Research › Search › Judgment

Jharkhand High Court · body

2020 DIGILAW 1179 (JHR)

Amita Sinha v. Praveen Kumar Singh

2020-12-15

KAILASH PRASAD DEO

body2020
JUDGMENT : 1. The claimants namely, Smt. Amita Sinha and Miss Shashi Priya (Minor) have preferred this appeal for enhancement of the Award dated 15.02.2012 passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Compensation Case No. 138/1997, whereby the claimants have been awarded compensation to the tune of Rs. 5,98,000/-along with interest @ 6% per annum from the date of admission of the application under Section 166 of the Motor Vehicles Act i.e. 20.08.2011 from the opposite party no. 3 i.e. the National Insurance Company Ltd. after deducting the amount of Rs. 50,000/-if paid to claimants under Section 140 of Motor Vehicles Act. If the awarded amount is not paid within a period of 60 days from the date of Award, there shall be penal interest @ 8% per annum from the date of Award i.e. the stipulated period till its payment. 2. Learned counsel for the appellants, Mr. Arvind Kumar Lall, has assailed the impugned Award for enhancement on three counts:-firstly, the learned Tribunal has wrongly held contributory negligence @ 50% contrary to the evidence brought on record by A.W.-1 namely, Mirtunjay Singh and A.W.-2 namely, Abhishek Kumar Sinha, secondly, the learned Tribunal has awarded less compensation under conventional head and in view of paragraph-59.8 of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 the compensation under conventional head ought to be granted to the tune of Rs. 70,000/-i.e. Rs. 40,000/-for loss of consortium, Rs. 15,000/-for funeral expenses and Rs. 15,000/-for loss of love and affection and thirdly, the interest ought to be given from the date of filing of the claim application, in view of Section 171 of Motor Vehicles Act and that too @ 7.5% S.I. in view of the judgment passed by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in 2008 (4) JCR 79 (SC). 3. U.P. State Road Transport Corporation reported in 2008 (4) JCR 79 (SC). 3. Learned counsel for the appellants has submitted that without discharging the duty by the Insurance Company with regard to contributory negligence of the deceased, the learned Tribunal has wrongly held and ignored the evidence of A.W.-1 Mirtunjay Singh, who claimed to be an eye-witness and A.W.-2 Abhishek Kumar Sinha, nephew of the deceased, who was travelling with the deceased and was informant of case of Bokaro Steel City P.S. Case No. 93/97 dated 05.04.1997 for the offences under Sections 279/337 and 304A of the I.P.C. 4. Learned counsel for the appellants has further submitted that the Insurance Company has not discharged its liability by examining the Trekker driver to hold that there was 50% contributory negligence of the deceased too, as such the finding recorded by the learned Tribunal shifting 50% liability upon the deceased as contributory negligence is erroneous finding. 5. This Court perused the case of the claimants as stated in para-2 of the impugned judgment, where it has been recorded that on 05.04.1997 at 11:25 a.m. Shashi Ranjan Sinha (deceased) was going on motorcycle along with his nephew Abhishek Kumar Sinha from Damoda to Bokaro Steel City and when they reached near Barga Pool Naya More on left flank of the road, a Trekker bearing No. BR-20D-6161, which was being driven rashly and negligently by its driver, crushed Shashi Ranjan Sinha to death and the pillion rider Abhishek Kumar Sinha also sustained serious injuries on his person and the said motorcycle was also badly damaged. 6. This Court has further perused the impugned Award, where the learned Tribunal has discussed almost all the issues to hold 50% contributory negligence of the Trekker driver and 50% of the deceased. The relevant para is profitably quoted here: “The evidence of A. W. 1 is not believable as he has deposed the boundary of place of accident in para 7 of his cross examination and as per boundary of the place of accident as stated by him it appears that there is no road on its boundary to show that A.W. 1 had not seen the accident with his own eyes. Apart from that A.W. 1 has stated in para 12 that both the persons would be aged about 30 to 35 years whereas the A.W. 2 has deposed in para 24 of his cross examination that at the time of death of his uncle he would be aged about 16 to 17 years. Whereas the A. W. 2 has deposed that he and his uncle Shashi Ranjan Sinha were traveling on two wheeler and stopped near milk shop situated by the side of road after crossing chas pool to Nayamore main road and purchasing two packets of milk by his uncle who kept the same in the dickey and took out the key from the pockets of the vehicle at that time the Trekker No.BR-20D-6161 which was being driven rashly and negligently by its driver came there and violently dashed their motorcycle that was parked by the side of the road. On examination of the evidence of A.W. 1 and A.W. 2, it appears that both the witnesses have categorically stated that the deceased Shashi Ranjan Sinha parked and purchased milk packet either one or two from the milk shop and kept in the dickey of the motorcycle at that time the accident had taken place but the said evidence is not pleaded in the application U/s. 166 of the M. V. Act and it is settled principle of law that the evidence adduced