Tripura High Court
Smti. Indra Kannya Tripura(Noatia) vs The Chairman-Cum-Managing Director on 8 January, 2018
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
RFA NO.15 OF 2014
1.Smti. Indra Kannya Tripura(Noatia)
W/o. Late Ashwin Moni Noatia
2. Miss Bishnu. Kannya Noatia
D/o. Late Aswin Moni Noatia
3. Shri Premdhan Noatia
S/o. Late Aswin Moni Noatia
All are residents of Village-
Neuramura, P.O. Taibandal, P.S.
Melaghar, Sub- Division- Sonamura,
District- Sepahijala
(The Appellants No.2 & 3 are being
minor represented by their natural
guardian mother Smti. Indra Kannya Tripura (Noatia)
the Appellant No.1
..................... Appellants
-Vs-
1. The Chairman-Cum-Managing Director,
Tripura State Electricity Corporation Ltd.,
Bhuturia, Near Mara Chowmuhani, Agartala, West Tripura.
2. The Director of Finance,
Tripura State Electricity Corporation
Limited, Bhuturia, Near Mara Chowmuhani,
Agartala, West Tripura
3. The Senior Managar (Electrical),
Sonamura Electrical Sub-Division,
Sonamura, Dist. Sepahijala, Tripura
..................... Respondents
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the Appellant : Mr. A. Dey, Advocate.
For the respondents : Ms. R. Purukayastha, Advocate.
Date of hearing : 27.11.2017.
Date of delivery of judgement
and order : 08.01.2018.
Yes No
Whether fit for reporting : √
RFA NO.15 OF 2014 Page 1 of 21
JUDGMENT & ORDER
This is an appeal by the plaintiff from the judgment and order dated 18.07.2014 delivered in Money Suit No. 28 of 2012 by the Civil Judge, Senior Division, Court No2, West Tripura, Agartala.
2. By the said judgment dated 18.07.2014, it has been held by the trial Court that the plaintiff has failed to discharge his burden of proving the pleading. In short, the plaintiff has failed to prove that the death occurred to one Ashwin Mani Noatia was on account of electrocution for negligence on the part of the defendantrespondents. Apparent it is, on the face of the record, that the suit was instituted under Section 1A of the Fatal Accidents Act, 1855.
On 20.06.2011 at about 12.00 hours while the deceased was working in the field at Neuramura, he came into contact with live electric wire lying in the field being detached from the electric pole and he died due to electrocution instantaneously. It has been pleaded that the local people had informed the Electrical Substation to repair the electricity line in the said area, but they did not pay any heed to their request. For the said unnatural death, a police case was registered by the Melaghar Police Station being U.D. Case No.5/2011 under Section 174 of the Cr.P.C and inquiry was duly taken up to reveal the cause of death. The plaintiffappellants sent a demand notice on the defendantrespondents demanding compensation for the said death occurred due to gross negligence of the defendantrespondents, but no compensation was paid. On the contrary, the defendantrespondents stiffly resisted the claim RFA NO.15 OF 2014 Page 2 of 21 denying that there was any negligence on their part for the death of the deceased.
3. Based on the pleadings, the following issues were framed:
1) Is the suit maintainable in its present form and nature?
2) Whether Ashwin Moni Noatia the predecessor in interest of the plaintiffs of this suit died on 20062011 at about 1200 hours at Neuramura (Sambasi Mura) under Melaghar P.S. out of electrocution?
3) Was there any wrongful act or negligence or actionable wrong on the part of the defendants for the death of Ashwin Moni Noatia due of electrocution ?
4) Are the plaintiffs entitled to get a decree as prayed for in their plaint?
5) To what other relief/reliefs the parties to this suit are entitled to get?
4. The appellant No.1 [the plaintiff No.1 in the suit] examined herself as P.W.1 and no other witness was examined by the plaintiff appellants. In the trial, however, the plaintiffs have adduced the following documentary evidence vis:
(1) the certified copy of the F.I.R. in connection with the U.D. case No.5/ 2011 [Exbt1].
2) Certified copy of the death body challan in respect of the Ashwin Moni Noatia [Exbt2].
3) Certified copy of the inquest report of the deceased Ashwin Moni Noatia [Exbt3].
4) Certified copy of the postmortem report of the deceased Ashwin Moni Noatia [Exbt4].
