Binod Singh vs Md. Javed
2021 Latest Caselaw 4225 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            Misc. Appeal No. 11 of 2014

1. Binod Singh
2. Rahul Kumar
3. Rohit Kumar                              ....   .... Appellants
                              Versus

1. Md. Javed
2. National Insurance Company Limited
3. Umar Farukh                          ....  .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. V.K. Sharma, Advocate For the Respondents : M/s Ganesh C. Jha & Shadab Eqbal, Advocates

C.A.V. ON 25.10.2021 PRONOUNCED ON 17 / 11 / 2021

The appellants-claimants have preferred the instant misc. appeal for enhancement of compensation as well as against finding of fact regarding contributory negligence of both the vehicles being Bolero bearing Regis- tration No. BR- 2D-1858 Piaggo Auto-Rickshaw bearing No. JH-01 H- 6652.

Claimant No.1-Binod Singh is the husband, Claimant no.1 and 2 the minor sons of the deceased Indu Devi. As per the claimant's case Indu Devi died at the age of 33 years on 21.7.07 in a Motor vehicle accident while she was travelling in the Bolero vehicle No.BR- 2D-1858 involving Piaggo Auto Rickshaw No. JH-01H-6652 regarding which Namkum Po- lice Station case no. 136/07 was lodged under section 279, 304 A IPC. The accident took place due to rash and negligent driving of the Bolero vehicle in which the deceased was travelling at the relevant time of acci- dent.

The claim case has been preferred against O.P. Nos. 1 and 2, who are owner and Insurer of Bolero, as well as O.P. No.3 the owner of the Auto Rickshaw.

In pursuance to the notice issued, O.P. No. 2 - National Insurance Co. Ltd. appeared and contested, whereas the case proceeded ex-parte against O.P. Nos. 1 and 3.

The following issues were framed on the basis of the pleadings of the parties:

I. Is the claim case maintainable in its present form?

II. Whether Indu Devi died due to injury caused in accident arising out of use of Bolero No. BR-02D-1858, which occurred on 21.07.2007? III. Whether accident was caused by rash and negligent driving of driver of Bolero vehicle?

IV. Whether the Bolero was under the insurance cover of O.P. No.2 Na-

tional Insurance Company at the time of accident? V. Are the claimants entitled to compensation if so to what extent?

On Issue Nos. II and III the learned Court below returned a finding of fact that the accident took place due to the contributory negligence of driver of the Bolero as well as Auto Rickshaw on the following grounds:-

Firstly, the FIR was lodged against the driver of Piaggo Auto Rick- shaw and charge-sheet was also submitted against the driver of Piaggo No. JH-01H-6652 namely Abdul Karim Quraisi under Sections 279 and 304-A of IPC.

Secondly, Binod Singh deposed in para 3 that on 21.7.2007 he was going to Tata by Bolero bearing Registration No. BR-02D-1858 along with his wife and other family members. At about 10.30 A.M. Irshad Alam by driving rashly and negligently dashed the Tempo as a result of which his wife Indu Devi died in the accident. Tribunal discarded the testimony of this witness because as an informant he had stated in the FIR that accident took place due to rash and negligent driving of the Auto Rickshaw. In view of the contradiction appearing in his statement the Court did not place reliance on his testimony. Thirdly, the tribunal held that it is settled principle that the liability of the driver of heavier vehicle is more than that of the smaller vehicle to save live . It was also the responsibility on the part of the driver of Bo- lero to take care so that accident could have been avoided by promptly applying the brake.

The finding of contributory negligence has been challenged mainly on the ground that it is beyond the pleading and evidence led on behalf of the parties and is based merely on the ground that FIR was registered and charge-sheet has been submitted against the driver of the Piaggo Auto Rickshaw. It is further submitted that FIR is not a substantive piece of evidence and eye witness account of a person who was admittedly travel- ling in the same vehicle which met with the accident cannot be discarded

merely on the ground that it was at variance with the finding of Investigat- ing Agency.

It is argued on behalf of the Insurance Company that Insurer and driv- er of the Piaggo Auto Rickshaw have not been made party and therefore the claim case is bad for non-joinder of necessary party. It is further ar- gued that the driver of the auto-rickshaw was not having a valid driving licence and therefore he was not deliberately made a party. It is undisputed on the basis of the pleadings and evidence on record that Indu Devi died in the motor vehicle accident on 21.7.07 involving Bolero No. BR-02D-1858 and Piaggo Auto Rickshaw No. JH-01H-6652. It is also undisputed that at the time of the accident that claimant no.1 Bi- nod Singh was travelling in the Bolero along with his wife at the time of accident. Matter for consideration is whether on the basis of materials on record a finding of contributory negligence warrants any interference by this Court in appeal?

After having considered the pleadings, evidence on record and the ri- val submissions advanced on behalf of both the sides, I am of the consi- dered view that finding of contributory negligence cannot be sustained for the following reasons:

Firstly, in a claim case although the strict rules of pleadings and evi- dence do not apply but the broad principles of civil adjudication can- not be given a complete go by. Here in the present case the claimant has come up with a definite case of accident being caused by the rash and negligent driving by the driver of Bolero No. BR-02D-1858 in which the deceased and Claimant No.1 were travelling at the relevant time of accident. Owners of neither vehicles have appeared to contest the claim. The defence of O.P. No. 2 - Insurance Company is of gen- eral denial about the accident but it has not come up with any specific defence that the accident took place due to rash and negligent driving of the Piaggo Auto Rickshaw. No issue of contributory negligence or negligence on the part of the Auto Rickshaw was framed. Except for the FIR and charge-sheet, there is no evidence that it was a case of contributory negligence.

