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2023 DIGILAW 2172 (ALL)

Sushma Devi Shukla v. Sharda Prasad

2023-09-19

SARAL SRIVASTAVA

body2023
JUDGMENT : Saral Srivastava, J. Heard learned counsel for the appellants and learned counsel for the respondents. 2. The claim petition has been instituted by claimants/appellants praying for compensation for the death of one Shubhash Chandra Shukla who was driving a Maruti Car No. MH 002L/3533 and met with an accident with Tata 207 DI truck No. UP70 Y/9264. 3. Challenging the award, learned counsel for the appellants has contended that the Tribunal has erred in law in holding 50% negligence of the deceased in the accident. It is submitted that the claimants/appellants proved the accident by producing PW-1 Shushma Devi and PW-2 Sri Ram Ji Shukla who were eye-witnesses of the accident and deposed before the Tribunal that the accident was the result of the rash and negligent driving of the driver of truck No. UP70 Y/9264, therefore, the Tribunal has erred in law in holding the negligence of the deceased on the basis of the site plan of the accident which was not proved in accordance with the law. It is further contended that in the absence of any evidence in rebuttal to the testimony of PW-1 and PW-2, the Tribunal has erred in law in placing reliance upon the site plan of the accident to conclude 50% negligence of the deceased in the accident. In support of the said contention, learned counsel for the appellants has placed reliance upon the judgment of the Apex Court in the cases of Jiju Kuruvila and others v. Kunjujamma Mohan and others, (2013) 9 SCC 166 , Kumari Kiran through her father Harinarayan v. Sajjan Singh and others, 2014 (4) TAC 684 (SC) and National Insurance Company Ltd. v. Chamundeswari and others, 2021 (0) SC 533. 4. He further contends that no amount towards future prospect has been awarded to the claimants/appellants whereas they are entitled to 40% towards future prospect in view of the judgment of Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and others, 2017 (16) SCC 680 . It is further submitted that there were six dependents upon the deceased, therefore, considering the judgment of the Apex Court in the case of Sarla Verma and others v. Delhi Transport Corporation and others, 2009 (6) SCC 121 , Tribunal should have deducted 1/4th towards personal expenses of the deceased instead of 1/3rd. 5. It is further submitted that there were six dependents upon the deceased, therefore, considering the judgment of the Apex Court in the case of Sarla Verma and others v. Delhi Transport Corporation and others, 2009 (6) SCC 121 , Tribunal should have deducted 1/4th towards personal expenses of the deceased instead of 1/3rd. 5. Per contra, learned counsel for the respondent insurance company would contend that in the instant case, the site plan was filed by the claimants/appellants, and once they relied upon the site plan to prove the accident, they cannot resile and say that the site plan could not be read in evidence to determine the negligence of the deceased in the accident. It is further submitted that the law is well-settled that if a party brings a document on record, then that document has to be read in evidence as a whole and the party who brings the document on record, cannot take a plea that a part of document which supports his case can be read but the other part adverse to him may be ignored. Accordingly, it is submitted that the Tribunal has not committed any illegality in relying upon the site plan of the accident to conclude 50% negligence of the deceased in the accident. In support of his case, he has placed reliance upon the judgment of Apex Court in the case of Oriental Insurance Company Ltd. v. Premlata Shukla and others, 2007 AIR SCW 3591. 6. He has further contended that the Tribunal has erred in law in applying the multiplier of 16 whereas considering the age of the deceased, the Tribunal should have applied the multiplier of 15 to compute the compensation. 7. I have heard learned counsel for the parties and perused the record. 8. The deceased was driving the Maruti Car No. MH 002L/3533 which met with the accident with truck No. UP70 Y/9264. PW-1 Shushma Shukla and PW-2 Sri Ram Ji Shukla were eye-witnesses of the accident and deposed before the Tribunal that the accident had taken place due to rash and negligent driving of the driver of truck NoUP70 Y/9264. The insurance company did not produce any evidence in rebuttal to the testimony of PW-1 and PW-2. 9. PW-1 Shushma Shukla and PW-2 Sri Ram Ji Shukla were eye-witnesses of the accident and deposed before the Tribunal that the accident had taken place due to rash and negligent driving of the driver of truck NoUP70 Y/9264. The insurance company did not produce any evidence in rebuttal to the testimony of PW-1 and PW-2. 