5) Certified copy of the final report in U.D. case No. 5/11 [Exbt5].
6) Copy of the notice dated 12.02.2012 [Exbt6].RFA NO.15 OF 2014 Page 3 of 21
5. Having recorded the evidence, both oral and documentary the trial Court has appreciated the records and inferred as under:
"To support there claim the plaintiffs have submitted the final report including the post mortem report and dead body challan in respect of the deceased which were formally marked as exhibits. The plaintiffs did not, however, adduce/produce the Medical Officer who held the post mortem examination over the dead body of the deceased to establish their claim of death of deceased by electrocution. The plaintiffs appears to have not made any attempts to prove the documents (exbts.1 to 6) by producing the author of those documents. We, therefore, hold that the plaintiffs did not prove the documents as per rules for proving the documents prescribed in the Indian Evidence Act vide Section 67. At this juncture it requires determination as to whether admitting any documents into evidence marking it as exhibit can be said to be proved. In this connection we may make reference to the decision rendered by the Hon'ble High Court of Tripura in the Case of " Rina Laskar and other Vs Rabindra Chandra and another reported in (2013) 2 TLR 467, wherein in para 6 it was held that " according to law mere marking of a document as exhibit does not necessarily prove the content of the document. The content of the document is to be prove according to the procedure prescribed by Law....."
In absence of the convincing evidence of medical expert we are not in a position to hold that the death of the deceased was caused due to electrocution."
As sequence, the Trial Court dismissed the suit by the said judgment dated 18.07.2014 which is under challenge in this appeal filed under Section 96 of the CPC.
6. Mr. A. De, learned counsel appearing for the appellants has submitted that the observation in respect of proving the content in a document as made by the Trial Court is absolutely unsustainable inasmuch as Section 67 of the Indian Evidence Act provides only for RFA NO.15 OF 2014 Page 4 of 21 proof of signature and handwriting of a person alleged to have been signed or written document produced. The content becomes automatically readable.
For purpose of reference, Section 67 of Indian Evidence Act is reproduced hereunder:
" Proof of signature and handwriting of person alleged to have signed or written document produced; if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting"
7. Mr. De, learned counsel has submitted that if a documents is alleged to have signed or to have been written wholly or in part by any person, the signature or the handwriting of such a document, as is alleged to be in that person's handwriting, shall be proved to be in his handwriting. According to Mr. De, learned counsel, that only when the handwriting or the signature is questioned, then the person who has written the same shall come forward and prove that signature or the handwriting.
8. Mr. De, learned counsel has further submitted that Section 79 of the Indian Evidence Act further provides that the Court shall presume to be genuine any document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized thereto to by the Central Government.
RFA NO.15 OF 2014 Page 5 of 21
In support of his contention Mr. De, learned counsel has relied on a decision of the Apex Court in Ranvir Singh and another Vs. Union of India reported in (2005) 12 SCC 59 " The contention of Mr. Nariman that the xerox copies of the deeds of sale produced by the parties were not admissible in evidence in terms of Section 51A of the Land Acquisition Act is stated to be rejected. The provisions of the Evidence Act,1872 postulate that secondary evidence can be led by the parties in the event primary evidence is not available. In a case of this nature, however the respondent claimant may be aware of the transactions. In disputably, they did not raise any objection as regard admissibility of the said deeds of sale. The xerox copy of the deeds of sale were marked exhibits without any objection having been taken by the Respondents herein. Such an objection cannot, therefore, be taken for the first time before this Court [See R.V.E Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Dayamathi Bai vs. K.M. Shaffi. What would be their evidentiary value may ultimately fall for consideration by the Court but the said deeds of sale cannot be rejected only on the ground that only Xerox copies thereof had been brought on records. The onus to prove market value as obtaining on the date of notification was on the claimants. It was for them to adduce evidence to prove their claims by bring sufficient and cogent materials on records so as to enable the Court to determine the market value of the acquired land as on the date of issuance of notification under Section 4 of the Land Acquisition Act. If the claimant themselves filed Xerox copies of the deeds of sale or filed to examine any witness to prove the relevant factors for determining the market value of the land acquired with reference to the said sale instance, they cannot now be permitted to resile there from and contend that the said documents should be totally ignored."
