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2007 DIGILAW 809 (PAT)

Mosomat Jago Devi v. Mahabir Prasad Joshi

2007-04-20

SYED MD.MAHFOOZ ALAM

body2007
Judgment Syed Md.Mahfooz Alam, J. 1. This Miscellaneous Appeal has been preferred against the judgment dated 27th April, 2001 and award dated 17th May, 2001 passed in Claim Case No. 24 of 1994 by Sri Sudhanshu Kumar Lal, 1st Additional Motor Accident Claim Tribunal, Bhagalpur whereby he has been pleased to reject the claim application filed on behalf of the claimant. 2. The brief facts of the case are as follows: The present appellant (Most. Jago Devi) filed claim case bearing Claim Case No. 24 of 1994 claiming an amount of Rs. 2,50,000.00 towards compensation on account of death of her husband (Mohan Sah) caused in motor vehicle accident which took place on 27.2.1994 at about 10 A.M. at Mundichak. It is said that at the time of accident the deceased (Mohan Sah) had gone to Mini Market at Mundichak where a truck bearing registration No. B.R. 12-H 2252 dashed him and thereafter he received severe injury and he was removed to the hospital but within few hours he collapsed in course of treatment. For the said accident, Kotwaii RS. Case No. 109/94 was instituted against the driver of the truck bearing registration no. B.R. 12-H 2252. It is said that the deceased was Goldsmith and a good manufacturer of gold ornament. His monthly income was about Rs. 2500.00 and at that time he was aged about 60 years old. He had sound health and was expected to remain alive upto the age of 75 years which was normal longivity in his family. As a result of untimely death of the deceased, the claimant suffered heavy loss and as such, a sum of Rs. 2,50,000.00 was claimed towards compensation. It was stated in the application that the vehicle in question was insured under the New India Assurance Company Limited. 3. It appears that in the abovementioned claim case, the driver, owner and insurer of the vehicle in question appeared before the Tribunal and filed separate written statements. As per written statements filed by the owner and driver of the vehicle in question it appears that both have denied the factum of accident and involvement of the truck bearing registration No. B.R. 12-H 2252. As per written statements filed by the owner and driver of the vehicle in question it appears that both have denied the factum of accident and involvement of the truck bearing registration No. B.R. 12-H 2252. However, the owner of the vehicle has admitted that the vehicle in question was insured under the New India Assurance Company Limited and the said Assurance Company has also admitted this fact in paragraph 13 of the written statement. 4. From perusal of the judgment of the Tribunal it appears that on the basis of the pleadings of the parties, the Tribunal framed as many as five issues for consideration which are as follows: (i) Is the claim case framed maintainable? (ii) Is the story of accident correct? (iii) Did the deceased Mohan Sah die due to the rash and negligent driving of the vehicle (truck) bearing registration no. BR-12H 2252 or he met with the accident for his own fault? (iv) Is claimant entitled for compensation if so, to what amount and from whomthe owner or the Assurance Company? (v) To what other relief or reliefs the claimant is entitled for? 5. It further transpires that the Tribunal has discussed issues nos. (ii), (iii) and (iv) together and although the Tribunal has come to the finding that the deceased (Mohan Sah) had died in accident but the Tribubal held that there is no reliable evidence on record to hold that the truck bearing registration no. BR-12-H 2252 was involved in the accident and that the driver of the said truck Asha Ram Turi had caused the said accident by driving the vehicle rashly and negligently and so, the Tribunal dismissed the claim. 6. It has been submitted by the learned Advocate of the appellant that the findings of the Tribunal are erroneous and against the materials available on record. He submitted that the finding of the Tribunal that the claimant has failed to examine the charge-sheet witnesses on the point of accident and the witnesses, who were examined on behalf of the claimant, have not been shown as charge-sheeted witnesses so their testimony should not be believed, is against the settled principle of law. He submitted that the finding of the Tribunal that the claimant has failed to examine the charge-sheet witnesses on the point of accident and the witnesses, who were examined on behalf of the claimant, have not been shown as charge-sheeted witnesses so their testimony