9. It is pertinent to note that the accident was alleged to have taken place on 22.6.2005 whereas the site plan was prepared after 2 days from the date of the accident i.e. on 24.6.2005. Though the site plan did contain signature, the identity of the person who prepared the site plan had not been disclosed. The site plan was not proved in accordance with the law. The correctness of the site plan cannot be determined in the absence of the testimony of the person who prepared it. In other words, the site plan cannot be relied unless the person who prepared it appears before the Tribunal and deposes that it was correctly prepared, and thereafter an opportunity is provided to the claimant to rebut the testimony of the person who prepared it to enable the claimant to prove that the site plan is not prepared correctly. 10. The submission of learned counsel for the respondent that once the site plan had been filed by the appellants, they cannot urge that the site plan proved the accident, but it could not be relied upon to adjudicate negligence of the deceased in the accident on the strength of the judgment of the Apex Court in the case of Premlata Shukla (supra) does not stand to merit in the instant case for the following reason. 11. There is no dispute to the proposition that once a document has been filed by a party and relied upon by it, the said document has to be read as a whole for the purpose of evidence, and the party who produces the same cannot insist that only that part of the document which benefits him may be read and other part of the document which is against him may be ignored. 12. 12. However, in the instant case, it is not only the site plan which had been filed by the appellants, but the appellants also produced eye-witnesses of the accident PW-1 and PW-2 who categorically deposed that the accident was the result of the negligence of the driver of the truck. The appellants discharged their burden by producing PW-1 and PW-2 to prove the negligence of the driver of the truck in the accident, and in such an event, the burden was shifted upon the insurance company to prove by leading the cogent evidence on record that the deceased was also negligent in the accident which the insurance company in the instant case did not discharge. 13. At this stage, it would be apt to refer to the judgments relied upon by learned counsel for the appellants in the case of Jiju Kuruvila (supra) in which it has been held that the site plan does not give substantial proof in respect of the rash and negligent driving of the drivers involved in the vehicle. Paragraph No. 24 of the judgment is reproduced below: ''24. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.'' 14. In the case of Kumari Kiran (supra), the Apex Court found that there was no evidence on record in respect of the negligence of the deceased in the accident, consequently, it set aside the judgment of the High Court. Paragraph No. 13 of the judgment is reproduced below: ''13. In the case of Kumari Kiran (supra), the Apex Court found that there was no evidence on record in respect of the negligence of the deceased in the accident, consequently, it set aside the judgment of the High Court. Paragraph No. 13 of the judgment is reproduced below: ''13. With regard to the apportionment of contributory negligence at 25% on the part of the appellant-father and 75% on the driver of the offending tractor as determined by the High Court, we refer to the judgment of this Court in Juju Kuruvila and others v. Kunjujamma Mohan and others, (2013)9 SCC 166 : 2013 (3) TAC 369, as it is applicable to facts of the case on hand. In the above case, Joy Kuruvila (the deceased) had a head-on collision with a bus approaching from the opposite side. Joy Kuruvila sustained serious injuries and died on the way to the hospital. The Tribunal found that the accident occurred due to the rash and negligent driving of the bus driver. It apportioned the contributory negligence between the driver and the deceased in the ratio of 75:25%. On the basis of the pleadings and evidence on record, in the above said case, this Court has held thus on the negligence of the driver of the bus : The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. The post-mortem report, Ext. A-5 shows the condition of the deceased at the time of death. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. The post-mortem report, Ext. A-5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal and his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext.A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of the accident. The mere suspicion based on Ext. B-2 ''scene mahazar'' and Ext. A-5 post-mortem report cannot take the place of evidence, particularly, when the direct evidence like PW3 (independent eye-witness), Ext. B-1 (FI statement) are on record.'' The observations made by this Court in the case of Juju Kuruvila (supra) surely apply to the fact situation on hand. Upon thorough examination of the facts and legal evidence on record in the present case, it cannot be said that the appellant-father was rash and negligent just on the assumption made by the Tribunal that the collision occurred in the middle of the road since the two vehicles were approaching from opposite directions of the road. However, the only aspect of the case on hand that we can reasonably assume is that the appellant-father would have taken sufficient caution while riding the motorcycle since he was travelling with his two minor children (appellant-minors). Further, upon examining the evidence produced on record, there is no proof showing negligence on the part of the appellant-father. Thus in our view, the contributory negligence apportioned by the High Court at 25% on the appellant-father and 75% on the driver of the offending tractor is erroneous keeping in view the legal principles laid down by this Court on this aspect in the above referred case. Thus, we are of the firm conclusion that the negligence is wholly on the part of the driver of the offending tractor since he was driving the heavier vehicle. Therefore, we set aside the 25% contributory negligence on the part of the appellant-father as apportioned by the High Court.'' 