[Emphasis Added]
9. While in order to defend the judgment as passed by the Trial Court, Ms. R. Purukayastha, learned counsel has submitted that always those documents, viz 1) Certified copy of the F.I.R. in connection with RFA NO.15 OF 2014 Page 6 of 21 U.D. Case No. 5/2011 [Exbt1] 2) Certified copy of dead body challan in respect of the deceased Aswin Mani Noatia. [Exbt2] 3) Certified copy of inquest report in respect of deceased Aswin Mani Noatia [Exbt3] 4) Certified copy of the postmortem report of deceased Aswin Mani Noatia [Exbt4] 5) Certified copy of final report in connection U.D. case No.5 OF 2011 [Exbt5] 6) Copy of the notice dated 12.02.2012 [Exbt6] were not admitted in the evidence by the person who created those documents either proving their writing or caused the preparation of the documents. As such, the contents of those documents should be deemed to have not proved.
10. Ms. Purukayastha, learned counsel has referred a decision of the Apex Court in Alamelu & another Vs. State reported in (2011) 2 SCC 385 where a transfer certificate of the Government School was introduced by the person who issued that said certified in that case. The question that had fallen for consideration was that whether the date of birth as recorded in the said transfer certificate issued by school can be held to have been proved by virtue of the said document.
The Apex Court in that context as has observed as under:
"Undoubtedly, the transfer certificate, Ext.P16 indicates that the girl's date of birth was 1561977. Therefore, even according to the aforesaid certificate, she should not be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident i.e. 3171993. The Transfer certificate has been issued by a government school and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer RFA NO.15 OF 2014 Page 7 of 21 certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined."
11. Ms. R. Purukayastha, learned counsel, thus contended that even if the document is admitted in the evidence, its content does not get automatically admitted. It depends upon proof of the fact from its originator. Such fact can not be held to have proved by that document.
In Narbada Devi Gupta Vs. Birendra Kumar Jaiswal reported in (2003) 8 SCC 745 the Apex Court has observed as under:
"16..... The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has be to proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue."
12. It has been also observed in Alumelu (supra) that a public document has to be tested by applying the same standard in civil as well as in the criminal proceeding. In this context, it would be appropriate to notice the observation made by the Apex Court in Ravinder Singh Gorkhi Vs. State of U.P. reported in (2006) 5 SCC 584 where it was inter alia observed as under: " A Court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."
RFA NO.15 OF 2014 Page 8 of 21
13. Ms. R. Purukayastha, learned counsel has also submitted that this Court in Bunti alias Ajoy Banik and anr. Vs. The State of Tripura reported in (2016) 2 TLR 854 had occasion to observe as under: " The post mortem report contains the opinion of the Medical Officer. He has to opine whether the injuries are post mortem or antimortem. He has to say the approximate time of death, invariably he must mention the type of weapon which was used in causing the injuries. The opinion of the Medical Officer contained in the post mortem report is only to aid the Investigating Officer in investigation. The post mortem report cannot be held to be a report of the Medical Officer of his official "act" for the use of the public. It is well settled that the post mortem report or injury report is not substantive evidence. It has to be proved by the maker of it. It cannot, therefore, be termed as a public document as envisaged under section 74 of the Indian Evidence Act. It is also settled position by now that, merely proving the handwriting of the person who had written a document, the veracity of the statement made in the said document cannot be proved. Such person must depose before the court in support of the contents and face the crossexamination. Otherwise such document can merely be taken into consideration for purpose of showing that such document issued once, its genuineness is proved. But whether the contents of the certificate are correct or not, such facts cannot go into the evidence unless the author of the document deposes before the court and faces cross examination. The contents of a document without examining the author are worst pieces of hearsay evidence." [Emphasis added]
14. Ms. R. Purukayastha, learned counsel appearing for the respondents has stated that the opinion of the doctor in respect of death of the petitioner cannot be deemed as admitted unless the doctor is examined. Similarly, the final police report or any statement under Section 161 of the Cr.P.C respectively made by the police officer cannot RFA NO.15 OF 2014 Page 9 of 21 be straightaway admitted unless the persons who made those statements are examined.
