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2008 DIGILAW 579 (CAL)

Krishna Dey v. National Insurance Company Ltd.

2008-06-11

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment : BHASKAR BHATTACHARYA, J. (1) THIS appeal is at the instance of the applicants under Section 166 of the motor Vehicles Act and is directed against the award dated 30th April, 2003 passed by the learned Additional District Judge, 6th Court, Midnapore and the motor Accident Claims Tribunal, in M. A. C. Case No. 329 of 2001 thereby disposing the said proceeding by directing the National Insurance Company, the insurer of the vehicle which was registered in the State of Orissa with which the vehicle driven by the victim collided resulting in his death, to pay a sum of Rs. 65,000/- as compensation. (2) BEING dissatisfied, the claimants have come up with the present appeal. (3) IT appears from record that the victim, namely, Tapan Kumar Dey, was the owner of a truck bearing WB-33/0243 and he was driving his own truck through the National Highway-42 when another truck bearing the Registration number ORY-7343 coming from the opposite side (hereinafter referred to as the Orissa-Vehicle) had a collision with the said truck, as a result, the victim died. (4) IN the claim-application, in addition to the owner of the Orissa-Vehicle, the National Insurance Company Limited, its insurer and the United India insurance Company Limited, the insurer of the truck of the victim, were also made parties. The owner of the Orissa-Vehicle did not contest the proceedings, as a result, its insurer, namely, the National Insurance Company prayed for leave under Section 170 of the Act to contest the proceedings and such permission was granted. The National Insurance Company filed written statement denying the material allegations made in the claim-application and its defence, inter alia was that the victim himself was negligent and, therefore, the owner of the Orissa-Vehicle, insured by it, had no liability. (5) AT the time of hearing, the widow of the victim and one Satya Mandi, the helper of the victims truck, deposed in support of the claim but nobody gave evidence on behalf of the either of the Insurance Companies. Both the above named insurers, however, separately cross-examined the witnesses for the claimants. (5) AT the time of hearing, the widow of the victim and one Satya Mandi, the helper of the victims truck, deposed in support of the claim but nobody gave evidence on behalf of the either of the Insurance Companies. Both the above named insurers, however, separately cross-examined the witnesses for the claimants. (6) THE learned Tribunal below, after considering the materials on record, held that the victim died of the accident mentioned in the claim-application but according to it, both the drivers, i.e. the victim and the driver of the other truck, were equally responsible by relying upon the opinion as mentioned in the charge sheet submitted by the police. (7) THE Tribunal below noticed that the Identity Card of the victim issued by the Election Commission, which was marked as an Exhibit, recorded that he was aged 37 years on 1st January, 1995 from which it can be reasonably inferred that on the date of accident occurred on January 6, 2001 he was aged 43 years. In spite of such evidence on record, which was corroborated by the unchallenged testimony of the widow of the victim, the Tribunal below concluded that in the absence of his birth certificate, the victim should be held to be within the age group of 43-47 at the time of accident and, accordingly, the multiplier of 13 should be applicable in assessing the compensation. The learned Tribunal further held that in the absence of specific evidence showing the actual income of the victim, the notional annual income of Rs. 15,000/- should be treated to be the income of the victim and thus, applying the multiplier of 13, it concluded that the claimants should have been entitled to Rs. 1,30,000/-as compensation, but, having regard to the fact that the victim himself was equally responsible with the driver of the other vehicle, the Insurance Company of the Orissa-Vehicle should pay a sum of Rs. 65,000/-being the half of that amount. The Tribunal accepted the contention of the learned counsel for the insurer of the truck of the victim that as no additional premium was paid to his client to cover the life-risk of the driver of the vehicle, the said insurer could not be saddled with any liability. (8) BEING dissatisfied, the appellants have come up with the present appeal. The Tribunal accepted the contention of the learned counsel for the insurer of the truck of the victim that as no additional premium was paid to his client to cover the life-risk of the driver of the vehicle, the said insurer could not be saddled with any liability. (8) BEING dissatisfied, the appellants have come up with the present appeal. (9) AFTER hearing the learned counsel for the parties and after going through the materials on record, we find that the death of the victim arising out of the accident is not in dispute. In this case, the owner of the other vehicle was made party but in spite of such fact, he did not contest the proceeding denying the liability of his driver. In such circumstances, the Tribunal gave permission to the insurer of the Orissa-Vehicle to contest. Once such permission was taken, it was the duty of the National Insurance Company to bring the driver of the said truck or other competent witnesses to the witness box or to lead specific evidence showing that the evidence of the helper of the victim who was an eyewitness of the accident was not trustworthy and that the accident occurred due to the contributory negligence of the victim. (10) THE moment we find that the driver of the other truck was avoiding witness box to face cross-examination in spite of the evidence given by the helper of the victim accusing him for the accident, we are left with no other alternative but to draw adverse presumption against such driver in the absence of any other evidence