15. Thus, we are of the firm conclusion that the negligence is wholly on the part of the driver of the offending tractor since he was driving the heavier vehicle. Therefore, we set aside the 25% contributory negligence on the part of the appellant-father as apportioned by the High Court.'' 15. The Apex Court in the case of Chamundeswari (supra) also considered the case of Premlata Shukla (supra) relied upon by learned counsel for the respondent and held that if any evidence contrary to the contents of the First Information Report has been filed or produced before the tribunal, the evidence which is recorded before the Tribunal has to be given weightage and precedence over the contents of First Information Report. Paragraph No. 8 of the judgment is reproduced below: ''8. It is clear from the evidence on record of PW-1 as well as PW-3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW-1 and PW-3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW-1 herself travelled in the very car and PW-3, who has given statement before the police, was examined as eye-witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the judgment, relied on by the appellant's counsel in the case of Oriental Insurance Company Limited v. Premlata Shukla and others (supra), this Court has held that proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. In the judgment in the case of Nishan Singh and others v. Oriental Insurance Company Limited, (supra), this Court has held, on facts, that the car of the appellant therein, which crashed into truck which was proceeding in front of the same, was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations, framed under Motor Vehicles Act, 1988. Whether driver of the vehicle was negligent or not, there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant, would not render any assistance in support of his case.'' 16. Given the law enunciated by the Apex Court in the judgments relied upon by learned counsel for the appellants, this Court finds substance in the submission of learned counsel for the appellants that the Tribunal has erred in law in relying upon the site plan of the accident to conclude that there was negligence of the deceased in the accident. Accordingly, the finding of the Tribunal holding 50% negligence of the deceased in the accident and reducing the compensation by 50% for the negligence of the deceased is set aside. Consequently, it is held that the accident was the result of rash and negligent driving of the driver of the truck No. UP70 Y/9264. 17. The submission of learned counsel for the claimants/appellants in respect of future prospect has got force in view of the judgment of Apex Court in the case of Pranay Sethi (supra) and thus, following the aforesaid judgement of Apex Court and considering the age of the deceased, claimants/appellants are entitled to 40% towards future prospect. 18. The submission of learned counsel for the claimants/appellants with regard to the deduction of 1/4th towards personal expenses of the deceased because of the judgement of Apex Court in the case of Sarla Verma (supra) has substance. Thus, considering the dependents upon the deceased, it is provided that 1/4th should be deducted towards the personal expenses of the deceased instead of 1/3rd from the income of the deceased for computation of compensation. 19. Thus, considering the dependents upon the deceased, it is provided that 1/4th should be deducted towards the personal expenses of the deceased instead of 1/3rd from the income of the deceased for computation of compensation. 19. The submission of learned counsel for the respondents in respect of the wrong application of multiplier has also got substance in view of the judgment of Apex Court in the case of Sarla Verma (supra). Thus, it is provided that compensation should be computed by applying the multiplier of 15 instead of 16. 20. It is also provided that the enhanced amount of compensation shall carry 6% simple interest from the date of institution of the claim petition till the date of its payment. 21. For the reasons given above, the appeal is partly allowed and the award of the Tribunal is modified to the extent indicated above. The insurance company is directed to pay the enhanced amount of compensation to the claimants/appellants within three months from the date of production of the certified copy of this order. There shall be no order as to cost.