Calcutta High Court (Appellete Side)
The Managing Director vs Manisha Roy & Ors on 16 September, 2009
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Prasenjit Mandal
F.M.A. 1163 of 2008
With
C.A.N. 601 of 2008
The Managing Director, South Bengal State Transport Corporation
Versus
Manisha Roy & Ors.
And
C.O.T. 62 of 2008
Manisha Roy & Ors.
Versus
The Managing Director, South Bengal State Transport Corporation
For the Appellant in FMA 1163/2008: Mr. Debayan Bera.
For the Respondent in FMA 1163/2008: Mr. Krishanu Banik.
Heard on: 08.09.2009.
Judgment on: 16th September, 2009.
Bhaskar Bhattacharya, J.:
Both the appeal and cross-objection were taken up together and we propose to dispose of those one after the other.
This appeal is at the instance of the owner of the vehicle in a proceeding under Section 166 of the Motor Vehicles Act and is directed against an award dated 5th July, 2007 passed by the Additional District Judge-cum-Member Motor Accident Claims Tribunal, Fast Track Court, First Court, Burdwan in M.A.C. Case No.31 of 2006 thereby disposing of the said proceeding by awarding a sum of Rs.15,00,000/- in favour of the claimants with a direction upon the owner of the vehicle, the Managing Director of the South Bengal State Transport Corporation, Durgapur, to pay the amount with interest @ 7.5% per annum from the date of filing the application till realization of the entire amount.
Being dissatisfied, the owner of the vehicle has come up with the present appeal.
After hearing the learned counsel for the parties and after going through the materials on record, we find that there is no dispute that the victim, an employee of Durgapur Steel Plant, while he was going to his office by his motorcycle, met with an accident involving a bus of the appellant bearing No.WB- 39/2149 resulting in his death. According to the claimants, his widow and two sons, due to rash and negligent driving on the part of the driver of the said bus, the accident occurred. The claimants alleged that the victim was aged about 50 years at the time of accident and used to get Rs.22,637.56 paisa a month as his gross salary. The claimants, thus, claimed a sum of Rs.15,00,000/- as compensation.
The claim-application was contested by the Managing Director of the South Bengal State Transport Corporation, Durgapur, by filing written statement thereby denying the material allegations made in the application for compensation and according to such written statement, the Insurer of the motorcycle involved in the incident was a necessary party and the said Insurance Company was really liable to pay compensation as the accident occurred due to rash and negligent driving on the part of the owner of the motorcycle. It was denied that there was any fault on the part of the driver of the vehicle of the appellant.
At the time of hearing of the aforesaid proceeding, four witnesses were examined on behalf of the claimant but P.W.2 having died before he could face cross-objection of the appellant, his affidavit-in-chief was expunged. No person, however, gave evidence in support of the appellant.
As indicated earlier, the learned Tribunal below on the basis of income of the victim to be Rs.22,000/- a month and by application of multiplier of 11 and deduction of one-third for personal expenses of the victim, arrived at the figure of Rs.19,80,616/- as compensation; but in spite of such finding, the Tribunal decided to reduce the same to Rs.15,00,000/- as the claimants restricted their claim to that amount in the claim-application.
Mr. Bera, the learned advocate appearing on behalf of the appellant, did not dispute the involvement of the vehicle of the appellant in the accident but his contention was that it was due to the contributory negligence on the part of the victim that the accident occurred. Mr. Bera further contends that there was no material to conclude that the victim was really aged 50 years at the time of accident. Mr. Bera further contended that there was no justification of applying the multiplier of 11 in the facts of the present case. In support of his contention, Mr. Bera has relied upon the following decisions:
1) Uttaranchal Transport Corporation Limited vs. Vimla Devi & Ors. reported in (2009) 4 SCC 377;
2) Sayed Basheer Ahamed & Ors. vs. Mahammed Jameel & Another reported in (2009) 2 SCC 225;
3) Bangalore Metropolitan Transport Corporation vs. Padma & Ors. reported in (2009) 3 SCC 285;
4) United India Assurance Company Limited vs. Subhomoy Nag & Another reported in (2008) 4 CHN 452.