demonstrating negligent driving of the victim. It appears from the evidence of the helper of the victim that the accident occurred on the left side of the road and according to him, the other truck was solely responsible for the head-on collision. (11) IN such circumstances, in our view, the learned Tribunal below erred in law in holding that the drivers of both the vehicles should be treated to be equally responsible when such finding is based on no legal evidence on record. The opinion given by the Police Officer in the charge sheet submitted in the criminal proceedings, prima facie holding both the drivers to be equally guilty, cannot be used against the appellants as a substantive piece of evidence of the guilt of the victim. The opinion given by the Police Officer in the charge sheet submitted in the criminal proceedings, prima facie holding both the drivers to be equally guilty, cannot be used against the appellants as a substantive piece of evidence of the guilt of the victim. That document is admissible only to prove that such a charge sheet has been given but the veracity of the statements contained therein cannot be proved unless the makers of the statements mentioned therein are brought to the witness box to prove those statements and face cross-examination at the instance of the appellants. (12) THE next question is what should be the multiplier to be applicable for calculating the amount of compensation. We find that in the claim-application and in evidence, the claimants have maintained that the victim was aged 43 years at the time of accident, which is corroborated by the Identity Card issued by the Election Commission. The widow of the victim in her oral evidence reiterated the said age as that of her husband and no suggestion to the contrary was given to her in cross-examination. In such circumstances, we do not approve the finding of the learned Tribunal below that in the absence of any birth certificate, the victim should be held to be in the age group of 43-47. We, therefore, hold that he was aged 43 years at the time of accident. Once we hold that the victim was aged 43 years at the time of death, the appropriate multiplier should be 15 and not 13 as wrongly applied by the Tribunal. (13) AS regards the income of the victim, there is no dispute that he was a truck owner carrying on business of transportation and used to drive the vehicle himself without engaging any driver. The widow of the victim has specifically asserted that the monthly income of her husband was Rs. 9,000/-a month. It appears that although the insurer of the vehicle owned by the victim gave a vague suggestion in her cross-examination denying such fact, the National insurance Company, the insurer of the other vehicle, did not put any suggestion to the widow of the victim disputing her claim that her husbands income from the business was Rs. 9,000/-a month. Moreover, the owner of a truck, who himself drives for saving the salary of a driver, quite reasonably earns Rs. 9,000/-a month. Moreover, the owner of a truck, who himself drives for saving the salary of a driver, quite reasonably earns Rs. 9,000/ a month and, therefore, the said amount cannot be said to be an unreasonable claim so as to discard the said statement as unworthy of credence. The Tribunal below, in the fact of the present case, perversely applied the principle of notional income to the case of an admitted owner of a truck who purchased the truck by taking loan from the Bank as it appears from the evidence of widow. Moreover, it has also been proved that after the accident, the truck was sold at the price of rs. 1,47,000/-and from that money, the entire dues of the Bank was liquidated. The National Insurance Company merely gave a suggestion in the cross-examination that the said truck had not been sold and that the members of the family of the victim was maintaining themselves from the income of the truck, which was denied by the P. W.-1. The fact that the truck was purchased by taking loan from the Bank and that the entire loan was paid off from the sale-price of Rs. 1,47,000/- itself indicates that the victim had sufficient income from which he not only maintained his family consisting of four members but also liquidated the loan amount by way of instalments. We, therefore, find that this is a fit case where Rs. 9,000/- should be accepted as the monthly income of the victim. If we apply the principle mentioned in the Second Schedule of the Motor Vehicles Act in the fact of the present case, the total amount of compensation will be rs. 72,000/- x 15 = Rs. 10,80,000/- + Rs. 9,500 (funeral expenditure, loss of estate and loss of consortium) = Rs. 10,89,500/-, but having regard to the fact that the appellants restricted their claim to Rs. 9,00,000/-, we assess that amount (Rs. 9 lakh) to be the just compensation. The appellants are also entitled to get the interest on the abovementioned amount at the rate of 8 percent per annum from the date of filing of the application until actual payment. (14) WE, accordingly, set aside the award impugned and modify the same by enhancing the amount to Rs. 9 lakh with interest at the rate of 8 percent per annum from the date of filing of the application until actual payment. (14) WE, accordingly, set aside the award impugned and modify the same by enhancing the amount to Rs. 9 lakh with interest at the rate of 8 percent per annum from the date of filing of the application until actual payment. The amount should be paid in the same manner and the proportion to the appellants as indicated in the award impugned. The Insurance Company is directed to deposit enhanced amount before the learned Tribunal below within a month from today. It is needless to mention that the running of interest on the amount already paid will be stopped on the date of deposit of such amount. (15) IN view of the disposal of the appeal itself, the connected application has become infructuous and the same is disposed of accordingly. (16) IN the facts and circumstances, there will be, however, no order as to costs.