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2008 DIGILAW 183 (CHH)

ANNAMMA PHILIP v. PUSAU RAM SAHU

2008-07-22

RAJEEV GUPTA, S.K.SINHA

body2008
JUDGMENT Sunil Kumar Sinha, J. :- 1. The claimants, unfortunate widow and sons of the deceased K.C. Philip, have filed this appeal u/s 173 of the Motor Vehicles Act, 1988 against the award dated 03.2.1999 passed by the Motor Accident Claims Tribunal, Raipur in Claim Case No.89/1997, as the Claims Tribunal has dismissed their claim petition filed u/s 166 of the said Act for payment of amount of compensation on account of death of K.C. Philip. 2. The brief facts are that on 02.7.1997 K.C. Philip was going on his Luna bearing Regn.No.M.P.23-A/3443. When he reached near Vivekanand Ashram of township of Raipur, a Truck bearing Regn. No. C.P.S.9091 carne from opposite side and dashed the Luna of Mr. Philip, who sustained many serious injuries and ultimately succumbed to those injuries. The claimants pleaded that KC. Philip was working as Manager in Medical College branch of Indian Coffee House and was earning Rs.7045/- per month along with some bonus. They computed the amount in their own way and claimed for payment of compensation to the tune of Rs.18 lakhs. 3. The owner and the driver of the vehicle did not contest the claim. However, the Insurance Company filed its written statement denying the contentions of the claimants and pleaded that the accident occurred on account of negligence of the deceased himself. Alternatively it also pleaded vide Para 9 of the written statement that K.C. Philip was equally responsible for negligence to the extent of 50% in the said accident. Therefore, if the claimants are held to be entitled to receive the amount of compensation, only half of the quantum of compensation would be payable by the Insurer. 4. The learned Claims Tribunal framed various issues in this case and after recording evidence of the parties, dismissed the claim petition holding that the claimants could not establish that the accident occurred on account of rash and negligent driving of the offending truck by its driver. 5. Learned counsel for the appellants/claimants argued that the finding recorded by the Claims Tribunal is perverse. It is established by the evidence of A.W. 3, Tundi Paramwil Thomas John that the accident occurred on account of rash and negligent driving of the offending Truck by its driver. 5. Learned counsel for the appellants/claimants argued that the finding recorded by the Claims Tribunal is perverse. It is established by the evidence of A.W. 3, Tundi Paramwil Thomas John that the accident occurred on account of rash and negligent driving of the offending Truck by its driver. He also argued that the Claims Tribunal has held that the deceased was earning Rs.7045/- per month, therefore, the appellants/claimants be awarded the amount of compensation by calculating the same on the basis of the proved income of the deceased. 6. On the other hand, learned counsel for the Insurance Company opposed these arguments and supported the award passed by the Claims Tribunal. 7. We have heard learned counsel for the parties at length and have also perused the records of the Claims Tribunal. 8. Tundi Paramwil Thomas John (A. W.3) claimed himself to be the eye witness of the incident. He has deposed vide para 2 of his evidence that on the fateful day, the deceased was going towards Raipur while driving his Luna and he was going behind him on his Scooter maintaining some distance. He saw that the offending Truck was coming from the opposite direction and it was being driven rashly and negligently with a speed of 70-80 Kms., per hour. When he could notice that it may lead to some untoward incident, he had cautioned the deceased for saving him, on which, the deceased had taken his Luna towards left side of the road, even then the Luna was dashed by the offending Truck. He has very specifically mentioned the registration number of the Luna of the deceased and that of the offending Truck. This witness has been cross examined by the counsel for the Insurance Company, but nothing unusual was brought on record to disbelieve his testimony at least to the effect that he had witnessed the manner in which the accident occurred and the deceased died on account of the said accident. 