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Tripura High Court · body

2016 DIGILAW 47 (TRI)

Tapati Nag v. Abu Taher Saikh

2016-02-19

DEEPAK GUPTA

body2016
JUDGMENT : This is an appeal filed by the claimant for enhancement of compensation and is directed against the award dated 21.07.2012 passed by the learned Motor Accident Claims Tribunal, West Tripura, Agartala whereby he awarded compensation of Rs.2,59,000/- in favour of the claimant. 2. The claimant, Smt. Tapati Nag is the mother of deceased Joydeep Nag. The admitted facts are that on 08.10.2002 Joydeep Nag along with some friends was travelling in a Maruti Car bear registration No.WB-02A-9449 from Kolkata to Agartala. At Ahiran Bridge there was a collision between this Maruti Car and Lorry bearing registration No.WGQ-1627. In the claim petition it is alleged that the Maruti Car had crossed 3/4th of the bridge and was being driven slowly and cautiously and that the Lorry came from the opposite side in a rash and negligence manner at a high speed. 3. The learned tribunal came to the conclusion that both the deceased who was driving the Maruti Car and the driver of the Lorry were equally negligent. He assessed the income of the deceased @ Rs.5,000/- per month and calculated the total loss at Rs.5,18,000/-but has held the claimant entitled to only Rs.2,59,000/- on account of contributory negligence. 4. Sri S. K. Dutta, learned counsel for the claimant submits that there is no cogent evidence in the instant case to prove that the accident had taken place due to rash and negligent driving of the deceased driver of the vehicle. He relied upon the judgment rendered by the Apex Court in Meera Devi & Anr. Vrs. H.R.T.C. & Ors.: (2014) 4 SCC 511 , wherein the Apex Court held as follows: “10. To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case.” 5. There can be no quarrel with the proposition of law that there must be some evidence to prove contributory negligence. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case.” 5. There can be no quarrel with the proposition of law that there must be some evidence to prove contributory negligence. At the same time there must be some evidence to prove negligence of the opposite side. In the present case, the only witness examined by the claimant was the mother of the deceased. Admittedly, she was not present when the accident took place and therefore, her evidence as to the position of the car or the manner in which the car was being driven is only hearsay and not admissible in evidence. 6. Next reliance is placed upon the F.I.R. lodged by one of the occupants of the Maruti Car who is also a friend of the deceased. The F.I.R. reads as follows: “To The Officer In-Charge, Suti Police Station, Mursidabad. Sir, My humble submission is that yesterday (dtd 08-10-02) while we the 3 (three) friends namely Anirban Das, Sudip Das and Manidip Deb along with Joydeep Nag were proceeding to Tripura from Kolkata boarding on a vehicle (a Maruti Car) bearing regn no. 02-A-9449 then one lorry coming from opposite direction had met head on collision with our vehicle over the iron bridge located under Suti Police Station on 08-10-02 AD at around 9.00 o'clock. Resultantly 2 (two) persons got admitted in the Jangipur Sardar Hospital. Amongst them one was Joydeep Nag and another was Anirban Das. Doctorbabu on duty had declared Joydeep Nag as dead at around 3.45 o'clock night and till now another also has been admitting in the Hospital. No details has yet been learnt in the matter of lorry. Inspite of this it is humbly prayed that a legal step be taken against the offending 'Lorry' and the concerned authority may decide in this regard providing solution. Delay has been caused in lodging the ejahar as (we) were busy with medical treatment of the injured persons as well as in the matter of the deceased person. Subsequently, ( ) learnt that the number of the vehicle is W.G.Q. 1627. Scribe:- Sri. Mihir Das S/O- Lt. Beni Madhav Das 9-10-2002 The End. Date- 9-10-02 Sudip Das S/O-Sri. Mihir Das 24/2, Ashoke Road. Subsequently, ( ) learnt that the number of the vehicle is W.G.Q. 1627. Scribe:- Sri. Mihir Das S/O- Lt. Beni Madhav Das 9-10-2002 The End. Date- 9-10-02 Sudip Das S/O-Sri. Mihir Das 24/2, Ashoke Road. Ganguli Bagan Kolkata- 84.” A perusal of this F.I.R does not indicate that the Lorry driver was at fault. It does not indicate that the lorry was being driven in a rash and negligent manner. It does not even indicate that the Maruti Car had crossed 2/3rd of the bridge when the accident occurred. 