Jharkhand High Court
Sani Devi Wife Of Late Ranjeet ... vs Purushottam Singh Son Of Anirudh ... on 28 June, 2022
1
Miscellaneous Appeal No. 548 of 2016
[arising out of Award dated 29th August, 2016
passed by the Principal District Judge, Gumla
in M.A.C. Case No.48 of 2010]
----
1. Sani Devi wife of Late Ranjeet Nagesia
2. Ajay Nagesia
3. Dhanudut Nagesia
4. Bhagat Nagesia
5. Budhram Nagesia
6. Jitu Nagesia
Sl. No.2 to 6, all sons of Late Ranjeet Nagesia
All are residents of Village Sijang, Upper Ghat, P.O. Pojenga, P.S.
Palkot, District Gumla.
... ... Appellants
-versus-
1. Purushottam Singh son of Anirudh Singh, resident of Village
Kulukera, Muraitola, P.O. & P.S. Palkot, District Gumla.
2. Dashrath Singh son of Sri Krishna Singh, resident Sukurda, P.O.
& P.S. Basia, District Gumla.
3. The Manager, New India Assurance Company, Branch I, Sahid
Chowk, Ranchi, P.O. & P.S. Kotwali, District Ranchi.
... ... Respondents
----
For the Appellant: Mr. Anurag Kashyap, Advocate
For the Respondents: Mr. Debesh Chandra Ghosh, Advocate
Mr. Baleshwar Yadav, Advocate
----
PRESENT
HON'BLE MR. JUSTICE ANANDA SEN
----
JUDGMENT
RESERVED ON 08.06.2022 PRONOUNCED ON 28.06.2022
This appeal under Section 173 of the Motor Vehicles Act is at the
instance of the claimants, challenging the award dated 29th day of
August, 2016 passed by the Principal District Judge, Gumla in M.A.C.
Case No. 48 of 2010, whereby the claim application of the claimants
was dismissed, holding that the claimants have failed to establish that
the driver of the vehicle was driving the vehicle rashly and negligently.
2. On 20.05.2008, the informant along with his deceased father
Ranjeet Nagesia and other villagers had gone to attend marriage
ceremony and when they were returning home by a Savari Vehicle No.
JH 07B 3393 while reaching near the Amberadih, P.S. Palkot, then due
to rash and negligent driving, the offending vehicle dashed with a Mango
tree and several passengers were injured. On the basis of the fardbeyan
of Ajay Nagesia, a case under Sections 279, 337, 338, 304(A) of the
Indian Penal Code was instituted against the driver of Savari Vehicle
No. JH 07B 3393.
3. It is the case of the claimants that the deceased was aged about
50 years and was a cultivator, having a monthly income of Rs.3,000/-
per month. The deceased had left behind his wife and five children, who
were dependent upon the deceased for which the claimants claimed
compensation.
4. Opposite parties appeared and filed their written statement/show
cause. The Insurance Company admitted the factum of validity of
insurance. It was also the case of the opposite parties - owner and
driver of the vehicle, that the vehicle was being driven by the driver, who
had a valid driving licence on the date of accident. The Insurance
Company, formally opposed the claim application and has also prayed
that the insurance policy should be brought on record in support of the
claim and the document of validity of the driving licence be produced.
They also had taken a ground that the tax token, fitness certificate, route
permit and registration document should also be brought on record.
5. The Tribunal, on the basis of the pleadings of the parties, framed
the following issues:-
1. Whether the claimants are entitled for
compensation?
2. Whether the claimants are legal heirs of the
deceased?
3. Whether the owner of the vehicle possesses valid
Route Permit to ply the vehicle?
4. Are the owner and driver violated the terms and
condition of the policy?
5. Whether the Insurer is liable for payment of Award?
6. Whether the driver and owner are jointly or
severally liable for payment of Award?
7. Whether the claim petition, as framed, is
maintainable in the eyes of law and if maintainable,
whether the claimants are entitled for any relief or
reliefs?
6. Three witnesses were examined on behalf of the claimants, who
are wife of the deceased, son of the deceased and an occupant of the
vehicle. Claimants exhibited the following documents:-
Exhibit 1 :- C.C. of F.I.R.
Exhibit 2 :- C.C. of Charge sheet
Exhibit 3:- Photo copy of post-mortem report.