Mr. Banik, the learned advocate appearing on behalf of the appellant, has, however, opposed the aforesaid contentions of Mr. Bera and has submitted that the appellant having failed to produce his own employee, the driver of the vehicle, in the witness box, this Court should not entertain the plea of contributory negligence of the victim. Mr. Banik further contends that no suggestion was given to the P.W.1 in cross-examination that his father was aged above 50 years at the time of death though in affidavit-in-chief it was specifically asserted that his father was aged 50 years. Mr. Banik submits that in the absence of any dispute as to the age of the victim at the time of accident raised on the part of the appellant at the time of giving evidence, his client did not adduce any further evidence to prove the age which would appear even from post- mortem report which was filed in the Court. As regards the amount of compensation, Mr. Banik submits that the application of multiplier of 11 was quite justified in the facts of the present case when the victim was in settled service having future prospect. He, therefore, prays for dismissal of the appeal.
As regards the cross-objection filed by his client, Mr. Banik submits that the Tribunal below itself having found that the just amount of compensation should be Rs.19,80,616/-, there was no justification of reducing the same simply because his clients had limited their claim to Rs.15,00,000/- in the claim- application. Mr. Banik, in this connection, places strong reliance upon the decision of the Supreme Court in the case Nagappa Vs. Gurudayal Singh & Others reported in (2002) 8 Supreme 497 where the Supreme Court held that even if a claimant had restricted his claim to a particular amount there is no bar on the part of Tribunal in awarding more than that amount if it appears from evidence that such higher amount is the just amount of compensation payable. He, therefore, prays for enhancement of the compensation to Rs.19,80,616/- which was found to be the just amount of compensation by the Tribunal itself. Mr. Banik also prays for enhancement of the rate of interest to 10% per annum.
Mr. Bera, appearing on behalf of the appellant, has, however, opposed the aforesaid contention of Mr. Banik.
Therefore, the first question that arises for determination in this appeal is whether in the facts of the present case the appellant should be permitted to raise the question of contributory negligence of the victim when indisputably no evidence of such contributory negligence has been given in the Trial Court.
Once involvement of the bus of the appellant in the accident is proved, it was the driver of the bus who could enlighten the Court with the allegation of contributory negligence of the victim in the accident. The appellant for the reasons best known to it has withheld the said driver or even the conductor of the bus from the witness box when definite allegation of the witnesses for the claimants was that due to the rash and negligent driving on the part of the offending bus the accident occurred.
At this stage, we may appropriately refer to the following observations of the Apex Court in the case of Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others reported in AIR 1968 SC 1413 where the said Court pointed out the duty of the party to a suit to appear as witness when he was the best witness to the disputed issue even if the burden of proof was on the other side:
".........Mr. Gokhale, however, argued that it was no part of the appellant's duty to produce the accounts unless he was called upon to do so and the onus was upon the respondents to prove the case and to show that the Dargah was the owner of plot No. 134. We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, 44 Ind App 98 at p. 103 = (AIR 1917 PC 6 at p. 8) Lord Shaw observed as follows :
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision With regard to third parties, this may be right enough - they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
This passage was cited with approval by this Court in a recent decision - Biltu Ram v. Jainandan Prasad, Civil Appeal No. 941 of 1965, D/- 15-4- 1968 (SC). In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh, 42 Ind App 202 at p. 206 = (AIR 1915 PC 96 at p. 98):
"But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents".
But Shah, J., speaking for the Court, stated :
"The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration (g) of S. 114 of the Evidence Act, and also an impressive body of authority.""
