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Madhya Pradesh High Court · body

2007 DIGILAW 1235 (MP)

JHANAK v. SANTOSH ALIAS MONU

2007-11-30

ARUN MISHRA, S.A.NAQVI

body2007
Judgment S.A.Naqvi, J. ( 1. ) The appellants have preferred the appeal under Section 173 of the Motor Vehicles Act for enhancement of compensation amount being aggrieved by the impugned award dated 29-6-02 passed by Additional Motor Accident Claims Tribunal, Multai in M.V.C. No. 78/98 whereby claim petition of the appellants have been, dismissed. ( 2. ) The facts of the case in a nutshell are that on 19-06-98, the deceased Subhash was the second driver on Mini-truck No MP-05A-9137 along with Gendroa Thakre. At about 1:30 at night, the right tyre of the mini-truck was punctured. Subhash was repairing the puncture. The respondent no.1, Santosh @ Monu by driving jeep No. MP-05F-5555 in a rash and negligent manner dashed the deceased Subhash. Subhash sustained injuries and succumbed to them. The respondent no.2, Sheikh Khalil was the owner of the mini-truck and respondent no.3, the Oriental Insurance Company Limited was the insurer on the date of accident. The deceased Subhash was earning Rs. 3000/- per month from the service of driver and Rs. 500 per month by tailoring. The appellants being the legal heirs of the deceased claimed compensation amount of Rs. 23,94,000/-. ( 3. ) The respondents by denying the pleadings of the petition pleaded that the Vehicle No. MP-05F-5555 is not involved in the accident. A false case has been crafted against the respondent. On 19-6-98, a jeep was in a marriage party of Shri Sunil Chouhan, Advocate and carried other advocates to Bhaisdahi. The owner, driver and insurer of the mini-truck are necessary party. ( 4. ) The Tribunal framed seven issues. After hearing learned counsel for both the parties, perusing evidence and material on record, the learned Tribunal held that the accident does not occurred by Jeep No. MP-05F-5555. Respondents are not responsible to pay compensation amount to the claimants. The jeep was not on the spot at the time of accident. The owner, driver and insurer of the mini- truck are not necessary parties and dismissed the claim petition, being aggrieved by the impugned award, the appellants have preferred this appeal for enhancement of compensation amount. ( 5. ) We have heard the learned counsel for both the parties, perused the impugned award, evidence and material on record. ( 6. The owner, driver and insurer of the mini- truck are not necessary parties and dismissed the claim petition, being aggrieved by the impugned award, the appellants have preferred this appeal for enhancement of compensation amount. ( 5. ) We have heard the learned counsel for both the parties, perused the impugned award, evidence and material on record. ( 6. ) The learned counsel for the appellants urged that there is sufficient evidence on record to prove including the admission of the driver of the Jeep Santosh @ Monu that accident caused by the Jeep No. MP-05F-5555 and Subhash was the driver at the time of the accident. The learned Tribunal erred in appreciating the evidence of both the parties in right perspective. The evidence of advocate Anirudh Kumar Malviya cannot be read in evidence because he was advocate of respondent no. 1 and 2 in the claim petition. The case of the appellants is corroborated by the FIR and Tribunal has erred in ordering to refund Rs..50,000/- paid towards no fault liability to the appellants. Per contra, learned counsel for respondent no.3 supported the impugned award and urged that the Tribunal has rightly dismissed the claim petition. ( 7. ) It is not in dispute that Subhash died in a vehicular accident. It is also proved by the evidence on record that at the time of accident, age of the deceased was 22 years. Appellant no.1 and 2 are the parents and appellant no.3 is the brother of the deceased. Jhanaklal is not eye-witness-. He proved documents Exhibit P-1 to Exhibit P-15 pertaining to the criminal investigation of the accident, Exhibit P-16, is the driving licence of Subhash. Jhanklal (AW-1) deposed that his son was driver, his pay was Rs. 3000/- per month beside that he used to carry tailoring business and was earning Rs. 500 per month. The owner of the mini- truck deposed that Subhash and Gendrao Thakre were driver on his