Secondly, there are two eye witnesses of the accident CW 1- Binod Singh and CW 2-Gopal Singh, the name of both these witnesses appear in the list of witnesses cited in the charge-sheet. Both these

witnesses have consistently stated in their examination-in-chief that accident took place due to rash and negligent driving of Bolero No. BR-02D-1858. Testimony of CW 1 has been discarded by the Tribun- al because it found it to be in contradiction with his statement given in the FIR. Para 7 is the relevant paragraph of this witness wherein he has denied any remembrance of having given such any statement.

In order to draw contradiction it was incumbent that statement of this witness in the FIR should have been proved by IO of the case. FIR is not a substantive piece of evidence and in order to discard the testimony of an eyewitness it was necessary that the evidence of the IO who recorded the statement of the witness should have come on record. Under Section 145 of the Evidence Act a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

From the above provision it is abundantly clear that there should be two positive contradictory statements on record before the Court to hold that the statements are contradictory. Here although attention of CW-1 has been drawn to the Fardbeyan on the basis of which the FIR was regis- tered, but the I.O. who had recorded the statement of the informant Binod Singh has not been examined. Under the circumstance, I am of the view that the legal requirement to hold that testimony of CW-1 in contradiction to the FIR is not completed. The testimony of this witness has been fur- ther corroborated on the manner of accident by Gopal Singh who has been examined as CW-2 andCW-3 Lajwanti Devi who have also stated that they were also travelling in the Bolero vehicle which had dashed the Tempo.

On the basis of these eye witnesses accounts a reasonable inference can be drawn on preponderance probability that accident was caused due to rash and negligent driving of Bolero bearing Registration No. BR 02 D- 1858 on which the deceased was travelling at the relevant time. The acci- dent was caused by rash and negligent driving of Bolero bearing Registra-

tion No. BR 02 D-1858. Under the aforesaid facts and circumstances, Is- sue Nos. 2 and 3 are decided in favour of the claimant-appellant. On the quantum of compensation it is argued on behalf of the appel- lant that the deceased was earning Rs.3000/- from teaching and her ser- vices to the family has been quantified to Rs.3000/- thereby having a total monthly income of Rs.6000/- but the same has not been considered by the learned Tribunal. Further, the future prospect and compensation has also not been awarded as per the guidelines of the Hon'ble Apex Court under conventional heads. The award of interest has been allowed from the date of the award and not from the date of filing of the claim petition. Reliance has been placed on the following authorities:

i. (2020) 7 SCC 256 {Rajendra Singh and Ors. Vs. National Insurance Company};

ii. (2014) 4 SCC 511 {Meera Devi and Ors. Vs. Himanchal Pradesh Road Transport};

iii. (2010) 9 SCC 218 {Arun Kumar Agrawal. Vs. National Insurance Company} iv. (2017) 4 TAC 673 (SC) {National Insurance Company Ltd. Vs. Pranay Sethi and others};

v. (2008) 12 SCC 208 { U.P. State Road Transport Corporation}

As far as the monthly income of the deceased from teaching is con- cerned, in absence of any documentary evidence in support of it, I do not find any infirmity in the judgment of the learned Tribunal in not accepting the same. A bald statement of income by teaching without any supporting evidence regarding the qualification of the deceased or the institution in which she was imparting education will by itself be not sufficient proof of the income under this head. Under the circumstance, Rs.3000/- per month as pleaded by the claimant in the claim application can be accepted as the monthly income of the deceased. Following Lata Wadhwa {(2001) 8 SCC 197} the contribution of the deceased as a matured and skilled house wife to welfare and care of family and upbringing her children need to be factored into for assessing the annual income. As per the post-mortem re- port, the age of the deceased was of 35 years in view of the ratio laid down in Pranay Sethi case (supra) an addition of 40% should be the war- rant under the head of future prospects. Taking this, the annual income shall work out to 3000/- x 12 = 36,000/- + 40% of 36,000/- = Rs.14400/-

+ 36,000/- = 50,400/-. After deducting ¼ towards personal expenses her annual income shall work out to Rs.37,800/-. As per the ratio decided in Sarla Verma case a multiplier of 16 will apply to this age group, so the final compensation amount is Rs.37,800/- x 16 = 6,04,800/-. Apart from this, the claimant will also be entitled to 70,000/- under conventional head namely loss of estate, loss of consortium and funeral expenses. The final compensation shall, therefore, work out to Rs.6,74,800/-. In view of the ratio decided in Dharampal Case (supra), the interest at the rate of 7.5% from the date filing of the claim petition is allowed. The 50% of the compensation amount shall be paid to Claimant No. 1- Binod Singh and ¼ of the compensation amount will be paid to Clai- mant Nos. 2 and 3 by fixed deposit jointly with Claimant No. 1 till they attain majority or if have already attained majority, the payment be forth- with be made to both of them jointly with Claimant No. 1.

The payment shall be made within thirty days from this order by the Insurance Company to the Tribunal and the compensation amount shall be disbursed by the Tribunal to the claimants after proper identification. In the result the appeal is allowed.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 17th November, 2021 NAFR / AKT