(12)432Cl vs Smt. Reshma Tamang (Thing) & Ors
2023 Latest Caselaw 5658 Cal

                           IN THE HIGH COURT AT CALUTTA
                              Civil Appellate Jurisdiction
 29.8.2023
 SL No.28 & 29
Court No. 551
    Ali


                                  F.M.A.T. 695 of 2014
                  IA No.:CAN/1/2014 (Old No:CAN/5954/2014)
                         CAN/2/2014 (Old No:CAN/12158/2014)
                         CAN/3/2017(Old No:CAN/758/2017)

             The In-charge of Army Vehicle No. 10D184669 W
                            (12)432CL-1
                                 Versus
                   Smt. Reshma Tamang (Thing) & Ors
                                        With
                                  COT 58 of 2015
                                IA No.: CAN/1/2023
                                        CAN/2/2023

                       Reshma Tamang (Thing) & Ors.
                                Versus
                             Union of India

                   Mr. Jayanta Banerjee,
                   Mr. Rakib Hussain,
                   Mr. Sandip Bandyopadhyay
                         ...for the respondents in FMAT 695 of 2014

and appellant in COT 58 of 2015.

Mr. Indrajit Dasgupta, Ms. Puspita Bhowmick ....for the Union of India.

The instant appeal has been preferred against

the judgment and award dated 24th of February, 2011

passed by the learned Motor Accident Claims

Tribunal, 1st Court, Siliguri in M.A.C. Case No.

27(11) of 2011 under Section 166 of the Motor

Vehicles Act.

One Cross Objection was filed by the claimant

being COT 58 of 2015. Both the appeal and the Cross

Objection are taken up for hearing and for passing

the judgment.

The brief fact of the case is that the Cross

Objector-claimant was filed one application before the

learned tribunal under Section 166 of the M.V. Act for

getting compensation on the ground that the

predecessor of the deceased died in a road traffic

accident duly rash and negligent driving of the driver

of the offending vehicle belong to the Indian Army.

The in-charge of Army Vehicle contested the case

before the learned tribunal by filling written

statement. Evidences were adduced both oral and

documentary by the parties. After hearing the parties

and after perusing the evidences on record the

learned tribunal has awarded compensation

amounting ro Rs. 7,29,500/- in favour of the

claimants.

Being aggrieved by and dissatisfied with the

said order the In-charge of Army Vehicle has

preferred the instant appeal for setting aside the

impugned award; the claimant has preferred the

cross objection for enhancement of the award.

It is necessary to elaborate the factual matrix

of the accident. It was stated in the claim application

that on 6th of September, 2011 at about 3.00 P.M. the

victim was driving the vehicle bearing No. WB-

74F/9325 (Santro Car) and was coming from

Kurseong to Siliguri. On that way at Shalbari near

Chill Out Restaurant, the offending Army Vehicle

bearing No.10D184669W/(12)432CL-1 coming from

opposite direction caused the accident by recklessly

driving the offending vehicle and hitting victim vehicle

on the right hand side resulting in serious injuries to

the victim. After such accident the victim was shifted

to the Medica North Bengal Clinic and succumbed to

his injuries on the same day.

The learned advocate for the appellant

submits that the rash and negligent driving of the

driver of the Army Vehicle was not at all proved before

the learned tribunal. He submitted before this court

that the PW-1 was the widow of the deceased.

Consequently, she was not the eye witnesses but the

accident was proved by sole witness i.e. PW-2 to be

eye witnesses of the accident. He submitted that the

eye witnesses never stated about the manner of the

accident and he failed to elaborate whether the

offending vehicle was in high speed or not. He also

argued by showing the exhibit-A which is proved by

the DW-1 i.e. one Army personnel that at the time of

accident there was rain consequently the speed of the

Army Vehicle was not more than 22-30 KM per hour.

He again argued that the accident solely occurs due

to high speed rash and negligent driving of the

deceased who drive the Santro Car. He again argued

that from the postmortem report, the stomach of the

deceased contained the smell of Alcohol. On the

score, he argued that the rash and negligent driving

of the driver of the offending vehicle (Army Vehicle)

was not at all proved in this case. Thus, the

impugned award passed by the learned tribunal need

be set aside. He also argued on the observation of the

learned tribunal regarding the used of Alcohol in the

person of a Hilly reason is not at all convincing.

Learned advocate appearing on behalf of the

respondent/cross objector submitted before this

court that the evidence of PW-2 cannot be ruled out.

Moreover, a police case was registered on the basis of

the self-same accident and after thorough

investigation; police has submitted charge-sheet

against the driver of the Army Vehicle. Prima facie,

evidence of the charge-sheet cannot be ruled out at

this stage. The charge-sheet specifically stated rash

and negligent driving of the driver of the Army

Vehicle. At this juncture, the rash and negligent

driving has been sufficiently proved. Thus, the

impugned order cannot be set aside.

Heard the learned advocates perused the

materials on record. Learned advocate for the

claimant has cited a decision of Hon'ble Supreme

Court passed in Bimala Devi and Others V.