15. According to Ms. Purukayastha, learned counsel, the plaintiffappellant No.1 has merely stated that the deceased died of electrocution for negligence of the respondentcorporation. Further, it has been stated by the plaintiffappellant No.1 (P.W.1) that "suddenly said Ashwin Moni Noatia came into contact with electric snapping live wire lying on the field which was detached from the electric pole as a result, Ashwin Moni Noatia died by electrocution. Ashwin Moni Noatia could not know that the live wire was lying on the field"
16. P.W. 1 has further stated that the electricitycorporation was negligent as due care and caution were not taken up by them for maintaining the electric lines and electric wires used for supply of electricity. The aforesaid incident took place for sheer negligence on the part of the electricitycorporation. It was the duty of the electricity corporation to checkup the line round the clock, so that such untoward incident did not occur. The electricitycorporation is therefore, liable to pay compensation to the plaintiff. She has further deposed in the trial that "......in connection with the incident, a police case was registered vide Melaghar P.S. U.D. case No.05/2011 dated 20.06.2011 under Section 174 of Cr.P.C. The investigation agency carried on investigation over the matter and submitted their final report. From the final report, it has revealed that the incident happened due to negligence on the part of the electricitycorporation as due care and caution was not taken by RFA NO.15 OF 2014 Page 10 of 21 them for proper maintenance of the electricity lines and electric pole. Prior to the incident, the local people requested the local electrical sub station to repair and to do maintenance of the whole electric lines of Neuramura (Sambasi Mura) area, but they did not pay any heed. After the incident, the occurrence was reported by local people to the Sonamura Electric Subdivision as well as Melaghar Electric Sub Station. After getting the information, the electricitycorporation rushed to the place of occurance and made an inquiry over the incident."
17. P.W.1 has also stated in the examination in chief that in Taibandal Primary Health Centre, the husband of P.W.1 was declared dead. The postmortem examination was conducted by the medical officer of the Melaghar Hospital and from the postmortem report, it has revealed that Ashwin Moni Noatia died by electrocution.
18. The other part of the deposition contains the occupation and earning of the deceased person for purpose of quantifying the damage. The compensation, according to the plaintiffappellant should be Rs. 11,58,000/ with interest from the date of the incident. The respondents did not cross examine her (P.W.7) on the death of the deceased. They have only contradicted by suggesting that there was no actionable wrong and negligence on the part of the defendants.
19. P.W.2, Dibyamohan Tripura, is an independent witness who has corroborated every part of the statement made by P.W.1. He was also cross examined in a cursory manner without confronting the RFA NO.15 OF 2014 Page 11 of 21 statements made in the examination in chief except to suggest that there was no actionable wrong and negligence on the part of the defendants. The defendantrespondents did not adduce any evidence. From the record, it is further found that at the time of the introduction of certified copies of those documents, no objection was raised by the respondent corporation. That apart, it appears that the respondentcorporation by filing the written statement has categorically asserted that, the defendants are not responsible for any compensation to the plaintiffs but they were evasive while stating that there was no snapping of live wire on the field as pleaded by the plaintiffappellants.
20. After appreciation of the evidence and the submission made by the learned counsel, for purpose of deciding this appeal this Court consider the following questions are paramount:
i) When no objection was raised in respect of the documents [Exbt1 to Exbt6] while those were admitted by the Court whether it can be deemed that the contents of those documents are well proved?
ii) Whether did the plaintiffappellants prove their case by the evidence, if appreciated cumulatively?
21. It appears from the records that P.W.2 was an independent witness however, it cannot be gathered whether at the time of accident P.W.1 and P.W.2 were nearby the place of incident.
22. True it is that from the testimonies of P.W.1 and P.W.2, the fact that on 20.06.2011 Ashwin Moni Noatia was electrocuted is established. When Ashwin Moni Noatia was taken to the Taibandal Primary Health Centre he was declared dead. There was investigation RFA NO.15 OF 2014 Page 12 of 21 into the unnatural death. Section 61 of the Evidence Act clearly provides that contents of document be proved either by primary or by secondary evidence. Primary evidence has been defined in Section 62 of the Indian Evidence Act, meaning the documents itself produced for inspection of the Court but when the document itself cannot be produce the secondary evidence can be produced in the evidence and the secondary evidence in terms of Section 63 of the Indian Evidence Act includes the following documents.
1) Certified copies given under the provisions hereinafter contained.
2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy , and copies compared with such copies;
3) Copies made from or compared with the original;
4) Counterparts of documents as against the parties who did not execute them;
5) Oral accounts of the contents of a document give by some person who has himself seen it.
