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2015 DIGILAW 1492 (GAU)

Ajoy Rajkhowa v. Chitra Devi

2015-12-04

N.CHAUDHURY

body2015
JUDGMENT : This appeal under section 173 of the Motor Vehicles Act, 1988 has been preferred by Sri Ajoy Rajkhowa challenging the judgment and award dated 06.03.2009 passed by the learned Member, MACT, Lakhimpur in MAC Case No. 19/2003 whereby the present appellant was directed by the learned Tribunal to make payment of Rs. 3,60,000/- as compensation to the claimant along with interest at the rate of 8% per annum from the date of award till realisation. It is stated that out of the aforesaid awarded amount the appellant already deposited a sum of Rs. 1,25,000/- with the Registry of this court and out of this amount a sum of Rs. 1,00,000/- has already been withdrawn by the claimant along with interest and the balance sum of Rs. 25,000/- is lying with the Registry of this court. Under the award, therefore, the appellant was liable to make further payment of Rs. 2,35,000/- along with interest at the rate of 8% per annum from the date of award till realisation. 2. The respondent, as claimant, approached the learned MACT at North Lakhimpur stating that her husband Bhuban Chandra Sharma of Raidangia village was knocked down by a motor vehicle driven by the present appellant on 14.10.2002 at about 2 p.m. on National Highway while Bhuban Chandra Sharma was returning to his farm house from Ananda market. It is stated that the same offender thereafter took the injured to North Lakhimpur Civil Hospital and having found that he was dead, he was kept in the morgue of the hospital. The claimant came to know about the accident and thereafter enquired into the North Lakhimpur Civil Hospital and found that the deceased was her own husband. She thereafter instituted the claim for compensation stating that the deceased was 32/33 years of age at the time of accident and he was earning Rs. 3,000/- per month at the time of accident. 3. On being notified, the opposite parties appeared and submitted written statement stating that there is no cause of action for the claim, that the claim is bad for non-joinder of necessary parties like Government of Assam and the higher authority of the Police Department, that the claim amount is excessive and abnormal and that rash and negligent driving by the driver was not admitted etc. The opposite parties claimed that they be absolved from payment of compensation. The opposite parties claimed that they be absolved from payment of compensation. The written statement was verified by the Superintendent of Police of Lakhimpur district. 4. Upon such rival contentions of the parties, the learned Tribunal framed the following 6 issues and asked the parties to lead their respective evidence. 1. Whether there is cause of action for the claim? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether the deceased died due to motor accident caused by the SI of Police, Sri Ajay Rajkhowa of Chaoldhowa OP? 4. Whether the accident was due to rash and negligent driving of Sri Ajay Rajkhowa? 5. Whether the death was caused on 14.10.2002 at Ananda Bazar Road and dead body was kept in NL Civil Hospital Dead morgue? 6. Whether any relief/claim of compensation is entitled to in law? If so, what amount of compensation from the Ops? 5. The claimant examined herself as PW 1, her brother-in-law as PW 2 and two witnesses as PW 3 and PW 4. She exhibited documents like post mortem report, a copy of ejahar in G.R. Case No. 1742/2002 etc. The present appellant though submitted an affidavit under Order XVIII Rule 4 of the Code of Civil Procedure as examination-in-chief but subsequently did not come to the witness box for cross examination for which his examination-in-chief was expunged and the learned Tribunal decided the claim case on the basis of the evidence led by the claimant side only. Upon such perusal, the learned Tribunal was of the view that there was cause of action for the claim as husband of the claimant died in a motor accident owing to rash and negligent driving of the driver. It was also decided that since the Secretary to Government of Assam, Home Department and the Superintendent of Police of the Lakhimpur district were impleaded as O.P. No. 2 and 3, the proceeding was not bad for non-joinder of necessary parties and thus, issue No. 2 was decided in favour of the claimant. Coming to the issue No. 3 as to rash and negligent driving of the offending vehicle by the present appellant, the learned Tribunal considered the evidence of PW 3 and PW 4 and held that evidently Bhuban Chandra Sarma died due to motor accident caused by the SI of Police, Ajay Rajkhowa who was the then Incharge of the Chaoldhowa out post. Accordingly, issue No. 4 was also decided in favour of the claimant as Bhuban Chandra Sarma died due to rash and negligent driving of the vehicle by the present appellant in view of findings against issues No. 1 to 3. By deciding issue No. 5 the learned Tribunal relied on the eye witnesses that after the accident had taken place, the present appellant took the injured to North Lakhimpur Civil Hospital and having found that the injured had died in the mean time his dead body was kept in the morgue of the hospital. It was held that in view of the evidence led by the eye witnesses, S.I. Ajay Rajkhowa who was driving the offending vehicle, had taken the dead body to North Lakhimpur Civil Hospital which was subsequently seen by PW 1 and PW 2 at the morgue. With these findings, the learned Tribunal proceeded to make assessment of the compensation. Since there was discrepancy in age of the deceased, the learned Tribunal took the higher age as disclosed by the witnesses of the claimant and held that the deceased was not between 32-35 years of age but 40 years of age at the time of accident and that he was earning Rs. 3,000/- per month. Accordingly, annual dependency was decided at Rs. 24,000/- by deducting one-third from his annual income. As his age was taken to be 40 years as on the date of the accident, the learned Tribunal chose 15 as multiplier and calculated the compensation amount at Rs. 60,000/- and further ordered that this amount would carry interest at the rate of 8% per annum from the date of accident till realisation. Having considered the evidence on record, the learned Tribunal was of the view that there is nothing on record to come to a finding that the vehicle was owned by the police department as it was not registered under police registration number and so the driver Ajay Rajkhowa was held to be responsible to make payment of the compensation amount. Accordingly, direction was given to the present appellant to make payment of awarded amount with interest. Accordingly, direction was given to the present appellant to make payment of awarded amount with interest. The appellant, Ajay Rajkhowa, therefore, approached this court preferring this appeal but in doing so, the other respondents i.e. the Secretary to the Government of Assam and Superintendent of Police of North Lakhimpur district who were impleaded as opposite parties No. 2 and 3 in the main proceeding, were neither impleaded as appellants nor were they impleaded as proforma respondents. Be that as it may, the appeal was admitted by this court and notices were issued. 