mini-truck, he was paying Rs. 3000/- per month to Subhash. The evidence of Jhanaklal has not been impeached in the cross-examination in this behalf and no evidence has been adduced by the respondents to controvert the testimony of Jhanaklal. On going throgh the evidence, we are of the view that the monthly income of the deceased was Rs. 2500/-, consequently, we hold that the deceased Subhash was earning Rs. 2500/- per month. ( 8. On going throgh the evidence, we are of the view that the monthly income of the deceased was Rs. 2500/-, consequently, we hold that the deceased Subhash was earning Rs. 2500/- per month. ( 8. ) Gendrao Thakre, the first driver of the mini-truck No. MP-05A-9137 deposed that on 19-6-98, at about 1:30 in the night, Subhash was the second driver on the mini-truck. The tyre of driver side was punctured. Subhash was changing the tyre, mini-truck was stationary on the left side of the road. Gendrao Thakre went near to evacuate, he saw that jeep came in excessive speed and dashed Subhash and went ahead. Gendrao Thakre cried and ran towards jeep in the light of mini-truck and light of crusher, he saw the jeep No. MP-05F-5555. Gendrao Thakre also deposed that the driver of the jeep applied the brake of the jeep, at this juncture, he saw the number of the jeep in the light of the crusher. He deposed that this.jeep used to ply Multai and Bhaisdahi, Santosh used to drive the jeep. At the time of accident, after ten minutes, one vehicle came from the the side of Varud Road on the spot, Gendrao inquired about the jeep, the driver of the jeep told him that he saw the jeep of which light of the left side was broken. Gendrao Thakre in that vehicle brought Subhash to Multai hospital where he was treated and later on succumbed to the injuries. Nothing has come adverse in the cross-examination of Gendrao Thakre which render his evidence even doubtful, though Santosh (NAW-1) driver of the jeep No. MP-05F-5555 deposed that on 18-6-98, he went along with jeep to Bhaisdahi along with advocates who have attended the marriage of Shri Sunil Chouhan, advocate. He also deposed that his jeep was not involved in the accident and at the time of the accident he was not on the spot. Sheik Khalil (NAW-2), the owner of the jeep also deposed that no accident was caused by his jeep in the intervening night of 18-6-98 and 19-6-98. Though, he stated that he told police that the jeep was in Bhaisdahi in connection with a marriage of an advocate but he has not filed any application to any Police Officer in this respect, he has no knowledge that who went to Bhaisdahi by his jeep and jeep came back along with other persons. Though, he stated that he told police that the jeep was in Bhaisdahi in connection with a marriage of an advocate but he has not filed any application to any Police Officer in this respect, he has no knowledge that who went to Bhaisdahi by his jeep and jeep came back along with other persons. He also deposed that driver Santosh got filled fuel in Bhaisdahi and took bill but he has not given bill of fuel to the police and has not produced and proved the bill during the course of trial. He came to know about the accident when vehicle was seized, he has ample opportunity to produce fuel receipt to police. Non-production of fuel receipt are unexplained which leads to the presumption that at the time of accident jeep was not in Bhaisdahi and no fuel was filled at Bhaisdahi. Though, driver Santosh denied the factum of accident and involvement of the jeep in the accident but it is clear from his cross-examination that he has knowledge that accident occurred near crusher and Subhash died in the accident. He admitted that a case under Section 304-A was registered. In paragraph-11 of his statement, Santosh deposed that he started from Bhaisdahi in the morning and in the evening at 7:00 reached Lordkaranja and attended the marriage of advocate. He also deposed that after 15 minutes of reaching Bhaisdahi, he along with his owner went to Varud, he went from Varud to Masod, Sivangi, and Pattan. He also admitted that in between Pattan and Varud, the crusher is situated where the accident occurred. He also admitted that he was in front of the crusher in the night of 19-6-98 but he has not located any vehicle there. There was no blood stains or stones on the road. It is clear from the