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2007 DIGILAW 891 (PAT)

Shakuntala Devi v. Ranjan Pd. Sinha

2007-05-04

SYED MD.MAHFOOZ ALAM

body2007
Judgment Syed Md.Mahfooz Alam, J. 1. This Miscellaneous Appeal has been preferred by the claimants-appellants against the judgment dated 15.2.1999 and award dated 2.6.1999 passed in M.V.A.C.T. Case No. 42 of 1993 by 1st Additional District Judge-cum-Motor Vehicle Accident Claim Tribunal, Nalanda at Biharsharif (hereinafter referred to as the "Tribunal") whereby he has been pleased to dismiss the claim application of the appellants for grant of compensation on account of the death of deceased Ram Keshar Prasad caused in motor vehicle accident. 2. The case of the claimants, who claim themselves as heirs and legal representatives of the deceased Ram Keshar Prasad, in brief, is that on 13.2.1993 deceased Ram Keshar Prasad along A.W. 2 Mahesh Prasad was carrying foodgrains on a tractor bearing registration no. BR 21-4197 which was attached with a Trailer bearing BR 21-4198. He was carrying foodgrains from a place known as Baghi and the destination was Prahladpur. The deceased, Ram Keshar Prasad and Mahesh Prasad both were sitting on the mud-guard of the tractor. As the driver of the tractor, namely, Yadubir Singh was driving the said tractor very rashly and negligently, so the said tractor tilted as a result of which the trailer turned turtle and in the process, the deceased fell down from the tractor and the bags of foodgrains kept on the trailer fell upon the deceased. The deceased sustained grievous injuries and died. This accident occurred at a place known as Chhoti Misiya near Sarmera. After the accident, a case was lodged on the statement of A.W. 2 Mahesh Prasad bearing Sarmera P.S.Case No. 10 of 1993 under Sections 279 and 304A of the Indian Penal Code against the driver of the tractor. It is said that at the time of accident, the deceased was aged about 48 years old and was employed as Extra Departmental Branch Postmaster at Prahladpur. His monthly income was at Rs. 793/-. It is further said that the tractor and trailer were insured under the National Insurance Company. The claimants have claimed a total compensation of Rs. 7,80,861.50 paise. 3. The owner, the driver and the insurer-National Insurance Company appeared before the Tribunal and contested the case by filing objection petitions and by adducing oral evidence. 4. 793/-. It is further said that the tractor and trailer were insured under the National Insurance Company. The claimants have claimed a total compensation of Rs. 7,80,861.50 paise. 3. The owner, the driver and the insurer-National Insurance Company appeared before the Tribunal and contested the case by filing objection petitions and by adducing oral evidence. 4. According to the case of the owner as well as the driver, it is not correct to say that the deceased alongwith A.W. 2 Mahesh Prasad had boarded the said tractor at village Baghi rather the fact is that both the persons had met him at Sarmera and requested him to take them to Prahladpur by his tractor on the pretext that from that place no conveyance was available to them. Further case is that the driver refused to oblige them but they climbed upon the trailer from behind without the knowledge of the driver. However, it has been admitted by the driver and the owner that the driver of the tractor was carrying foodgrains from the said tractor which were loaded by A.W. 2 Mahesh Prasad and deceased Ram Keshar Prasad. Further case of the driver and the owner is that the accident was not the result of the rash and negligent driving of the driver of the vehicle but due to bad condition of the road, the accident took place and as such, they are not liable to pay compensation to the claimants. The National Insurance Company in its written statement has pleaded that the driver and the owner of the tractor has violated the terms and conditions of the policy as such the Company is not liable to pay compensation. 5. From perusal of the judgment of the Tribunal it appears that as many as five issues were framed by the Tribunal for decision. The issues framed by the Tribunal are as follows: (i) Is the claim petition as framed maintainable? (ii) Have the claimants got cause of action? (iii) Is the claim barred by limitation, waiver, acquiescence and estoppel? (iv) Has the deceased died in an accident caused by a vehicle in question being driven rashly and negligently by OP. No. 2? (v) To what relief or reliefs, if any, the claimants are entitled to? 6. From perusal of the judgment of the Tribunal it appears that the Tribunal decided issue nos. (iv) Has the deceased died in an accident caused by a vehicle in question being driven rashly and negligently by OP. No. 2? (v) To what relief or reliefs, if any, the claimants are entitled to? 6. From perusal of the judgment of the Tribunal it appears that the Tribunal decided issue nos. (ii) and (iii) in favour of the claimants but it decided issue no. (iv) against the claimants and on that basis, the Tribunal decided issue nos. (ii) and (v) also against the claimants and finally dismissed the claim application. 