Exhibit 4:- Heirship Certificate
7. Opposite Parties, i.e., owner and driver of the vehicle produced
the driving licence of the driver of the offending vehicle and the
insurance policy. The Tribunal clubbed all the aforesaid seven issues
and heard the arguments of the parties. After discussing the evidence
led by the parties, the Tribunal held that there was no road permit of the
vehicle as the owner and driver of the vehicle failed to produce the
same. Issue No.2 was in respect of heirship of the deceased. The
Tribunal held that the claimants are the legal heirs of the deceased. The
Tribunal further held that though the vehicle was duly insured on the
date of accident, yet there was violation of the terms and conditions of
the policy as there was no valid permit. Tribunal further held that though
there was breach, yet Insurance Company is liable to pay the amount of
compensation and realize the same from the owner of the vehicle.
Tribunal, lastly, went on to answer the question as to whether the
claimants are entitled for any compensation on the basis of the evidence
on record. The Tribunal, after discussing the evidence, held that since
the witnesses have stated that the offending vehicle was moving slowly
and due to fault in the vehicle it dashed against a mango tree, resulting
in the accident and death of the deceased, the claimants are not entitled
to receive any compensation as the rashness and negligence on the
part of the driver of the offending vehicle was not proved.
8. Challenging the aforesaid finding, this appeal has been filed.
9. Counsel for the claimants submits that admittedly accident
occurred due to use of motor vehicle and that being so, in terms of
Sections 165 and 166 of the Motor Vehicles Act, claimants are entitled
to be compensated. He submits that the Tribunal has wrongly
interpreted the evidence while coming to the conclusion that there was
no rashness and negligence. The finding that there was mechanical fault
in the vehicle is beyond the pleadings and evidence as there is nothing
on record to suggest that there was some mechanical fault in the
vehicle. It is his contention that when the accident had taken place, the
claimants, who are, admittedly, the heirs of the deceased are entitled for
compensation in terms of the Motor Vehicles Act and dismissal of the
claim case is erroneous.
10. Counsel appearing on behalf of the Insurance Company submits
that the witnesses have categorically stated that the vehicle was being
driven in a very slow speed, thus, it can be concluded that there was no
rashness and negligence on the part of the driver. As per him, witnesses
have also stated that there was no rashness or negligence on the part of
the driver and since grant of compensation depends on rashness and
negligence, which in this case has not been proved, the claimants are
not entitled for any compensation. He relies on the judgment in the case
of New India Assurance Company Limited versus Smt. Rekha Devi
reported in 2006 (3) JLJR 155. It is his contention that in absence of
proof of rashness and negligence on the part of the driver of the vehicle,
Tribunal has rightly dismissed the claim application.
11. Considering the submission of the parties and materials on
record, following question needs to be decided in this case :-
(i) Whether there was any element of rashness
and negligence involved in the accident in
which the deceased died and six others
were injured?
(ii) Whether the finding of the Tribunal that the
accident occurred due to some mechanical
fault is based on any material or not?
(iii) Whether in absence of any rashness or
negligence in a case of motor vehicle
accident, claimants are entitled for any
compensation?
12. First two issues are being taken up together. The Tribunal has
held that since there was no element of rashness and negligence as
there is a consistent evidence that the vehicle was being driven a very
slow speed and there was a mechanical fault also, claimants are not
entitled for any compensation. To assess this issue, I have gone through
the evidence led by the parties and the Lower Court Record. It is
necessary to note that as to how the accident had taken place. In the
claim application it has been mentioned in column 27 that the deceased
along with others was travelling in a 'Savari' vehicle bearing JH 07B
3393, after attending a marriage alongwith the bridegroom party. The
driver was driving the vehicle in a rash and negligent manner and he
dashed the vehicle against a mango tree. As a result of the said
accident, deceased died on the spot and other several occupants
sustained several injuries, who were being treated at Sadar Hospital,
Gumla. First Information Report was marked as Exhibit 1. The author of
the First Information Report is Ajay Nagesia, who stated that deceased
and others were passengers in a vehicle bearing JH 07B 3393. The
vehicle was being driven in a rash and negligent manner and at a high
speed, when the occupants had also asked the driver to drive the
vehicle slowly. It is stated in the First Information Report that the vehicle
thereafter dashed a mango tree, resulting in death of deceased and
other occupants were undergoing treatment at Sadar Hospital. Exhibit 2
is the chargesheet No.31/08, arising out of Palkot Police Station Case
No.36 of 2008, under Sections 279, 337, 338 and 304A of the Indian
Penal Code. Police, after investigation, submitted chargesheet against
the driver of the offending vehicle, finding that there are sufficient
materials against the driver Dashrath Singh to proceed against him
under Sections 279, 337, 338 and 304A of the Indian Penal Code.
