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Tripura High Court · body

2016 DIGILAW 49 (TRI)

United India Insurance Co. Ltd. v. Purnima Shil

2016-02-22

DEEPAK GUPTA

body2016
JUDGMENT : This appeal by the Insurance Company is directed against the award dated 08.12.2011 passed by the learned Motor Accident Claims Tribunal, South Tripura, Udaipur in TS (MAC) No. 57 of 2010 whereby the learned Tribunal awarded a sum of Rs.17,97,442/- in favour of the claimants. 2. The main grounds urged by the insurance company are (i) that the deceased was guilty of contributory negligence and (ii) that the amount of compensation granted is on the higher side. In this behalf the main ground is that deduction should have been 1/3rd and not 1/4th for the personal expenses of the deceased. 3. The undisputed facts are that on 20th December, 2007 Anil Chandra Shil Sharma, the deceased was driving a motor cycle bearing registration No. TR-03-A-6258 and one Dr. Joydeb Chakraborty was the pillion rider. It is not disputed that an accident took place between this motor cycle and jeep No. TR-03-2097 which was coming from the opposite side. The claim petition was filed by the parents, the two minor children and the widow of the deceased and they claimed that the accident due to the rash and negligent driving of the driver of the jeep. The owner and driver of the jeep filed joined written statement and stated that the driver of the jeep was not at fault. It was also pleaded that the vehicle was duly insured with the insurance company and the liability, if any, to pay the compensation, if awarded, would be that of the insurance company. The insurance company also contested the claim on merits. 4. The claimant appeared as her own witness. She is not an eye witness to the accident. She has, however, stated that her husband was working in the Department of Health, Government of Tripura and his monthly salary at the time his death was Rs.11,001/- per month. The claimant also examined one Sucharita Majumder, P.W-2 who stated that she is a staff nurse. According to her she saw the deceased driving the motor cycle and Dr. Joydeb Chakraborty was sitting behind him. She called out to Dr. Joydeb Chakraborty and thereafter deceased stop the motor cycle and when she was talking to Dr. Joydeb Chakraborty the jeep hit the motor cycle. The only cross examination to her is that she was not at the place of occurrence and that she had deposed falsely. Joydeb Chakraborty was sitting behind him. She called out to Dr. Joydeb Chakraborty and thereafter deceased stop the motor cycle and when she was talking to Dr. Joydeb Chakraborty the jeep hit the motor cycle. The only cross examination to her is that she was not at the place of occurrence and that she had deposed falsely. She has been questioned by the Court also and states that her duty timings are 8 am to 2 pm and that she works at Kowaifung Sub-Center under Jolaibari PHC, Kowaifung which at a distance of 7/8 kilometers from the Jolaibari PHC. She, however, states that her resident is at Jolaibari. P.W-3 is one Sri Surendra Tripura who is a day labourer and he also states that he was an eye witness to the accident. 5. The Court itself summoned the Investigating Officer of the case and during the course of investigation, the Investigating Officer stated that he had recorded the statement of Sucharita Majumder and according to the statement that he had recorded Sucharita Majumder had stated that Joydeb Chakraborty and the deceased had left Kowaifung Sub-Centre after duty was over. Twenty minutes later when she has boarded a commander jeep she came to the site of the accident. The learned Court held that because of this she could not believe that P.W-2 had witness the accident. I am afraid that the learned Tribunal totally misinterpreted the provisions of law. A statement of a witness recorded under Section 161 Cr. P.C is not a signed statement. It is statement recorded by a police official. This statement can only be used for the purposes of contradicting the witness and if the witness has to be contradicted then this statement has to be put the witness and only thereafter the contradiction can be brought out. In the present case when Sucharita Majumder appeared in the witness box the statement was not put to her. In fact not even a question was put to her whether her statement had been recorded under Section 161 Cr. P.C. or not? Even if, the Court felt later that some inquiry was required, it should have recalled Sucharita Majumder and could have confronted her with the statement. 6. Therefore, I am clearly of the view that the statement of Sucharita Majumder allegedly recorded under Section 161 Cr. P. C cannot be used. P.C. or not? Even if, the Court felt later that some inquiry was required, it should have recalled Sucharita Majumder and could have confronted her with the statement. 6. Therefore, I am clearly of the view that the statement of Sucharita Majumder allegedly recorded under Section 161 Cr. P. C cannot be used. The statements of P.W-2, Sucharita Majumder and P.W-3, Sri Surendra Tripura recorded in Court have to be read in evidence. The driver of the vehicle though made a party did not stepped into the witness box therefore, adverse inference has to be drawn against him. Neither the insurance company nor the owner, nor the driver tried to produce any other evidence and therefore, I am clearly of the view that this is not a case of contributory negligence. 7. The next question is what should be the amount of compensation. The deceased was earning Rs.11,001/- per month. After deducting Rs.180/- towards the Professional Tax the balance amount comes to Rs.10,821/-. The learned Tribunal had added 30% for future prospects since the deceased was about 44 years old. The main issue is whether 1/3rd should have been deducted or 1/4th should have been deducted for personal expenses of the deceased. 8. In Sarla Verma(Smt.) and Others Vrs. Delhi Transport Corporation and Another: (2009) 6 SCC 121 the Apex Court held that where the number of dependent family members are four to six then 1/4th should be deducted. In this case, even if the father is excluded then also dependent family member comes to four i.e. the mother, the widow and the minor children. Therefore, the learned Tribunal was right in deducting 1/4th for the personal expenses of the deceased. 9. I therefore, find no error in the award passed by the learned Tribunal. Accordingly, the appeal filed by the insurance company is dismissed. No order as to costs. Send down the LCRs forthwith.