7. It has been submitted by the learned Advocate of the appellants that while deciding the issue no. (iv) against the appellants the Tribunal has wrongly held that the driver was not driving the tractor in question rashly and negligently and that the accident did not take place due to rash and negligent driving of the tractor. He has further submitted that the Tribunal has also failed to correctly appreciate the maxim "Res Ipsa Loquitor" which principle was usually applied by the Tribunal when direct evidence on the point of rash and negligent driving of the driver is not available. He further submitted that the evidence of A.W. 2 Mahesh Prasad who was admittedly, accompanying the deceased at the time of accident and who was the most competent witness on the point of manner of accident was wrongly disbelieved by the Tribunal. 8. It appears that there is no denial of this fact either in the deposition of O.P.W. 1 Yadubir Singh or in the deposition of O.P.W. 2 Ranjan Prasad Sinha (owner of the vehicle) that on 13.2.1993 the said tractor and trailer were not carrying foodgrains belonging to the deceased Ram Keshar Prasad. It is also admitted that the foodgrains were loaded on the said tractor and trailer at village Baghi to be carried away to village Prahladpur. It is also admitted that at the time of accident, deceased Ram Keshar Prasad and A.W. 2 were travelling by the said tractor. It is also admitted that the foodgrains were loaded on the said tractor and trailer at village Baghi to be carried away to village Prahladpur. It is also admitted that at the time of accident, deceased Ram Keshar Prasad and A.W. 2 were travelling by the said tractor. It is also admitted that when the said tractor reached at a place known as "Chhoti Misiya" near village Sarmera, the tractor and trailer turned turtle and deceased Ram Keshar Prasad fell down from thetractor and thereafter the bags of foodgrains loaded on the trailer also fell down as a result of which said Ram Keshar Prasad came beneath the bags of the foodgrains and sustained, serious injuries and on way to the hospital he died. However, difference starts from the point that according to the claimants, deceased Ram Keshar Prasad and A.W. 2 Mahesh Prasad had boarded on the said tractor at starting point i.e. at village Baghi with permission of the driver but according to O.P.W. 1 Yadubir Singh (the driver of the tractor) and O.P.W. 2 Ranjan Prasad Sinha (the owner of the tractor), the deceased alongwith A.W. 2 had boarded on the trailer of the tractor near Sarmera Chowk without the knowledge and permission of the driver. Another point of difference is that according to the case of the claimants, the said accident had taken place due to rash and negligent driving of the driver of the tractor but according to the driver O.P.W. 1, the accident had occurred due to the presence of hole on the road and also due to bad condition of the road. 9. It appears that the Tribunal believed the version of the driver (O.P.W. 1) that the deceased, and A.W. 2 Mahesh Prasad had boarded the trailer of the said tractor near Sarmera Chowk without the knowledge of the driver. The Tribunal also believed that the accident was not caused due to rash and negligent driving of the driver (O.P.W. 1) because he was driving the tractor in slow speed. This finding of the Tribunal has been vehemently assailed by the learned Advocate of the appellants. I am also of the view that both the findings of the Tribunal are erroneous in view of the direct evidence of A.W. 2 available on record and in view of the other circumstances which are also on record. This finding of the Tribunal has been vehemently assailed by the learned Advocate of the appellants. I am also of the view that both the findings of the Tribunal are erroneous in view of the direct evidence of A.W. 2 available on record and in view of the other circumstances which are also on record. It is admitted fact that the foodgrains were being carried from village Baghi and the same were loaded on the trailer of the tractor by deceased Ram Keshar Prasad and A.W. 2 Mahesh Prasad, as such, the probability is that both the persons might have boarded the said tractor at village Baghi with the permission of the driver and the story made out by O.P.W. 1 (driver) that at Sarmera Chowk they had tried to take lift on the said tractor but he refused to give them lift and then both the persons stealthily boarded on the trailer attached with the tractor without the knowledge of the driver is an absurd and unbelievable story. Since it is admitted fact that at the time of accident A.W. 2 was also present on the said tractor alongwith the deceased and he has categorically deposed that he and his father-in-law Ram Keshar Prasad had boarded the said tractor at village Baghi for carrying the foodgrains from village Baghi to Prahladpur, there appears no reasonable ground to disbelieve his evidence. The circumstances also indicate that when the said tractor was carrying foodgrains belonging to the deceased Ram Keshar Prasad from village Baghi, as such presumption will be that the deceased might have boarded the said tractor at village Baghi. I, therefore, hold that the Tribunal has wrongly arrived at the finding that the deceased and A.W. 2 had boarded the said tractor at village Sarmera without the knowledge of the driver and so, I set aside the said finding. 