13. Aforesaid two documentary evidence clearly suggest that there
was an element of rashness and negligence in driving the vehicle, which
resulted in accident. From these two documents, there is nothing to
suggest that there was mechanical fault in the vehicle, which caused the
said accident. Now, let me discuss the oral evidence on this issue.
P.W.1 is Sani Devi is the wife of the deceased and claimant No.1 in
claim application. Admittedly, she is not an eye witness to the
occurrence. She stated about the income of the deceased. She denied
the suggestion that there was any fault on the part of the driver in driving
the vehicle, but, she stated that she does not know whether the driver
was driving the vehicle properly or not. Thus, her evidence is not
material to decide this issue. P.W.2 Jageshwar Nagesia is an eye
witness as he was an occupant of the said vehicle at the time of the
accident. He stated that while returning from a marriage party, vehicle
met with an accident, resulting in death of the deceased at the spot. He
stated that he also sustained injury on his shoulder and back and was
treated in Sadar Hospital, Gumla. In cross examination, in paragraph 1,
he made a statement that the driver of the vehicle was not driving the
vehicle rashly or negligently, but in paragraphs 7 and 8 he stated that
four or five persons including him sustained injury. P.W.3 Ajay Nagesia,
who was also the occupant of the said vehicle, stated that the accident
had occurred in which Ranjit Nagesia died. He also admitted that he
also sustained injury in his head and left leg and was treated at Primary
Health Centre, Palkot. In his cross examination, at paragraph 1, he
stated that the vehicle was being driven slowly. In paragraph 7 of the
cross-examination, he stated that the vehicle was being driven slowly
and there was some defect in the vehicle, which resulted in accident.
These are the only materials on record. Now, the question which falls for
consideration is whether these materials are enough to decide whether
there was any element of rashness or negligence on the part of the
driver of the vehicle.
14. Section 165 of the Motor Vehicles Act provides for establishment
of Claims Tribunal. It provides that a Claims Tribunal will be set up in
such areas vide notification for adjudicating claims for compensation in
respect of accidents involving death or bodily injury to persons arising
out of use of motor vehicles, or damages to property of any third party
so arising. Section 166 of the Motor Vehicles Act deals with an
application of compensation, which provides that an application for
compensation arising out of an accident of the nature specified in Sub
Section (1) of Section 165 of the Motor Vehicles Act shall be made by
the category of persons mentioned therein. In the aforesaid two
provisions, there is no whisper about wrongful act, neglect or fault of the
owner or any person. This means that element of rashness or
negligence is not there in the aforesaid two provisions of the Motor
Vehicles Act. There is another provision of the Motor Vehicles Act,
which provides for grant of compensation, i.e., Section 163A of the
Motor Vehicles Act. Aforesaid provision also provides that the owner of
the motor vehicle or the insurer is liable to pay compensation to the
claimants, as the case may be in case of permanent disablement due to
accident arising out of use of the motor vehicle. In the aforesaid case,
compensation would be as per second schedule of the Act. Thus, both,
Section 165(1) and Section 163(A)(1) of the Motor Vehicle Act provides
that the accident should arise out of use of the motor vehicle. The
applicability of negligence factor is dealt with in Section 163(A)(2) of the
Motor Vehicles Act, which provides that if a claim application is made
under Section 163(A)(1) of the Motor Vehicles Act, the claimants are not
required to plead or establish that the death or permanent disablement,
in respect of which the claim has been made, was due to any wrongful
act or neglect or default of the owner of the vehicle or vehicles
concerned or any other persons. This special provision is not there in
Section 165 of the Motor Vehicles Act. If both these provisions, i.e.,
Section 165 and 163(A) of the Motor Vehicles Act are read, then it can
be concluded that if an application is filed under Section 163(A) of the
Motor Vehicles Act, claimants are not required to plead or prove
wrongful act or negligence or default of either the owner or driver or
anyone else. This means that even if there is no negligence, default or
rash act or even if rashness, negligence or wrongful act is not proved,
claimants are entitled to receive compensation. On the other hand, if an
application is filed under Section 165 of the Motor Vehicles Act,
rashness and negligence needs to be proved. The Hon'ble Supreme
Court in the case of Oriental Insurance Co. Ltd. versus Premlata
Shukla & Another reported in (2007) 13 SCC 476 has held that proof of
rashness and negligence on the part of the driver of the vehicle is sine
qua non for an application under Section 166 of the Motor Vehicles Act.
