Rajasthan High Court - Jodhpur
Smt. Vidhya And Ors vs Shiv Karan And Ors on 1 October, 2018
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 166/1997 Smt. Vidhya And Ors
----Appellants Versus Shiv Karan And Ors
----Respondents For Appellant(s) : Mr.J.Gehlot For Respondent(s) : None HON'BLE THE CHIEF JUSTICE PRADEEP NANDRAJOG Judgment 01/10/2018
1. The appellants are the wife and five minor children of the deceased Mangilal, who as per the testimony of PW1 Vidhya Devi, the wife of the deceased, was earning his livelihood as a Teacher drawing wages in sum of ₹1455/- p.m. and additionally was earning ₹ 500/- p.m. through other activities.
2. On 29.5.1986, in the evening around 5.00 PM the deceased was driving his auto-cycle (Vicky) bearing registration No.RNN587. As per the claimants the tractor bearing registration No.RRN 6165, owned by respondents 1, 3 and 4 and driven by respondent No.2 in a rash and negligent manner hit the auto-cycle and the rear wheel of the tractor ran over the deceased resulting in his death.
3. After recording evidence, vide impugned award dated 21 st September, 1996 the learned Judge, MACT has returned a finding that the offending vehicle was not involved in the accident. The result is the claim petition being dismissed.
(2 of 6) [CMA-166/1997]
4. The claimants produced two witnesses; Vidhya Devi, the wife of the deceased as PW1 and one Peera Ram as PW2 who claimed to be the eye witness.
5. The learned Judge, MACT has held that Peera Ram was not an eye witness. The reason for so holding is that witness failed to disclose the number of the tractor during his testimony and said that he learnt the name of the driver of the tractor i.e. Jagdish from the utterances of the people at the scene of the accident.
6. I additionally note that in the charge-sheet Ex.C2, the name of Peera Ram is not entered as a witness of the prosecution.
7. The vehicle not being insured, the owners of the tractor contested the claim petition and examined two witnesses. Respondent No.1 Shiv Karan, one of the three co-owners of the tractor appeared as NAW1, deposed that on the date of the accident i.e. 29.5.1986 the tractor was in the custody of one Pukhraj, who was at a petrol pump when the accident took place. Bhanwarlal, NAW2, the Sarpanch of the village requested him to proceed to the site of the accident informing him that the deceased was lying there in an injured condition. The tractor driver took the tractor to the place of the accident with the intention to take the injured to the hospital. The police had reached the spot and seized the tractor.
8. Bhanwarlal, NAW2 supported the testimony of NAW1.
9. The post mortem report Ex.P/6 establishes that the deceased died due to rupture of the left lung at an accident.
10. The question which arises in the appeal is, whether the impugned award suffers from non-appreciation of relevant and material evidence.
(3 of 6) [CMA-166/1997]
11. As the adages goes. Men may lie but circumstances do not lie.
12. The testimony of the defence witnesses establishes the fact that the tractor was seized at a spot where the auto-cycle driven by the deceased was lying in a damaged condition and was also seized. As noted above, the case of the defence was that the driver of the tractor was at a petrol pump and being requested by NAW2 to take the injured to the hospital proceeded to the place of the accident.
13. The file of the criminal trial in which Jagdish stood trial for offences punishable under Section 279 and Section 304A IPC forms part of the trial court record and Ex.P/10 at the trial is a rojnamcha entry recorded at the local police station at 5.35 PM on 29.5.1986. The same records that on telephonic information it was informed that an accident involving tractor bearing registration No.RRN 6165 and an auto-cycle bearing registration No.RNN 587 had taken place.
14. This is a contemporaneous entry in the police record.
15. More importantly is the Ex.P/5 Fard Muayana i.e. inspection report of the tractor and the auto-cycle. It records that the front left tyre as also the rear tyre on the left of the tractor had a scratch of 1-1/2 feet. Splinter of glasses were embedded in the rear tyre. There was a scratch mark on the tool box on the left side of the tractor. It also records that the glass of the light of the auto-cycle was found broken and scattered at the spot.