should not be believed, is against the settled principle of law. He submitted that in the claim case the non-examination of any witness who has been cited as charge-sheet witness of the criminal case lodged in connection with the accident does not adversely affect the merit of claim case and cannot be a ground to disbelieve or discard the evidence of the witnesses examined in the claim case. He further submitted that both the cases should be decided independently on the basis of the materials brought on record. In support of his argument, he has placed reliance upon the decision reported in AIR 1990 Andhra Pradesh page 162 (A.P.S.R.T. Corporation and Another, Appellants vs. Sravaji Aruna and Others, Respondents). 7. Criminal trial and the trial of cases instituted under Motor Vehicles Act stand on different footing and both the cases must be decided independently on the basis of the materials brought on record in each case. The non-examination of charge-sheet witnesses of the criminal case lodged in connection with accident does not adversely affect the claim case filed in connection with the said accident. Moreover in criminal trial strict proof of certain fact is required whereas in claim case prima facie proof is sufficient to establish certain fact. This is because of the fact that the Motor Vehicles Act is a beneficial Legislation enacted with the sole purpose of providing financial relief to the dependents or legal representatives of the victim of the accident who had lost their earning member. In this background it is worth to note that the principle of Res Ipsa Loquitor is alien to the criminal trial but in claim cases this principle is applicable to prove the rash and negligent driving of the driver of offending vehicle. It appears that while discussing the point whether truck no. In this background it is worth to note that the principle of Res Ipsa Loquitor is alien to the criminal trial but in claim cases this principle is applicable to prove the rash and negligent driving of the driver of offending vehicle. It appears that while discussing the point whether truck no. BR-12-H 2252 was involved in the accident the Tribunal wrongly applied the principle of criminal trial of proving the guilt of the accused beyond all reasonable doubt and that is why on the basis of some minor contradiction with regard to the date of accident and on the basis of non-examination of charge-sheet witness, the Tribunal held that there is no reliable evidence on record that truck number BR-12-H 2252 was involved in the accident. But it appears that the Tribunal has completely ignored this fact that for the said occurrence Kotwali P.S. Case No. 109/94 was instituted in which the Police had submitted charge-sheet against the driver of the said truck. The said charge-sheet is Ext. 4 in the claim case which shows that after investigation the Police found that the said accident was caused by the use of truck bearing registration no. BR-12-H 2252 which was being driven by Asha Ram. This fact further finds corroboration from Ext. 3, which shows that the abovementioned truck was seized by the Police in connection with Kotwali P.S.Case No. 109/94 which was instituted in connection with this accident. Not only this but the order-sheet of the Court of C.J.M., Bhagalpur dated 28.2.1994 drawn in connection with Kotwali P.S. Case No. 109/94 establishes that on the very next day of the accident i.e. on 28.2.1994 the driver of the said truck, namely, Asha Ram was arrested and produced in Court in connection with Kotwali P.S. Case no. 109/94. It is true that this order-sheet is not an exhibited document but admittedly, it is a public document and since it is on record, as such judicial notice of the public document can be legally taken. Thus, the abovementioned document fully establishes this fact that in the accident in which deceased Mohan Sah lost his life truck No. BR-12H 2252 was involved which was driven by Asha Ram. 8. It appears that the learned Judge did not properly read the abovementioned documents and had he read the depositions of A.P.W. 1, A.P.W. 3 and A.P.W. 4 alongwith Ext. 3 and Ext. 8. It appears that the learned Judge did not properly read the abovementioned documents and had he read the depositions of A.P.W. 1, A.P.W. 3 and A.P.W. 4 alongwith Ext. 3 and Ext. 4 he would have come to a definite conclusion that in the alleged accident truck No. BR-12H 2252 was involved and at the relevant time Asha Ram was driving the said truck. Since there is no counter evidence of the applicants evidence that the said accident had taken place due to the rash and negligent