15. This application is under Section 166 of the Motor Vehicles Act.
The Tribunal has held that the claimants have failed to prove rashness
and negligence and there was a mechanical fault. So far as mechanical
fault is concerned, I find that save and except a bald statement by one
injured victim, i.e., A.W.3 to the effect that there was some mechanical
fault, there is no material on record to suggest any mechanical fault.
This casual statement should not have been the ground for the Tribunal
to conclude that there was a mechanical fault. What was the nature of
mechanical fault has also not been stated. Further, this aspect of
mechanical fault was neither the case of the claimants nor the case of
the owner or the driver of the vehicle, as there is nothing in the claim
application or written statement to suggest that there was mechanical
fault in the vehicle. That being so, Tribunal has made out a new case,
which is beyond the pleadings of the parties, based on a bald statement
of A.W.3. If there was any mechanical defect, the Motor Vehicle
Inspector should have been examined or report of the Motor Vehicle
Inspector should have been exhibited. Neither the Motor Vehicle
Inspector was examined nor his report was exhibited, which also
substantiates that there was no material before the Tribunal, to conclude
that there was mechanical fault in the vehicle. Driver of the vehicle was
also not produced as a witness. Thus, this Court feels that the findings
of the Tribunal that the vehicle was mechanically defective is without
any cogent evidence, thus, the aforesaid finding of the Tribunal is
hereby set aside.
16. Now the question is whether there is any evidence of rashness or
negligence in this case. As per the evidence of A.W.2 and A.W.3, I find
that they only stated that the vehicle was not being driven rashly or
negligently and was being driven at a slow speed and the accident
occurred when the vehicle dashed a mango tree, resulting in
instantaneous death of the deceased and injury of 5-6 persons.
Documentary evidence, i.e., First Information Report and the
Chargesheet, suggest that the vehicle was being driven in a rash and
negligent manner. Now in view of considering two contradictory
materials, it has to be decided as to whether there was any element of
rashness or negligence in this case or not?
17. On the facts of this case and in view of two different type of
evidence, I am of the opinion that doctrine of res ipsa loquitur can be
applied. Applying the said principle, the manner in which the accident
had taken place, sufficiently implies negligence. Admittedly, the vehicle
dashed against a mango tree, resulting in instantaneous death of the
deceased and causing injury of six persons, who were also treated in
Health Centre. This fact is admitted. This suggests that the impact of the
collision of the vehicle against the mango tree was with such force that it
resulted in one death and injury of six others. Such impact cannot be
said to be a soft impact. If I take the evidence of the witnesses that the
vehicle was being driven slowly, then if a slow moving vehicle dashes
against a tree, it will not result in an accident of such magnitude, which
would result in injury of six persons and causing death of one. A vehicle,
which dashes against a tree resulting in a death of a passenger and
injury of six others, must be driven rashly and negligently. This is the
logical inference which can be drawn. Rashness and negligence has got
nothing to do with the speed of the vehicle. A vehicle can be driven
rashly or negligently even at a slow speed. As held earlier, there was
nothing on record to suggest that the vehicle was mechanically faulty
and in that view, this Court fails to understand if there was no rashness
or negligence on the part of the driver then, how a slow speed vehicle
dashes against a mango tree, resulting in death of one person and injury
to six others. Thus, the finding that there was no rashness or negligence
on the part of the driver of the vehicle because the vehicle was at slow
speed is not accepted by this Court. The manner in which accident had
taken place and the result of the accident, i.e., death of one and injury to
six others, clearly, in unequivocal terms, suggests that there was great
element of rashness and negligence on part of the driver in driving the
vehicle. Thus, I hold that the vehicle was being driven in rash and
negligent manner, which resulted in accident. Contrary findings of the
Tribunal is, thus, set aside.
18. Since this Court has held that there was element of rashness and
negligence due to which the accident had occurred, the judgment cited
by the Insurance Company is not applicable.
19. Since the aforesaid two issues have been decided, the third
question need not be answered as the accident occurred due to use of a
motor vehicle and there was rashness and negligence in driving the
vehicle and the deceased died arising out of such accident, the
claimants are entitled for compensation.