Himachal road Trans. Crpn. And Others. The

learned advocate for the claimant has cited paragraph

15 of the said judgment which is set out as follows:-

P-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.

It is the observation of the Hon'ble Supreme

Court that a claim case filed under Section 166 of the

M.V. Act should be proved on the touchstone of

preponderance of probability. In this case the strict

proof required in criminal cases which would be the

principle of proof of beyond reasonable doubt, cannot

be applicable.

In this particular case, there are two ocular

witnesses from either side. Claimant produced PW-2

to be an eye witness who was sitting at the time of

accident at Chill Out Restaurant which is the vicinity

to the spot of accident. On the other hand, the

appellant i.e. the in-charge of the Army Vehicle has

produced a co-driver of the so-called offending vehicle

(Army Vehicle). The DW-2 has produced a document

which the document is of findings of a court inquiry

initiated and computed by the Army Authority. The

document was marked as exhibit-A by the learned

tribunal. The postmortem report of the deceased was

also placed in the paper book. After the dissection of

stomach of the deceased the smell of Alcohol is found.

Let me considers whether the cases of the

either parties is reliable. The PW-2 stated that the

accident happened due to rash and negligent driving

of the driver of the offending vehicle i.e. the Army

Vehicle. It is true that the PW-2 has felt to account

whether the Army Vehicle was running in high speed.

It further appears that the PW-2 has felt to elaborate

that whether there were any other person within the

Santro Car. But the police paper i.e. FIR and charge-

sheet disclosed that alongwith the deceased there are

one person inside the Santro Car namely, Sarjib

Chettri who sustained injuries in this accident. The

DW-1 submitted that the Santro Car was running in

a high speed, the court inquiry of the Army (exhibit-A)

disclosed that the manner of the accident that there

was rain for which the Army Vehicle was running

slowly within 20-30 KM per hour and a cow was

sitting over the road at the left side for which to save

the cow the Army Vehicle appear in the middle of the

road. At the time, the Santro Vehicle which was

coming in a high speed dashed the Army Vehicle.

In considering the two versions of the two

persons i.e. DW-1 and PW-2. It appears to me that

the PW-2 only stated about a factum of accident. The

nature and manner of accident was not specifically

stated by PW-2. He also failed to elaborate the

presence of co-passenger in the Santro Car; If he had

been present in the spot of accident, he must have

noticed how many persons are injured in such

accident. It is the fact that local persons came

thereby just after the accident and took the two

injured persons to the hospital. FIR was also stated

the fact but surprisingly PW-2 failed to state such

fact. Considering the same it appears to me that the

evidence of DW-1 is more convincing regarding the

manner of accident. However, the involvement of the

Army Vehicle and the Santro Car is no doubt and the

court inquiry of the military personnel is sufficient to

demonstrate the fact that the Army Vehicle had to

proceed to the middle of the road due to the presence

of the cow over the road. The police papers i.e. the

charge-sheet also disclosed the responsibility and

negligence of the driver of the Army Vehicle. Now the

presence of Alcohol is found in the stomach of the

deceased. Learned tribunal is of opinion that in the

hilly reason the persons are prone to have to Alcohol

due to such cold weather. However, the fact of

drinking Alcohol during the driving of the deceased is

sufficiently proved. At this juncture, I find that the

accident happened due to the negligence of both the

drivers of the offending vehicle as well as the

deceased. Considering the fact that there were rain

and the speed of the Army Vehicle was not more than

20-30 KM per hour. But also it is the fact that the

Army Vehicle was proceeded to the middle of the road

at the time of accident for which the Santro Vehicle

dashed at the right side and the driver i.e. the

deceased died due to such accident. The driver of the

Army Vehicle was negligent because, he did not stop

the vehicle after observing a Cow is sitting over the

road and negligently proceeded to the right side of the

road, instead he had on better view of approaching

Santro Car. In my view, the both the vehicles are

jointly negligible for the said accident.

In considering the percentage of negligence in

this case, in my view, the driver of the Military

Vehicle is responsible for 60% and driver of the

Santro Car i.e. the deceased himself was responsible

for 40% for the same accident.

In considering the grounds in the cross appeal

it is the submission of the learned advocate for the

claimants that the income of the deceased was stated

to be Rs.13,232/-per month for the occupation of

tour and travel business to substantiate such plea

one officer of Income Tax Department, Siliguri

appeared and filed of Income Tax Return receiving

Register dated 14.07.2011. The Register was marked

as Exhibit-11. Learned advocate for the claimants

submitted before this court that the learned tribunal

has passed the impugned award ignoring the value of

Exhibit-11 and considered the income of the deceased

Rs.6,000/- per month without any valid proof. The

income of the deceased was calculated by the learned

tribunal on the basis of assumption and presumption

in this particular case. The Exhibit-11 is the glaring

evidence on the basis of which the income of the

deceased can easily be calculated to be Rs.

1,58,790/- per annum.

I have perused the Exhibit-11 placed in the

paper book. It appears to me that the Exhibit-11 is

the return receiving Register of the ITO Ward- No.3(1)

Siliguri. The return shows that the deceased has

submitted the return on 14.7.2011 stating his annual

income to be Rs.1,58,790/-. The return was

submitted prior to the two months of the accident.