driving of the driver of the truck as such I am of the view that this fact also stands proved that the accident was caused due to the rash and negligent driving of the driver of the truck, namely, Asha Ram. I am therefore of the view that the Tribunal has committed illegality by holding that there is no reliable evidence on record that in the said accident Truck No. BR-12H 2252 was involved which was being driven rashly and negligently by its driver. I, therefore, set aside this finding of the Tribubal and hold that the claimant has successfully proved that the accident in which Mohan Sah, husband of the claimant, had lost his life was caused by the use of truck no. BR-12H 2252 which was being driven by Asha Ram in rash and negligent manner. 9. It appears that while disbelieving the case of the claimant the Tribunal has given much weight to the statement of the informant recorded in the fardbeyan in which date of accident has been mentioned as 26.2.1994 instead of 27.2.1994 but in my view, it is only a clerical mistake and the actual date of occurrence is 27.2.1994 which stands clarified from column no. 7 of charge-sheet (Ext. 4) which specifically mentioned that the accident had taken place on 27.2.1994. Thus, in my view, the Tribunal has again committed mistake by discarding the testimony of the claimants witnesses due to the abovesaid discrepancies in the date of accident. 10. Now when the factum of accident and the rash and negligent driving of the driver of offending vehicle is established, the next question which comes for consideration is what should be the quantum of compensation and from whom it should be realised. In the claim application and in the evidence it has come that the monthly income of the deceased was at Rs. In the claim application and in the evidence it has come that the monthly income of the deceased was at Rs. 2,500.00 but considering the age of the deceased which was 65 years at the time of accident as per post mortem report the monthly income at Rs. 2,500/-appears to be exorbitant. Generally at this age i.e. at 65 years of age, a person leads a retired life and therefore, I am of the view that the notional income of Rs. 15,000.00 per annum as shown in 2nd Schedule of the Motor Vehicles Act will be taken as annual income of deceased from which 1/3rd will be deducted towards the personal expenses of the deceased. After deducting this 1/3rd amount from notional income of the deceased the remaining amount i.e. Rs. 10,000.00 per annum will be loss of annual dependency on account of death of deceased Mohan Sah caused in motor accident and keeping in view of the age of the deceased which was assessed by the doctor at 65 the multiplier of figure "5" will be the correct multiplier and thus, the total compensation will be calculated in the following manner: Total annual dependency =Rs.10,000/-only Use Multiplier of 5 =Rs.10,000x5 = Rs. 50,000 Add Rs. 2000 towards funeral expenses Rs. 2,000 Add Rs. 5000 towards loss of consortium = Rs. 5,000 Add Rs. 2500 towards loss of estate = Rs. 2,500 Total = Rs. 59,000/- Rounded up Rs. 60,000.00 only Thus, the total compensation as calculated above which becomes payable to the claimants comes to Rs. 60.000/-. Accordingly, the total compensation payable to the claimant is fixed at Rs. 60,000/-only. 11 The admitted position is that the vehicle in question is insured under the New India Assurance Company and the policy is also on record. It is admitted that at the relevant time the policy was valid and, therefore, I am of the view that in this case the insurer of the vehicle is liable to satisfy the judgment and award. 12. In the result, this Miscellaneous Appeal is hereby allowed. The judgment and award of the Tribunal are hereby set aside and a total compensation at Rs. 60,000.00 is awarded to the claimant against the owner as well as the insurer of the vehicle with interest at the rate of 9% per annum from the date of filing of the claim application till the date of realisation. The judgment and award of the Tribunal are hereby set aside and a total compensation at Rs. 60,000.00 is awarded to the claimant against the owner as well as the insurer of the vehicle with interest at the rate of 9% per annum from the date of filing of the claim application till the date of realisation. It is further ordered that since the vehicle in question was insured under the New India Assurance Company Limited, as such the New India Assurance Company is directed to pay the entire compensation within two months from the date of this order failing which the same will be realised through the process of the court.