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2015 DIGILAW 402 (GAU)

MANIKA SIL v. STATE GOVERNMENT OF ASSAM

2015-03-31

N.CHAUDHURY

body2015
JUDGMENT : N. CHAUDHURY, J. 1. Judgment and award dated 4.4.2012 passed by the learned Member, MACT , Nalbari in MAC Case No. 2 of 1994 has been challenged in this appeal. By that judgment, learned tribunal dismissed the claim holding that claimant miserably failed to establish her case and that mere oral evidence of the claimant cannot fasten the liability on the opposite party to pay compensation. 2. The case of the claimant was that her husband Bhola Sil was a handcart puller. On 4.8.1993 at about 12.30 pm while he was proceeding with his handcart, a police vehicle hit him from backside at a place called Bilpara. The victim succumbed to the injury and so the claim of compensation was made. Initially in the claim petition, it was mentioned that offending vehicle having registration No. AS-01/0010 was a Government vehicle and that it caused the death of the victim. However, subsequently claim petition was amended and thereby the registration number of the vehicle has been deleted by confining the pleading to the claim that the offending vehicle was a Government vehicle in use by Assam police. It is further claimed that deceased was earning Rs. 1500/- per month and he was 50 years of age at the time of his death. 3. On being summoned, opposite parties No. 1 to 5 who are State of Assam, Director General of Police, Inspector General of Police ( Intelligence Deptt), Inspector General of Police (Operation Deptt.), Driver of the police vehicle and Secretary to the Home Department of Assam filed a joint written statement denying involvement of Government vehicle in the accident. It was, however, admitted that as per investigation done by police there was a motor accident on 4.8.1993 on National Highway No.31 at Bilpar and that an old man named Bhola Sil died in the said accident. But in course of investigation, nobody could supply the vehicle number. Upon such rival contention of the parties, the learned MAC Tribunal framed as many as six issues which are as follows: (i) Whether the case is maintainable? (ii) Whether there is a cause of action? (iii) Whether the case is bad for non joinder of necessary parties? (iv) Whether the claimant is entitled to get compensation? (v) Whether the accident occurred due to rash and negligent driving of the alleged vehicle or use of the alleged vehicle? (ii) Whether there is a cause of action? (iii) Whether the case is bad for non joinder of necessary parties? (iv) Whether the claimant is entitled to get compensation? (v) Whether the accident occurred due to rash and negligent driving of the alleged vehicle or use of the alleged vehicle? (vi) What other relief or reliefs, the claimant is entitled to? 4. Claimant examined three witnesses including an eye witness to the accident but the Opposite party did not adduce any evidence oral or documentary . Upon consideration of the materials on record, the learned tribunal held that the claim was maintainable and that it was not bad for defect of parties. While deciding issue No. 3, the learned tribunal found that prima-facie there is allegation by claimant that vehicle belonged to police department which caused the accident resulting in death of Bhola Sil. But while deciding issues No. 4, 5 and 6, the learned tribunal held that there was no evidence on record to hold that the vehicle involved in the accident belonged to Government of Assam. The opposite party took a specific plea that offending vehicle did not belong to government. After perusal of records, the learned tribunal hold that claimant failed to prove her case by producing FIR and the records of the criminal case registered by police. The officer who investigated the case was not examined by claimant. With these findings on fact, the learned tribunal held that claimant miserably failed to establish her case. It is this judgment and award which has been brought under challenge in the present appeal. 5. I have heard Mr. S.K. Goswami, learned counsel for the appellant and Mr. G. Sharma, learned counsel for the respondent. I have perused the lower court records including the deposition of the witnesses and the exhibits adduced by them. 6. The learned counsel for the appellant submits that the claimant specifically mentioned in the amended claim petition that the offending vehicle was a police vehicle. The eye witness, PW-2 also deposed that the vehicle belonged to the police department but since none of these witnesses were cross-examined by opposite party and the police department withheld the report of investigation of the case, the learned tribunal committed error in dismissing the claim petition. 7. Per contra, Mr. The eye witness, PW-2 also deposed that the vehicle belonged to the police department but since none of these witnesses were cross-examined by opposite party and the police department withheld the report of investigation of the case, the learned tribunal committed error in dismissing the claim petition. 7. Per contra, Mr. G Sharma, learned counsel for the respondent would argue that unless the claimant furnishes details of the offending vehicle, she cannot claim compensation from the police department. 8. PW-1 is one Maikon Sil, wife of the victim. She stated that accident took place under the jurisdiction of Ghograpar Police Station and a police case was registered vide Ghograpar Police Station Case No.62 of 1993 corresponding to GD Entry No.174 of 1993. It was claimed that vehicle involved in the accident was a vehicle of Assam police. The claimant stated on oath that victim was earning Rs. 1500/- per month at the time of the accident and that he was not guilty at all for the accident, rather police vehicle was totally guilty and liable for the death of the victim. PW-2 , Tarun Ch. Deka stated on oath that on 4.8.1993 at about 12.30 pm, he met the victim at Bilpara on National Highway No.31. He was coming towards his home and suddenly a police vehicle of Assam police knocked him down. Victim succumbed to the injury and post mortem was done at Nalbari Civil Hospital. He also supported the claimant that victim was earning Rs. 1500/- at the time of the accident. None of these two witnesses have been cross-examined by the opposite party. PW-3 is the doctor who conducted the post mortem examination. He proved report of the post mortem examination as exhibit-1(2). It appears from the post mortem report that victim died due to hamorrhage and shock as a result of multiple injury sustained by him which are ante-mortem in nature. The learned MAC tribunal was of the view that claimant was duty bound to produce the FIR and to examine the Investigating Officer to prove her case. But in so doing, it was not noticed that opposite party themselves belonged to the police