23. In terms of those illustrations the documents which were exhibited are secondary evidence. The copy compared with a copy of the letter made by copying machine is secondary evidence of the content of the letter, if it is shown that the copy made by the copying machine was made from original. No reservation had been expressed by the defendants even they did not make any endeavor to show that the copies which were admitted in the records of evidence are not within the meaning of the secondary evidence. In terms of Section 64 of the Evidence Act, the documents has to be proved by primary evidence RFA NO.15 OF 2014 Page 13 of 21 except in some cases as provided under Section 65 of the Indian Evidence Act.
Section 65 of the Indian Evidence act reads as under:
" 65. Cases in which secondary evidence relating to documents may be given Secondary evidence may be given of the existence, condition, or contents of a documents in the following cases:
a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it ;
b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representatives in interest;
C) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it is reasonable time;
d) When the original is of such a nature as not to be easily movable;
e) when the original is a public document within the meaning of section 74;
f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given to evidence;
g) When the originals consists of numerous accounts or other document which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In case (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
In case (b) the written admission is admissible RFA NO.15 OF 2014 Page 14 of 21 In case (e) or (f) , a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
24. Unless the making of those documents are specifically denied by the person by whom it purports to have been executed, admission cannot be questioned. What thus clearly appears from the records of evidence that in the postmortem reports the following opinion has been recorded by the postmortem doctor " the death is due to high voltage electric shock ".
25. In the final report filed under Section 174 of the Cr.P.C, the investigating officer has observed as under:
"During investigation for the statement of witnesses and his family members under Section 161 of the Cr.P.C nothing any foul play about the expiry of deceased Namely Ashwin Mani Noatia (35) son of late Panehan Pada Noatia of Neuramura P.S. Melaghar Dist. Sonamura, West Tripura and also no allegation from his family members. So the case is useless for dragging further".
26. So before the investigating officer there was no evidence of negligence as such except the postmortem report, even though in the postmortem report [Exbt5] the statement of one Sukramani Murasingh and the statement of Nambashi Noatia were relied upon, They had stated that the live electric line was snapped and detached from the electric pole for the negligence as the said line was not properly maintained within the minimum time. As consequence of contact of that line, the deceased died. The way the question has been projected by the learned RFA NO.15 OF 2014 Page 15 of 21 counsel of the respondents was a little bit crude. So far the contents of any document which are the evidence of fact or partly support such fact are highly required for proving the relevant facts. [ See Iswhar Das Jain Vs Sohan lal reported in AIR 2000 SC 426].
27. There can be numerous situations and numerous approaches within the frame work of the Indian Evidence Act to prove a relevant fact by way of documentary evidence or partly by documentary evidence. When the fact is the date of birth, mere availability of date of birth in a official document does not or cannot mean that is the correct date of birth. That is the reason why the Apex Court in Alumelu (supra) has observed that it would be the primary duty of the person who wants to assert the correct date of birth, to get it confirmed through the basic documents or public documents such as the birth certificate of a Government Hospital or a certificate given by the medical officer etc. But when in a case a death of a person emerges on whether his death was for negligence of the other party, it would be incumbent firstly to prove the said fact from the basic documents such as the postmortem report etc., and to produce the original postmortem report to meet the requirements of Section 61 of the Evidence Act. But at the same time, when without any objection the certified copies of the original documents are introduced, those content can be read. Even if, the author was not examined, the entries there in can be read or appreciated. If on cumulative reading with this entires, the court can come to the inference on the fact of negligence and liability meaning the Court finds that from the materials so placed, the existence of the fact as stated is so probable RFA NO.15 OF 2014 Page 16 of 21 that the prudent man ought, under the circumstance of the particular case to act upon the supposition that it existed. That apart in Premlata Shukla (supra) it has been clearly held that a party objecting to admissibility of a document must raise its objection at the appropriate time and if the objection is not raised and the document is allowed to be marked and that to at the instance of a party which has proved the same and where from the consent of the other party has been obtained the former cannot be permitted to turn around and raise the plea that the content of document has not been proved.