The return was submitted by the deceased himself.

Thus, in this juncture, the probative value of the

Exhibit-11 cannot be denied. The learned tribunal is

of view that the business of tour and travel of a

particular season may not run in every months very

smoothly and there may have some dry season but

the instant statement is for the annual income of the

deceased; so the good season as well as dull season

cannot come into play. Thus, in my view, the

observation of the learned tribunal regarding the

average monthly income of the deceased Rs.6,000/-

per month is erroneous. The learned tribunal should

have considered the Income Tax statement filed by

the deceased himself prior to the accident. The

deceased would have no interest to file the Income

Tax and at the time when there were no chance of

getting any money in lieu of showing such return.

Thus, in this case, I think it necessary that the

income of the deceased should be calculated annually

Rs. 1,58,000/-.

The age of the deceased was stated in the

postmortem report to be 42 years and the age of the

deceased according to the Voter Identity Card the age

of the deceased 40 years at the time of accident.

Learned advocate for the claimant has cited some

decisions passed in Sri Paritosh Saha & Ors. Vs.

The Oriental Insurance Co. Ltd. and Anr also the

judgment of a Co-ordinate Bench of this Court passed

in FMAT 1197 of 2016. This court also in several

occasions adopted the same view passed by the

division Bench of this court on the earlier occasion. It

is the view of this court that the Voter Identity Card

of a person was prepared adopting a proper

procedure by the government Officers. The age of the

person was calculated either by self-assessment or by

view of some document at the time of initiation of the

proceeding of preparation of Voter Identity Card.

There is no chance to manipulate such date as it is

general rule that a person in the Voter Identity Card

shall have stated true date of birth. On the other

hand, when a dead body appears before the autopsy

Doctors, the Doctors usually and mechanically stated

the name of age of the deceased as they are placed in

the record of the Hospital. At the time of the age of

the deceased was calculated approximately. So in this

case, it is better to observe finding regarding the age

of the deceased on the basis of Voter Identity Card.

According to the Voter Identity Card, the age of the

deceased was 40 years. So in this case, the applicable

multiplier would be 15. Considering the dependency

of this case it appears that there are four claimants at

the time of filing the claim application. The claimant

No. 4 is the father of the deceased, the father is

appeared to be in class-II legal heirs of the deceased

and claimant Nos. 1, 2 & 3 are the class I according

to Section 8 of the Hindu Succession Act. Thus, in my

view, the three claimants are there and deduction

towards personal expenses of the deceased would be

1/3. Considering the age of the deceased at the time

of accident and also considering the fact that the

deceased self-employed, according to the view of the

Hon'ble Supreme Court passed in Pranay Sethi, the

claimants are entitled to the future prospects which

would be added to be 25% of his establish income.

The present claimants are the wife, son and

daughter of the deceased so they are entitled to the

general damages to the tune of Rs.70,000/-.

Thus, the just and proper compensation of

this case, it is necessary to recast as follows:-

Calculation of compensation

1. Yearly Income be assessed as..........Rs.1,58,000/-

2. Add: Future prospect @ 25%..............Rs.39,500/-

Rs. 1,97,500/-

3. 1/3rd deduction on account of personal expenses.................... Rs.65,833/-

Rs. 1,31,667/-

4. Multiplier 15 ( Rs.1,31,667/-X 15).................................Rs.19,74,990/-

6. Add: General Damages......................Rs.40,000/-

Loss of Estate...........................Rs.15,000/-

Loss of Funeral Expenses...........Rs.15,000/-

Total...Rs. 20,44,990/-

So after calculation the total assessment

comes to Rs. 20,44,990/-the in-charge of the Army

Vehicle is responsible for 60% of such compensation

so the 60% of the said amount comes to Rs.

12,26,994/- it appears that at the time of filing the

instant appeal the appellant the in-charge of Army

Vehicle has deposited the statutory amount of

Rs.25,000/- vide OD Challan No. 1514 OD dated

22nd September of 2015 the said amount must have

carried some interest. The appellant in-charge, of

Army Vehicle is directed to deposit the rest amount

of Rs.12,01,994/- alongwith interest @ 6% per

annum from the date of filing of the claim

application i.e. from 5th November, 2011 within 24th

of November, 2023 vide three equal account payee

cheques in the name of the claimants with the office

of the learned Registrar General, High Court,

Calcutta. The cheque in the name of the minor

claimant should have received by claimant No. 1

being her natural guardian mother. The claimant

No. 1 is directed to deposit the said cheque in a

Nationalized Bank in a Fixed Deposit Scheme in the

name of the minor so the amount may be utilized

after attaining her majority. On such deposit the

claimants are at liberty to receive the same from the

office of learned Registrar General, High Court,

Calcutta on usual terms and conditions.

The instant FMAT 695 of 2014 alongwith

COT 58 of 2015 are disposed of.

All connected applications, if any, stand

disposed of.

Interim orders, if any, stand vacated.

Parties to act upon the server copy and

urgent certified copy of this order be provided on

usual terms and conditions.

(Subhendu Samanta, J.)