from the date of application till realization. Both the respondents shall be liable jointly or severally to pay the compensation to the claimants. The amount of compensation shall be equally divided among all the five claimants. The shares of the minors shall be deposited in fixed deposit with a scheduled bank and shall be payable to them on attaining majority along with interest that may have accrued at the relevant time. 11. Consequently, the appeal is allowed (as indicated above) and the award of the Tribunal dated 6.10.1998 is set aside.