beyond pleading can not be looked into and considered. The A.W. 2 has deposed in para 4 that Bokaro Steel City police recorded his fardbayan regarding the accident and he filed the CC of FIR and on examination of the CC of FIR being Ext. 4, it appears that while the deceased Shashi Ranjan Sinha and he were traveling on their motorcycle and reached near Narga pool, Nayamore road at that time one Trekker No.BR-20D-6161 which was being driven rashly and negligently by its driver and it was over loaded with passengers violently dashed against their motorcycle, as a result of which he fell down and his uncle was crushed. In view of the said allegations alleged in the FIR, it appears that this is a case of head on collision of the motorcycle and Trekker No.BR-20D-6161. In view of the said allegations alleged in the FIR, it appears that this is a case of head on collision of the motorcycle and Trekker No.BR-20D-6161. The A.W. 2 has deposed in para 30 of his cross examination that at the time of accident he and his uncle were going towards Nayamore by crossing Chas pool and the accidented vehicle was coming from Nayamore to Chas. So, the evidence of witnesses that the deceased was parked his vehicle near the milk shop by the side of the road and purchased one or two packets of milk neither pleaded in the application U/s. 166 of the M.V. Act nor alleged in the F.I.R. So, the said evidence is not at all believable rather as per para 30 of the A.W.-2, it appears that the deceased Shashi Ranjan Sinha and his nephew were travelling on the motorcycle and the said motorcycle collided against Trekker No. BR-20D-6161 as head on collision. In view of the facts and circumstances of the case I find that in the said accident two vehicles are involved i.e. Motorcycle and Trekker No. BR-20D-6161 and both the vehicles collided against each other. As such I find and hold that this is a case of head on collision and the deceased Shashi Ranjan Sinha had been died in a motor vehicle accident due to rash and negligent driving by himself and also due to rash and negligent driving by the driver of the offending Trekker No.BR-20D-6161. Thus I find and hold that the case of applicants is based on the principle of res ipsa lequoter as the deceased who was driving the motorcycle had contributed negligence to cause the said motor vehicle accident as such if any compensation is awarded in this case then owner/insurer of both the vehicles shall be equally liable to pay the same to the claimants of this case in the ratio of 50:50. I am fortified my view with the observation of the Hon'ble Jharkhand High Court reported in 2004(4) JLJR 670 . I am fortified my view with the observation of the Hon'ble Jharkhand High Court reported in 2004(4) JLJR 670 . Apart from that the A.W. 2 who was present at the time of accident with the deceased Shashi Ranjan Sinha has deposed in para 29 that at the time of accident his uncle was not wearing helmet and it is also the violation of the motor vehicles Act and its Rules that the deceased was driving the motorcycle without wearing helmet.” 7. Considering the same, this Court is not inclined to accept the argument on behalf of the appellants, so far contributory negligence is concerned and the finding recorded by learned Tribunal is affirmed so far as contributory negligence is concerned. 8. So far the amount of compensation paid under conventional head is concerned, it is apparent from para-10, the learned Tribunal has granted Rs. 5,000/-as funeral expenses and Rs. 5,000/-towards loss of estate and Rs. 10,000/-as loss of consortium, meaning thereby Rs. 20,000/-has been given under the conventional head instead of Rs. 70,000/-as held by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 (para-59.8). Thus, the amount of Rs. 50,000/-has been enhanced i.e. for funeral expenses from Rs. 5,000/-to Rs. 15,000/-, for loss of estate from Rs. 5,000/-to Rs. 15,000/-and loss of consortium from Rs. 10,000/-to Rs. 40,000/-. The learned Tribunal has granted Rs. 20,000/-under the conventional head and this Court has enhanced the same to Rs. 70,000/- as such, enhanced amount shall be payable to the claimants. 9. So far interest is concerned, in view of Section 171 of Motor Vehicles Act, the learned Tribunal is entitled to grant compensation from the date of filing of the application or from the date of admission. In the present case, it has been granted @ 6% from the date of admission of the application for 60 days and thereafter penal interest @ 8%. 10. Considering the interest part in totality, if it is computed to be 7.5% from the date of admission, the result will come to more or less same, as such, this Court is not interfering with the impugned judgment, so far interest is concerned. However, because of enhanced amount of Rs. 10. Considering the interest part in totality, if it is computed to be 7.5% from the date of admission, the result will come to more or less same, as such, this Court is not interfering with the impugned judgment, so far interest is concerned. However, because of enhanced amount of Rs. 50,000/-under the conventional head, the same shall be payable to the claimants with interest from the date of admission of the application i.e. 20.08.2011 till the date of actual payment @ 7.5% simple interest. 11. The appeal is accordingly allowed in the aforesaid manner.