9. The Tribunal has disbelieved the testimony of this witness on the ground that it appears very unnatural and unbelievable that a person coming from back side on his Scooter would call a person driving the Luna for saving his life. 9. The Tribunal has disbelieved the testimony of this witness on the ground that it appears very unnatural and unbelievable that a person coming from back side on his Scooter would call a person driving the Luna for saving his life. The Tribunal has also recorded the reason for taking this witness as unnatural because he has admitted in the cross-examination that the deceased K.C. Philip was going at a distance of 150 ft. and he had seen the truck from a distance of 400-500 ft. Another reason for disbelieving the testimony of this witness is that he had deposed that he gave information to the Azad Nagar Police Station, but the First Information Report was lodged by one M. Vasudevan Nair. 10. Obviously, the reasons given for disbelieving the testimony of this witness do not appear to be sound and good. What is unnatural when a man calls somebody and cautions him after noticing that some untoward incident may take place? It appears to be a normal human conduct and nothing appears to be wrong in such conduct. As far as F.I.R. is concerned, giving information to the Police and reducing the same in writing and recording it as the First Information Report by the Police are two different things. This witness has never claimed that he had lodged the F.I.R. in the concerned police station and it was reduced into writing by the Station House Officer. He has only said that he had given information to the concerned Police. Therefore, if on his information no report was registered by the Police that cannot be said to be a fault on the part of this witness (A.W.3) whose conduct was otherwise natural in the prevailing facts and circumstances of this case. Therefore,. we place our reliance Oil the evidence of this witness (A .W.3). 11. If we carefully examine the evidence of this witness, it would appear that the offending truck was coming from the opposite direction with a very high speed and, in fact, its driver was rashly and negligently driving the truck. Therefore,. we place our reliance Oil the evidence of this witness (A .W.3). 11. If we carefully examine the evidence of this witness, it would appear that the offending truck was coming from the opposite direction with a very high speed and, in fact, its driver was rashly and negligently driving the truck. but at the same time, it cannot be lost sight of that when every thing was noticed from a distance of about 250-350 ft., it was also the responsibility of the deceased to stay and keep his Luna at such a place or at the extreme side of the road so as to avoid the accident, which he did not do. He did not take care even after the call of A.W.3 and ultimately took his vehicle on the edge of the left side of road where it was dashed by the offending truck. After examining the over all scenario of the case, we hold that it was an accident on account of contributory negligence of the driver of the offending vehicle as also the driver of the Luna (deceased) and we hold that both the drivers were equally responsible for the accident to the extent of 50%. 12. So far as the income of the deceased is concerned, the Tribunal has recorded a finding that he was earning Rs. 7045/- per month. This finding has been recorded on the basis of evidence of A.W.2 Prabhakar Nair, who was working as a Manager in the Coffee House. He had proved the certificate issued by the Management of the said concern. Therefore, we propose to compute the dependency as also the damages on the basis of the said earning of the deceased. In lump-sum, after deducting Rs.2545/- towards personal expenses of the deceased, the monthly dependency of the claimants, would come to Rs.4500/and the annual dependency Rs.54,000/-. Looking to the age of the deceased, which was 45 years at the time of incident, as also the claimants, we chose to apply the multiplier of II and the loss of dependency is calculated as Rs. 5,94,000/-. Apart from this, by adding Rs. 10,000/- under other permissible heads, the total amount of compensation is worked out as Rs. 6,04,000/-. The claimants would be entitled to 50% of this amount i.e., Rs. 5,94,000/-. Apart from this, by adding Rs. 10,000/- under other permissible heads, the total amount of compensation is worked out as Rs. 6,04,000/-. The claimants would be entitled to 50% of this amount i.e., Rs. 3,02,000/- and this we hold to be the just and proper compensation to the claimants on account of death of K.C. Philip who was husband of the claimant No.1 and father of claimants No.2 & 3. On this amount, looking to the long period elapsed, we further allow quantified interest of Rs.48,000/-, therefore, the total amount of compensation payable to the claimants would be Rs.3.50,000/-. The Insurance Company is granted two months time to deposit the said amount, failing which, it shall be liable to pay interest@6% per annum for the period commencing after two months from today till its realization. 13. No orders as to cost. Appeal Allowed.