28. In R.V.E. Venkatachala Gounder Vs Arulmigu Viswesaraswami and V.P. Temple and Another reported (2003) 8 SCC 572 the Apex Court has clearly laid down the principle and consequence of noncompliance of those principles as regard the reading the content of a documents in any trial or a inquiry, it has been observed as follows:
" Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objection as to admissibility of documents in evidence may be classified into two classes:i) an objection that the document which is sought to be proved is itself inadmissible in evidence and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit' an objection as to its admissibility is not excluded and is available to be raised even at a later stage or been in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test RFA NO.15 OF 2014 Page 17 of 21 is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to act on fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand a prompt objection does not prejudiced the party tendering the evidence, for two reason, first, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."
[Emphasis Added]
29. In this case also, as it has been observed that the documents are otherwise admissible but for nonobservance of the rule [section67], according to the Court below, the content was not proved and, as consequence the suit was dismissed. Such inference is a pedantic in nature as without appreciating the attending circumstances, such as, not raising any objection at the time of admission the documents which comes under Section 63 of the Indian evidence Act were discarded. Finally, when the fact based on the document narrated by P.W1 and P.W2, no crossexamination regarding the statement based on those documents were carried out nor had there been any challenge against those documents [now admitted and marked] RFA NO.15 OF 2014 Page 18 of 21
30. There cannot be any amount of doubt is that the plaintiff appellants failed to produce the best evidence, but the evidence they produced, in the considered opinion of this Court as this Court has declined to accept the rejection of the documents marked as [Exbt1 to Exbt6] for the reasons as stated above, the court has caused failure of justice. The fact that there was electrocution in the paddy field for snapping of the live electric wire and when Ashwin Moni Noatia was working in the the field he came into contact with the said live wire and died being electrocuted has been proved by oral evidence as well. The postmortem report and the final police report has supported that part. When the statements were made both by P.W1 and P.W2, there was no cross examination on that part. As such on cumulative reading of the evidence it emerges that the plaintiffappellants have probabalized that for negligence of the respondentCorporation Ashwin Moni Noatia died and the plaintiffappellants suffered immeasurable damage. Having observed thus, it is now incumbent upon this Court to quantify the damage. It appears from the evidence particularly from the testimony of P.W1 that Ashwin Moni Noatia used to earn Rs.8000/ per month by cultivation of rice and vegetables and working in MGNREGA works. The plaintiffappellants were wholly dependent on his income. It is very difficult to accept that said sum as his monthly income. But having regard to the income from the MGNREGA programme, it can be safely deduced that the deceased used to earn a sum of Rs. 5000/ per month. The deceased had 3(three) dependents as such of the said income, 1/3 can be deducted on account of his personal expenses. The personal expense thus comes to Rs.1666.66. Rs. 1700/ as round off, can be RFA NO.15 OF 2014 Page 19 of 21 deducted from his monthly income. Then the loss of income comes to Rs.3300/. As the deceased was a man of 35 years, 30 % of his income can be added on account of the loss of future prospects. Thus the month income index would come to Rs.4600/. Having applied the appropriate multiplier in terms of the Sarla Verma(Smt) & others Vs Delhi Transport Corporation and anr. reported in (2009) 6 SCC 121, [the multiplier is 16]. The total loss of dependency is liable to be calculated at Rs.8,83,200/ (4600x16x12). With the said sum, Rs.25,000/ shall be added as consortium which shall be exclusively paid to the plaintiff appellants No.1 and Rs.10,000/ each to the appellant Nos.2 & 3 for the loss of estate. Further, with the said amount a sum of Rs.5000/ shall be paid as funeral expenses. Thus total compensation will come to Rs.8,83,200 + 50,000= Rs.9,33,200/. The amount so computed shall carry interest at the rate of 7 % from the day of the accident i.e. 16.06.2011 till the payment is made.
31. The respondentCorporation is directed to pay the said amount within the period of 3(three) months from today. On deposit, in exclusion to the amount for consortium and loss of estate, the plaintiff appellants shall receive the equal share. The amount as computed for loss of consortium or the loss of estate be added to the share of each of the plaintiffappellants for getting their whole share. The share of the minors shall be maintained in the term deposit in a nationalised bank for the period till the minors attained the majority. RFA NO.15 OF 2014 Page 20 of 21
32. In terms of the above, this appeal stands allowed and the suit is decreed. However, there shall be no further cost.
33. Prepare the decree accordingly, Send down the records thereafter.
JUDGE Suhanjit RFA NO.15 OF 2014 Page 21 of 21