Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1272 (PAT)

Urmila Devi v. Vijay Singh, Vijay Kr. Singh

2007-08-02

REKHA KUMARI

body2007
Judgment 1. This appeal is directed against the judgment and award dated 30.9.2004 passed by the 7th Addl. District Judge cum Motor Accident Claims Tribunal, Sasaram, Rohtas, in M.V. Case No. 44/ 2001 whereby he has held that the appellant is not entitled to full compensation for the death of her son in the motor vehicle accident. 2. The appellant filed an application under Section 166 of the M.V. Act alleging therein that on 25.2.2001 her son Abinash Kumar boarded Jeep No. BR-24P/1112 at Bikramganj for going to Sasaram. Other passengers also boarded the vehicle. In spite of protest made by the passengers, the driver drove the vehicle rashly and negligently as a result of which an accident occurred causing serious injuries to the passengers and Abinash Kumar died on account of the injuries sustained by him. An F.I.R. was lodged by one Tuntun Sharma at Nokha P.S. being Nokha P.S. Case No. 23/2001 regarding the accident. The case of the appellant also is that her son was a dealer in shoes and his monthly income was Rs. 6,000/- and at the time of his death he was about 22 years of age. 3. The appellant, hence, filed the above application against the driver, owner and insurer of the jeep seeking Rs. 5 lacs as compensation. 4. The respondent contested the claim. The owner Vijay Kumar Singh and the driver in their written statement averred that the driver of the jeep was not driving the vehicle rashly or negligently. On the other hand, the truck bearing registration No. BRB 0712 coming from the other side dashed the jeep causing the accident. 5. During trial the appellant examined five witnesses. The respondent did not examine any witness. A.Ws. 1, 2, 3, 4 have stated about the occurrence. A.W.5 is a formal witness. A.Ws. 1, 2 and 4, however, were not the eye witnesses. So, the Tribunal did not put any reliance on their evidence. A.W.3 was also a passenger in the jeep. In cross-examination, he however stated that the truck had dashed the jeep. Hence, the Tribunal held that it was case of contributory negligence but the owner of the truck has not been made party and therefore, the appellant is not entitled to full compensation and as the driver of the jeep was driving the vehicle rashly and negligently, Rs. In cross-examination, he however stated that the truck had dashed the jeep. Hence, the Tribunal held that it was case of contributory negligence but the owner of the truck has not been made party and therefore, the appellant is not entitled to full compensation and as the driver of the jeep was driving the vehicle rashly and negligently, Rs. 50,000/- is awarded as compensation which award is adjustable to the amount paid under Section 140 of the M.V. Act. 6. Learned counsel for the appellant admitted that in this case, the driver of the jeep was alone negliyent and on account of his negligence the accident took place. So, though it had dashed against the truck, it is not a case of contributory negligence and so the owner of the truck was not a necessary party and the appellant is entitled to full compensation. 7. Learned counsel for the Insurance Company, on the other hand, submitted that the Tribunal was correct in holding that it was a case of contributory negligence. 8. In this case, as A.W.3 is the only eye witness to the occurrence, being a co-passenger, his evidence alone needs consideration. He in his cross-examination has stated in clear words that the driver of the jeep was driving the vehicle very rashly and negligently. He and other passengers protested but when they reached village Pariya, P.S. Nokhia, the jeep collided with a truck which was coming from the southern side as a result of which the jeep fell down in the eastern ditch and Abinash was seriously injured and he died on the way to hospital. In cross-examination he has, however, stated that the truck dashed the jeep. But for this it cannot be said that it is a case of contributory negligence. There is no evidence that the truck was being driven rashly or negligently. If the jeep driver was driving his vehicle rashly and negligently as result of which the truck collided with it, it cannot be said to be a case of contributory negligence. In the F.I.R., indeed, it is mentioned that at the time of accident a truck was coming from another side in high speed; but that is not enough to hold that the truck was being driven rashly or negligently. The F.I.R. is also not a substantive evidence. In the F.I.R., indeed, it is mentioned that at the time of accident a truck was coming from another side in high speed; but that is not enough to hold that the truck was being driven rashly or negligently. The F.I.R. is also not a substantive evidence. The driver of the jeep has also not examined himself in support of their case that the truck driver also contributed in the accident. 9. Therefore, I agree with the learned counsel for the appellant that it was not a case of contributory negligence and the jeep driver alone was rash and negligent which resulted in the accident and as the case of the appellant is that the driver of the jeep was responsible for the accident, it is not necessary for her to make the driver of the truck a party. 10. On the point of quantum of compensation, the impugned judgment shows that the Tribunal has not assessed the quantum. It has only assessed that though evidence has been adduced that the deceased was running a footware shop no paper has been filed to show that he was owner of any footware shop and the documents of the transaction do not appear to be genuine. On perusal of the evidence of A.W.1 the mother, A.W.2 the father and A.W.3 the uncle of the deceased, it appears that they have stated that the deceased was running a footware shop and had monthly income of Rs. 6,000/-. A.W.5 has also stated that the deceased had a footware shop on Arrah road named Janta Shoe Store and that he used to purchase shoes from New Market, Gauriya toli, Patna, Gold step footware, Patna and other wholesale dealers. It appears that some cash memos were proved by this witness which were actually not marked as exhibits though the Tribunal had made some reference about them and has disbelieved them. 11. Though the evidence has been led that the deceased was running a footware shop no document has been filed by the appellant to show that the deceased was owner of any footware shop. The above cash memos which have been exhibited are with the lower court record and it appears that they were filed very late on the date when A.W.5 was examined. So, it becomes doubtful that they are genuine documents. 12. The above cash memos which have been exhibited are with the lower court record and it appears that they were filed very late on the date when A.W.5 was examined. So, it becomes doubtful that they are genuine documents. 12. Therefore, it is evident that there is no negligible evidence about the income of the deceased. Under such circumstances, the notional income of Rs. 15,000/- per annum as provided in Schedule II of the Act may be taken to be the income of the deceased. 13. A.W.1 has stated that the deceased was aged about 22 years at the time of death. The Postmortem report shows that the deceased was aged 20 years. Therefore, the age of the deceased at the time of death may be taken to be 22 years. 14. Hence, when the income of the deceased was Rs. 15,000/- per annum and he was 22 years, as per Schedule II of the M.V. Act the amount of compensation would be Rs. 15,0005,000/-= Rs. 10,000 x 17 =1,70, 000/- to this may be added Rs. 2,000/- as funeral expense and Rs. 2500/- as loss of the estate. 15. Hence, the total compensation would come to Rs. 1,74,500/- and the owner of the jeep and the insurer would be liable jointly and severaly to pay the same to the appellant. 16. In the result, the appeal is allowed to that extent. The respondent National Insurance Company, who is admittedly the insurer of the jeep, is directed to pay the above amount of Rs. 1,74,500/-minus the amount if any paid under Section 140 of the Act to the appellant within two months, failing which it would be liable to pay interest @ 9% per annum from the date of this order.