6. I have heard Mr. M Sarma, learned counsel for the appellant and Mr. D Borah, learned counsel for the sole respondent/claimant. I have perused lower court records including depositions of the witnesses and the exhibits adduced by them. 7. The learned counsel for the appellant submits that even the witnesses of the claimant described the vehicle to be owned and used by the police department. The eye witnesses disclosed that the vehicle was run by the In-charge of the chaoldhowa police outpost on the fateful day. PW 3 stated that on previous occasions he had seen that Chaoldhowa Police outpost was making use of the vehicle. Under such circumstances, according to Mr. M Sarma, learned counsel for the appellant, the Tribunal ought to have directed the State of Assam to make payment of the awarded amount and committed error in saddling the liability with the present appellant only. 8. Per contra, Mr. D Borah, learned counsel for the sole respondent, would argue that it is the present appellant who was found to have driven the vehicle with rash and negligent manner and under such circumstances, he was duty bound to show that such driving of vehicle was in discharge of official duty of the Officer In-charge of the outpost. Even by filing written statement, he has not disclosed that the vehicle was owned by the police department or that it was a private vehicle and requisitioned by the Government for use by police department. Even the appellant did not come to the witness box to depose that he was on official duty or that the vehicle did not belong to him or that the vehicle was kept under the custody of the police department upon requisition etc. Even the appellant did not come to the witness box to depose that he was on official duty or that the vehicle did not belong to him or that the vehicle was kept under the custody of the police department upon requisition etc. The information as to which vehicle caused the incident and who was the owner and lawful custodian of the vehicle was in the knowledge of the present appellant but even thereafter not having disclosed the same, presumption is liable to be drawn against him and so the learned Tribunal has not committed any error in giving direction to the appellant for making payment of compensation. He submits that the appellant has already deposited some amount which the claimant has withdrawn. Apart from this submission, no other submission has been put forward by the learned counsel for the respondent. 9. Having heard the learned counsel for the appellant as well as learned counsel for the sole respondent it appears that the basic point for determination in the present appeal is as follows:- Whether the vehicle belonged to the police department or it was in the custody of the police department when it had met with the accident resulting in death of Bhuban Chandra Sarma? 10. PW 3 and PW 4 are the two witnesses in the case. They stated in no uncertain words that they were on the place of occurrence when they witnessed Sri Ajay Rajkhowa, the S.I. of Police, driving the vehicle in rash and negligent manner and in hitting a cyclist from behind. Subsequently, they came to know that the cyclist was Bhuban Chandra Sarma who was known to PW 3. They also witnessed that Ajay Rajkhowa took the injured in the vehicle and went towards the same direction from where he was coming and then he brought the injured to the North Lakhimpur Civil Hospital. According to PW 3, he came to know that Sri Ajay Rajkhowa did not inform the claimant about the accident and it is he who had informed the claimant about the incident. Thereafter, PW 1 and PW 2 went to North Lakhimpur Hospital and found dead body in the morgue and identified him to be Bhuban Chandra Sarma. According to PW 3, he came to know that Sri Ajay Rajkhowa did not inform the claimant about the accident and it is he who had informed the claimant about the incident. Thereafter, PW 1 and PW 2 went to North Lakhimpur Hospital and found dead body in the morgue and identified him to be Bhuban Chandra Sarma. PW 4 identified himself to be the Secretary of Village Defence Party and in course of his cross examination he stated that he used to go to Chaoldhowa Police outpost and he had seen the vehicle on various occasions in the outpost. He knew Sri Ajay Rajkhowa and identified that it is he alone who was driving the offending vehicle in rash and negligent manner and knocked down the deceased from behind. Now these witnesses disclosed that Ajay Rajkhowa was driving the vehicle at the relevant time in rash and negligent manner and that he knocked down the deceased from behind. Whether Ajay Rajkhowa was in official duty at that time and if so, whether he was driving the vehicle which was on requisition could have been pleaded and proved by him alone. Claimant cannot know that the vehicle was owned by police department or it was a private vehicle requisitioned by the Government for use by the police department. The opposite parties not having disclosed to the Tribunal any records to show that the vehicle was either a police vehicle or that it was requisitioned by the Government for use by police, they have to blame themselves. The Tribunal having found by preponderance of probability that it is the Officer In-charge of the Chaoldhowa outpost, Sri Ajay Rajkhowa who caused the incident, imposed the liability on him. 11. Even during the appellate stage the appellant did not file any application under Order XLI Rule 27 of the Code of Civil Procedure seeking to establish that the vehicle belonged to the Government or that it was requisitioned by the Government for use by police. Had it been so, in that event the liability could have been shifted to police department or the State of Assam. Had it been so, in that event the liability could have been shifted to police department or the State of Assam. At the time of preferring the appeal the appellant did not implead the State of Assam in addition to the opposite parties No. 2 and 3 of the claim proceeding and under such circumstances, the argument sought to be put forward by the learned counsel for the appellant is difficult to accept. Considering the entirety of the circumstances, I do not find that there is any merit in the appeal. Accordingly, the sole point for determination is decided against the appellant. Consequently, appeal stands dismissed. 12. The appellant shall deposit the balance amount with the Registry of this court and upon such deposit being made, the claimant shall be entitled to withdraw the same. 13. No order as to costs.