7. The informant was a friend of the deceased and he could have been easily been examined by the claimant but for reasons best known to the claimants he has not been examined. 8. In Meera Devi’s case which was decided by the Supreme Court there was an eye witness to the accident who had deposed that at the place of the accident there was a car and the bus driver had not blown the horn and the bus was being driven at a high speed. The tribunal had passed an award in favour of the claimant but the High Court had held the driver liable for contributory negligence only on the ground that since the driver was below 18 years of age he could not have a license to drive the scooter and therefore, contributory negligence was presumed. The judgment of the Apex Court has to be read in that context. In the present case there is no eye witness and the F.I.R does not help us in anyway and therefore, there is no material to decide how the accident took place. In such a situation, the learned tribunal was justified in holding that there was no evidence before him to show who was negligent and who was not negligent and, therefore, since there was a head on collision between the two vehicles he held both the drivers of the vehicles to be equally responsible for the accident. I find no error in this part of the judgment. 9. However, as far as the income is concerned I am not in agreement with the learned tribunal. The claimant had claimed that the income of the deceased is Rs.7,000/- per month. It is true that the claimant did not lead evidence to prove any income. But the fact remains that the deceased was an educated person. 9. However, as far as the income is concerned I am not in agreement with the learned tribunal. The claimant had claimed that the income of the deceased is Rs.7,000/- per month. It is true that the claimant did not lead evidence to prove any income. But the fact remains that the deceased was an educated person. He was running an office and therefore, his income at least be assessed @ Rs.200/- per day or Rs.6,000/- per month. To this will have to be added 50% for his future prospects and the income comes out to Rs.9,000/-. 10. This Court follows two methods while assessing compensation. In those cases where the claimants are parents and the deceased was unmarried, 50% is deducted for the personal expenses of the deceased and in such an eventuality the multiplier is applied by taking into consideration the age of the deceased. In case, the multiplier is to be applied by taking into consideration the age of the claimants, then only 1/3rd should be deducted for the personal expenses of the deceased. 11. In this case since the age of the deceased is known to be 27 years I prefer to deduct 50% for the personal expenses of the deceased which brings the balance to Rs.4,500/- per month or Rs.54,000/- per year. Since the deceased was 27 years old the relevant multiplier would be 17 and the compensation works out to is Rs.9,18,000/-. In addition thereto, the claimant is entitled to Rs.20,000/- for funeral expenses and Rs.50,000/- for loss of her son. Therefore, the total compensation works out to Rs.9,88,000/-. Since I have held that the deceased was himself equally responsible for the accident, the amount of compensation to which the claimant is entitled works out to Rs.4,94,000/-. 12. In view of the above discussion, the award of the learned tribunal is modified and the compensation is enhanced from Rs.2,59,000/- to Rs.4,94,000/-. The insurance company has already satisfied the award passed by the learned tribunal and it is directed to deposit the amount now awarded along with interest @9% per annum from the date of filing of the claim petition till deposit of the amount in the Registry of this Court within 4 months from today. On the amount being deposited, Rs.1,00,000/- shall be released in favour of the claimant by remitting it to a bank account. On the amount being deposited, Rs.1,00,000/- shall be released in favour of the claimant by remitting it to a bank account. The balance shall be kept in a fixed deposit for a period of 5 years, at the first instance. The interest payable on the fixed deposit shall be released in favour of the claimant and after 5 years the entire amount shall be released. 13. The appeal is disposed of in the aforesaid terms. 14. Send down the lower court records.