10. As regards the rash and negligent driving of the driver of the tractor, it appears that the Tribunal has again committed mistake by holding that the driver of the said tractor was not driving the tractor in rash and negligent manner rather the accident took place due to bad condition of the road and due to presence of hole on the road. It is admitted fact that the roads in Bihar are not in good condition but it is the duty of the driver to remain vigilant and keep its entire attention on the road so that no untoward incident may happen due to his negligence. It appears that O.P.W. 1 Yadubir Singh (driver of the tractor) had admitted at paragraph 2 of his deposition that when he reached one and half kilometer away from village Sarmera the tractor tilted due to the presence of ditch on the road as a result of which the bags of foodgrains fell down and Ram Keshar Prasad came under the bags of foodgrains. This admission of O.P.W. 1 who happens to be driver of the offending tractor, establishes beyond doubt that at the time of the driving of the tractor he was not cautious and alert. In other words, he was driving the vehicle rashly and negligently as a result of which he could not be able to avoid the ditch which came in the way of the tractor. Thus, this admission of O.P.W. 1 alone establishes this fact that at the time of accident the driver of the tractor was driving the vehicle very rashly and negligently as a result of which he could not be able to avoid the ditch which came in front of the vehicle during drive. Under such circumstances, I hold that the finding of the Tribunal that the accident did not take place due to rash and negligent driving of the driver is erroneous and as such, the same is also set aside and it is held that the accident had taken place due to rash and negligent driving of the driver of the tractor, namely, Yadubir Singh. Since it has been established that the accident in which the deceased Ram Keshar Prasad had lost his life, had taken place due to rash and negligent driving of the driver of the tractor in question, as such the next point to be decided is that what should be quantum of compensation and from whom it should be realised. 11. According to the case of the claimants, the deceased Ram Keshar Prasad was employed as Extra Departmental Branch Postmaster at village Prahladpur and his salary was Rs. 793/- per month and at the time of accident he was aged about 48 years. 11. According to the case of the claimants, the deceased Ram Keshar Prasad was employed as Extra Departmental Branch Postmaster at village Prahladpur and his salary was Rs. 793/- per month and at the time of accident he was aged about 48 years. In support ot this case there is sufficient oral as well as documentary evidence on record and, therefore, I feel no difficulty in holding that at the time of accident the monthly income of the deceased was at Rs. 793/- per month. If the sum of Rs. 793/- is multiplied by figure "12", the annual income of the deceased will come to Rs. 9,516/-. In order to decide the loss of annual dependency, 1/3rd amount will be deducted from the annual income of the deceased towards his personal expenses. After deducting 1/3rd amount, the remaining amount i.e. Rs. 6,344/- will be the loss of annual dependency on account of the death of Ram Keshar Prasad to his family. Admittedly, the deceased was aged about 48 years old at the time of accident, as such the multiplier of "13" is the best suitable multiplier as per 2nd Schedule attached with the Motor Vehicles Act. Thus, the total loss of dependency will be calculated in the following manner: Annual loss of dependency i.e. Rs. 6,344 x 13=Rs. 82,472/- Thus, the total loss of dependency comes to Rs. 82,472.. As per rule, the claimants will be entitled to get Rs. 2000/- towards funeral expenses, Rs. 5000/- for loss of consortium and Rs. 2500/- for loss of estate. Thus, if the abovementioned amount is also added, then the total amount will come to Rs. 91,972/- and if rounded up, it will come to Rs. 92,000/-. This amount of Rs. 92,000/- will be total compensation payable to the claimants in this case. It is admitted position that the tractor in question was insured at the time of accident under the National Insurance Company, as such I do not feel any difficulty in holding that the Insurance Company is liable.to pay the compensation. 12. In the result, this Miscellaneous Appeal is hereby allowed and the judgment and award of the Tribunal are set aside and it is held that the claimants are entitled to receive compensation at Rs. 92,000/- with interest at the rate of 9% per annum from the date of filing of the claim application till the date of payment. 12. In the result, this Miscellaneous Appeal is hereby allowed and the judgment and award of the Tribunal are set aside and it is held that the claimants are entitled to receive compensation at Rs. 92,000/- with interest at the rate of 9% per annum from the date of filing of the claim application till the date of payment. It is further ordered that the National Insurance Company shall pay the entire compensation with interest at the rate of 9% per annum from the date of filing of the claim application till the date of payment within two months from the date of receipt of this order failing which the amount will be realised through the process of the court. It is further ordered that if the Insurance Company is of the view that either the owner or the driver has violated the terms and conditions of the policy then in that case the Insurance Company may take necessary steps before the Executing Court for recovery of the said amount from the owner of the tractor. It is further ordered that if any payment has been made to the claimants by way of interim order etc. then the said amount will be deducted from the total compensation.