evidence of driver Santosh that on 19-6-98, the jeep was on the spot though, he has denied the fact that jeep was on the spot at the time of accident. On appreciating the whole evidence of Santosh in this context, only two differences appears in respect of accident and jeeps presence on the spot. It is quite natural that to save himself from criminal charge, driver Santosh has not stated correct facts regarding the accident. On appreciating the whole evidence of Santosh in this context, only two differences appears in respect of accident and jeeps presence on the spot. It is quite natural that to save himself from criminal charge, driver Santosh has not stated correct facts regarding the accident. The fact that the jeep was oh the spot on the date of accident strengthen the evidence of Gendrao Thakre (AW-2) that accident is caused by the jeep No. MP-05F-5555 which was being driven by Santosh in rash and negligent manner. The evidence of Gendrao Thakre is also corroborated by documents proved by Jhanaklal, father of the deceased. The respondents have examined Anirudh Kumar Malviya (NAW-3), who deposed that he also went in the marriage of Shri Sunil Chouhan, advocate and no accident was caused by MP-05F-5555. It is evident fact that Anirudh Kumar Malviya was the advocate of the respondent nos. 1 and 2 in this claim petition. He accepted brief of respondent nos. 1 and 2 and conducted the matter and knowing full well that he could be likely to be cited as a witness on material point i.e, non-involvement of the jeep in the accident. In R.K. Agarwal Vs. Rana Harishchandra Ranjitsingh and others AIR 1994 Bombay 117, it has been held by the Bombay High Court that if an advocate accepts brief and conducting matter knowing full well that he is likely to be cited as witness on material point, he cannot subsequently withdraw from suit and appear as a witness and evidence of such advocate as a witness cannot be read in evidence and deserves to be expunged. Consequently, the evidence of Anirudh Kumar Malviya is expunged from the records as no evidence. Sunil Singh( AW-4) and Mahadev (AW-5) also deposed that no accident was caused by the jeep but looking to the evidence of Santosh and Gendrao Thakre, evidence of these witnesses are not reliable. We are of the view that the learned Tribunal erred in rejecting the evidence lead by the petitioners and disbelieving the evidence of Gendrao Thakre, we hold that the evidence of Gendrao Thakre is wholly reliable and it is proved that on 19-6-98, the respondent no.l, Santosh @ Monu by driving MP-05F-5555 dashed the deceased Subhash and Subhash died, due to the injuries sustained in the accident hence, we set aside the finding arrived at by the Tribunal in this respect. It is not disputed that on the date of accident Sheik Khalil was the owner of the jeep and it was insured with the respondent no.3, the Oriental Insurance Company Limited hence, the respondents are jointly and severally liable to pay compensation amount to the appellants. ( 9. ) We have hold that the monthly income of the deceased was Rs. 2500/-i.e, Rs. 30,000/- per year. The appellant nos. land 2 are parents of the deceased and they were dependent on the deceased. By deducting customary l/3rd amount from the annual income of the expenditure of the deceased which amount he would have spent upon himself had he been alive, loss of dependency comes to Rs. 20,000/- per annum. At the time of accident, age of the father of deceased was 43 years and mother was 41 years/thus, multiplier of 13 is applicable. Hence, the loss of future dependency comes to Rs. 20,000/- x 13= Rs. 2,60,000/- beside that appellant nos. land 2 are also entitled to get Rs.30,000/- under customary heads of funeral expenses, loss of estate and for loss of expectancy of life. Thus, the appellant nos. 1 and 2 are entitled to get total compensation of Rs.2,90,000/-. ( 10. ) Consequently, the appeal has merit. Appeal is allowed. It is directed that appellant nos. 1 and 2 are entitled to get total compensation of Rs. 2,90,000/- from the respondents. Respondents are jointly and severally liable to pay compensation amount to appellant no. 1 and 2. The compensation amount shall carry interest @ 7% p.a. from the date of filing of the claim petition before the Tribunal till realisation. No order as to costs. Appeal allowed.