20. As the Tribunal dismissed the claim application on the grounds
mentioned by it, the Tribunal has not quantified the amount of
compensation. Now, there are two options left to this Court either to
remand the case to the Tribunal for deciding the quantum of
compensation or to decide the quantum in this appeal itself.
21. Be it noted that there is a finding of the Tribunal that there was
violation of the conditions of policy. This finding has not been challenged
by any of the parties. When I go through the record, I find that there are
sufficient evidence before this Court to decide the quantum of
compensation. Further, the claim application is of 2010 and since there
are sufficient evidence to decide the quantum of compensation, it would
not be proper for this Court to remit the matter back to the Tribunal for
deciding quantum of compensation. Thus, I proceed to decide the
quantum of compensation.
22. A.W.1 has stated that the deceased was cultivator and was
growing vegetables and paddy. From vegetables he used to earn
Rs.3,000/- per month and yearly income from paddy cultivation is
Rs.20,000/-. On the point of income, this witness was not cross-
examined. A.W.2 Jageshwar Nagesia, has also stated that deceased
was earning Rs.3,000/- per month from selling vegetables and
Rs.20,000/- a year from paddy. He also was not cross-examined on the
point of income. A.W.3 stated that the deceased was cultivating
vegetables like potato, bringel, tomato, etc. and was earning Rs.3,000/-
per month. In cross examination, he also stated that his father, who is
the deceased, used to cultivate vegetables. Thus, I find that there is
consistent evidence about the monthly income of the deceased, which is
Rs.3,000/- per month. Over and above Rs.3,000/- per month,
Rs.20,000/- per year was the income of the deceased from paddy
cultivation. Thus, the annual income of the deceased for purposes of
computing amount of compensation would be Rs.56,000/-.
23. So far as the age of the deceased is concerned, I find that in the
claim application it has been mentioned that deceased was aged about
50 years. The statement of the witnesses also suggest that the
deceased was aged about 50 years. Postmortem report has been
exhibited, wherein the age of the deceased has been assessed to be 50
years. Thus, I hold that the deceased was aged about 50 years. The
multiplier in the instant case would be '13' in view of the age of the
deceased. Thus, in view of the judgment of the Hon'ble Supreme Court
in the case of Smt. Sarla Verma & Others versus Delhi Transport
Corporation & Another reported in (2009) 6 SCC 121 1/4th should be
the deduction on account of personal expenses. In view of the judgment
rendered by the Hon'ble Supreme Court in the case of National
Insurance Company Limited versus Pranay Sethi & Others reported
in (2017) 16 SCC 680 since the deceased was self-employed and was
aged about 50 years, 25% enhancement on account of future prospect
should be awarded. Under the conventional head, the compensation
should be Rs.70,000/-. Thus, the amount of compensation so assessed
would be as follows: -
Sl. Description Calculation Amount
No.
1 Amount of compensation taking yearly
income of the deceased as Rs.56,000/- with 56,000 x 13 7,28,000.00
multiplier of '13'
2 Amount of compensation after deducting
th 7,28,000 - 1,82,000 5,46,000.00
1/4 on account of personal expenses
3 Amount of compensation after adding 25%
5,46,000 + 1,36,500 6,82,500.00
on account of future prospect
4 Amount of compensation adding the amount
6,82,500 + 70000 7,52,500.00
of Rs.70,000/- under conventional head
24. The Tribunal has already held that there is violation of terms and
conditions of the policy and the Insurance Company is entitled to
recover the amount of compensation from the owner of the vehicle. I find
no material to disagree with the aforesaid finding. Thus, the Insurance
Company is entitled to recover the aforesaid amount of compensation
from the owner of the vehicle.
25. In view of what has been held above, Insurance Company is
directed to pay the amount of compensation to the tune of Rs.7,52,500/-
(Rupees Seven Lakh Fifty Two Thousand Five Hundred) with an
interest of 6.5% per annum from the date of claim application, i.e.,
30.06.2010, till the date the amount of compensation is paid, to the
claimants. It is expected that the amount of compensation should be
paid within three months from today to the claimants.
26. This appeal stands allowed. Impugned judgment and award dated
29th day of August, 2016 passed by the Principal District Judge, Gumla
in M.A.C. Case No. 48 of 2010 is set aside.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, the 28th June, 2022
NAFR/AFR