16. Ex.P/6, the seizure memo of the two vehicles corroborates Ex.P/5, inasmuch as it also records the scratch marks on the two tyres of the tractor and glass splinters embedded in the left rear tyre of the tractor.
(4 of 6) [CMA-166/1997]
17. The impugned award does not discuss the afore-noted evidence and needless to state the three documents referred to by me above tell their own story. The story is that the tractor collided with the auto-cycle.
18. The fact that there are scratch marks on the front and rear tyre of the tractor shows that after the collision took place when the tractor hit the auto-cycle and the impact being with the front tyre hitting, the tractor moved ahead and the rear tyre also hit the auto-cycle and simultaneously ran over the deceased. The post mortem report shows that the ribs and the lungs were injured.
19. Under the circumstances the evidence of the defence has to be rejected and the claim of the claimants has to be accepted.
20. That PW2 was not included as a witness in the list of witnesses filed alongwith charge-sheet filed by the police is no ground to disbelieve the testimony of PW2 which is corroborated through documentary evidence hereinabove noted.
21. Accordingly, I hold that there is sufficient material to hold that the deceased died when the driver of the tractor hit the auto- cycle. The fact that the front and the rear tyre of the tractor have scratch marks establishes that the tractor was being driven fast for if it was not being driven fast, the question of rear tyre running over the deceased after hitting the auto-cycle would not have arisen.
22. It is also relevant to note that as per the owners of the tractor it was being driven by Pukhraj who has been withheld as a defence witness by the owners of the tractor and therefore, an adverse inference needs to be drawn against the owners on this count as well.
(5 of 6) [CMA-166/1997]
23. On the issue of compensation, no evidence being led that the deceased was a Teacher the Tribunal has assessed the compensation on the presumption of the deceased earning ₹1800/- p.m. One third has been deducted towards the personal expenses of the deceased. Thus, treating ₹1200/- p.m. as the income, without indicating the multiplier adopted compensation assessed is ₹2,69,200/- which shows that multiplier adopted is 18.694. Adding ₹25,000/- towards loss of consortium and love and affection for the wife and children respectively, compensation assessed is ₹2,94,200/-. But, in view of the fact that the tractor has been held as not to be the offending vehicle, sum awarded is nil.
24. The age of the deceased was 40 years and in the absence of proof of any income date of the accident being 29.5.1986, in my opinion the only way forward would be to treat the deceased as having some source of income to maintain himself and his family and which sum could reasonably be taken to be ₹1000/- p.m. Keeping in view the age of the deceased, future prospects of 25% needs to be added. The income for the purpose of loss of consortium would therefore be ₹1250/- p.m. Keeping in view the fact that the deceased was maintaining a wife and five children, I deduct one fourth towards personal expenses of the deceased which comes to ₹312/- which I round to ₹310/-. The loss of dependency would therefore be ₹940/- p.m. The annual loss of dependency comes to ₹11,280/-.
25. As per the judgment of the Supreme Court reported as AIR 2017 SC 5157 National Insurance Company Limited V/s Pranay Sethi & ors. multiplier to be adopted has to be 15. Therefore, loss of dependency works out to ₹11,280x15= ₹1,69,200/-. Awarding (6 of 6) [CMA-166/1997] ₹2000/- towards funeral expenses, keeping in view the fact that the date of accident is 29.5.1986, awarding ₹5000/- to the wife as loss of consortium and ₹25,000/-(₹5000/- each to the five children) as loss of love and affection on account of death of the father, total compensation therefore comes to ₹1,69,200/- +2,000+5,000+25,000=₹2,01,200/-.
26. The amount awarded would be apportioned: 40% to the wife and 12% each to the five children. The compensation shall bear simple interest @ 6% per annum from the date of filing of the claim petition till realization. The liability would be joint and several of the driver and the owners of the tractor.
27. The appeal is allowed accordingly.
(PRADEEP NANDRAJOG),CJ Parmar Powered by TCPDF (www.tcpdf.org)