department. Investigation report including the FIR was in the custody of the opposite party themselves. The learned MAC tribunal was of the view that claimant was duty bound to produce the FIR and to examine the Investigating Officer to prove her case. But in so doing, it was not noticed that opposite party themselves belonged to the police department. Investigation report including the FIR was in the custody of the opposite party themselves. Opposite party not having adduced any evidence and not having produced the FIR and the records of the police case blamed the claimant that she did not examine the police officer. Fact remains that there was an accident on 4.8.1993 and that the victim died due to such accident. Ghograpar P.S Case No.62 of 1993 was registered on this basis and investigation was done. The eye witness specifically deposed that the vehicle was used by Assam police at the time of the accident and it was guilty for the accident. This piece of evidence went unrebutted for failure on the part of the opposite party to cross-examine him. The law relating to burden of claims in such case has been considered by the Hon'ble Supreme Court in the case of Bimala Devi & ors v. Himachal Raod Trans. Corpn & Ors. reported in 2009 ACJ 1725 . Para 15 of the said judgment may be quoted for ready reference: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties. " 9. It is settled law that claimant is to prove his/her case by preponderance of probability. Here in this case, the claimant and the eye-witness specifically claimed that vehicle belonged to Assam police. Even the opposite party in their written statement admitted that there was an accident and that a police case was registered in regard thereto. Opposite party admitted that Bhola Sil died in the accident. Here in this case, the claimant and the eye-witness specifically claimed that vehicle belonged to Assam police. Even the opposite party in their written statement admitted that there was an accident and that a police case was registered in regard thereto. Opposite party admitted that Bhola Sil died in the accident. Since PW-2 is an eye-witness and he claimed that the vehicle was being used by Assam police at that time, the initial burden was discharged by claimant. This witness has neither been cross-examined to shake his credibility nor has the opposite parties led any evidence to the contrary. Police records could have been produced by opposite parties themselves since same were in their custody. Had the records been produced and thereupon it was found that no allegation of involvement of Government vehicle was there in the FIR in that event benefit would have gone in favour of the opposite party themselves. Withholding of such evidence, therefore, is bound to have adverse effect on the opposite parties and the tribunal was constrained to presume liability t against them. Law is settled in this regard that when a party stays away from the witness box, presumption has to be drawn against him. Here the opposite party being in custody of the document did not produce the same before the tribunal. Under such circumstance, the learned tribunal committed error in holding that burden was on the claimant to bring the records from the opposite party and to examine the I.O. If a private vehicle is requisitioned by Government for its use and it meets with an accident in that event it is not the owner of the vehicle but the Government who is liable to pay compensation. This question came up for consideration in the case of National Insurance Company v. Deepa Devi reported in (2008) 1 SCC 414 . The same point was considered in the case of Purnya Kala Devi v. State of Assam & anr. reported in 2014 ACJ 1269 . There is no doubt, therefore, that if the vehicle was under the requisition of the Government in that event the Government is responsible to pay compensation. 10. Here in this case, the learned tribunal held that there is no evidence to show that offending vehicle belonged to the Government of Assam. This finding of the learned tribunal appears to be perverse inasmuch as PW-2, Tarun Ch. 10. Here in this case, the learned tribunal held that there is no evidence to show that offending vehicle belonged to the Government of Assam. This finding of the learned tribunal appears to be perverse inasmuch as PW-2, Tarun Ch. Deka stated on oath that the offending vehicle was a police vehicle. This evidence of PW-2 has not been challenged and so prima-facie there is some materials to hold the view that offending vehicle was under the use of Assam police. Even learned tribunal while deciding issue No. 3 was satisfied that prima facie there is allegation about involvement of the vehicle belonging to the police department. This being the position, it is difficult to hold that police vehicle was not involved in the accident. Now if there is some evidence to hold that police vehicle was involved in the accident in that event whether its registration number is produced or not the effect remains the same. Situated thus, the finding of the learned tribunal is liable to be set aside. It is accordingly set aside. Under normal circumstance, the case could have been remanded to the tribunal for deciding the assessment of compensation but since the accident is of 1993 it may not be just and proper after 22 years to remand the case for such purpose. Accordingly, this court proposes to decide the claim on the basis of the available materials. The unrebutted evidence is that victim was earning Rs. 1500/- per month at the time of the accident and he was 50 years of age. There is also evidence on record that offending vehicle was a police vehicle. So police department of the State of Assam is liable to pay compensation to the claimant which can be quantified in the light of the Judgment in the case of Sarala Verma & Ors. v. Delhi Transport Cor. & anr. reported in (2009) 6 SCC 121 . Victim was 50 years of age and so multiplier of 13 is to be taken . Victim was earning Rs. 1500/- and so dependency can be found by deducting ?rd from it which comes to Rs. 1000/- . The compensation, therefore, will be as follows:- Amount of dependency = Rs. 1000 X 12 X 13 = Rs. 12000 X 13 = Rs. 1,56,000/- Add Funeral expenses = Rs. 5,000/- Loss of consortium = Rs. 10,000/- Total = Rs. 1500/- and so dependency can be found by deducting ?rd from it which comes to Rs. 1000/- . The compensation, therefore, will be as follows:- Amount of dependency = Rs. 1000 X 12 X 13 = Rs. 12000 X 13 = Rs. 1,56,000/- Add Funeral expenses = Rs. 5,000/- Loss of consortium = Rs. 10,000/- Total = Rs. 1,71,000/- (Rupees One Lakh Seventy One Thousand) only. The amount shall carry interest @ 6% per annum with effect from the date of application till realisation. Government shall make the payment within a period of 2(two) months from today. 11. Appeal stands allowed. 12. No order as to cost.