Even in the subsequent case of the Supreme Court in the case of Vidhyadhar Vs. Mankikrao and another reported in AIR 1999 SC 1441, the Apex Court took the action of a party deciding not to appear as a witness and to offer himself for cross-examination, in the following way:
"Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
Therefore, the appellant in this case having failed to bring the driver or the conductor of the bus who were its employees and under its control to the witness box to give evidence and face cross-examination of the claimants, we should draw adverse inference against the appellant and will not entertain the plea of contributory negligence of the victim when the witnesses for the claimants have asserted rash and negligent driving on the part of the driver of the offending bus and in spite of such allegation, the appellant did not feel the necessity of bringing the driver as a witness to even deny the rash and negligent driving of the vehicle. The position would have been different if from the evidence given by the witnesses for the claimants themselves it would appear that there was some contributory negligence on the part of the victim or that there was any admission of such contributory negligence in the pleading of the claimants. Such being not the position, it is a fit case of drawing adverse inference against the appellant.
The next question is whether the Tribunal below was justified in holding that the victim was aged 50 years at the time of accident.
We find substance in the contention of Mr. Banik that the son of the victim in his affidavit-in-chief clearly asserted that his father was 50 years old at the time of accident but no suggestion was given to him in cross-examination disputing the said age. In view of such fact, the claimants did not feel the necessity of proving the post-mortem report which was filed for the purpose of proving the age of the victim. It is needless to mention that the appellant led no evidence to controvert such fact. We, therefore, find that the Tribunal was quite justified in concluding that the victim was aged 50 years at the time of death.
The next question is whether the tribunal was justified in applying the multiplier of 11 in the facts of the present case.
The victim in this case was an employee of Duragpur Steel Plant having gross income of Rs.22,637/- a month out of which a sum of Rs.330/- was deducted towards income tax and Rs.130/- towards Professional Tax. Thus, after deduction of those taxes, the amount of income of the victim was still above Rs.22,000/- a month. He was in a stable service with future prospect of assured increase of salary in accordance with the scale of pay enjoyed by him. In such circumstances, the application of multiplier of 11 on the basis of the then salary of Rs.22,000/- which would increase a lot in course of next ten years of service still left cannot be said to be unreasonable. Even according to second schedule of Motor Vehicles Act where a claimant is not even required to prove the rash and negligent driving of the involved vehicle, the legislature having prescribed 11 as the appropriate multiplier where the victim is aged between 50 and 55 years, there is no reason why the same multiplier should not be applied when the claimants have proved that the bus owned by the appellant due to the rash and negligent driving of the driver of the appellant has killed the victim, an innocent person, for no fault on his part and the appellant had not the courage of the bringing its driver to face Trial.
We, thus, find no reason to reduce the multiplier below 11, more so, when the assessment has been made without considering the future prospect of the victim in service. (See Oriental Insurance Company Ltd. vs. Jeshuben and others reported in 2008(2) T.A.C 12 (SC) and General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas reported in (1994) SCC 176;) We now propose to deal with the decisions cited by Mr. Bera in this connection.
In the case of Uttaranchal Transport Corporation Limited (supra), the claimant alleged that the victim was aged 43 years and had income of Rs.12000/- a month. The Tribunal found that the claimant failed to prove income of the victim and thus, applied the principles of notional income of Rs.15,000/- per annum and held that the claimants would be entitled to Rs.1,84,500/- as compensation. On appeal by the claimant, the High Court treated the income to be Rs.3000/- a month without any basis and applied the multiplier of 15 and arrived at the figure of Rs.3,60,000/- with interest at the rate of 9% per annum. On appeal by the owner, the Apex Court reduced the amount to Rs.2,40,000/- with interest at the rate of 6% per annum by applying the multiplier of 10 to the facts of the said case. In our opinion, the decision of the Apex Court based on the facts of that case where there was no basis of the income of the victim as found by the Apex Court itself cannot have any application to a case of a victim who was in a stable service with future prospect. In this type of a case, the Apex Court has for the purpose of assessment has even gone to the extent of doubling the then income and then adopted a suitable multiplier. (See Oriental Insurance Company Ltd vs. Jashuben and others and General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas (supra)). We, therefore, find that the said decision is not applicable to the facts of the present case.
In the case of Syed Basheer Ahmed and others (supra), the Apex Court was dealing with a case of victim aged 20 year engaged in a business having no fixed income. The Court applied the multiplier of 14 after deducting half of the income as his personal income as he was a bachelor. In our opinion, the principles applicable to the fact of a case of a victim died at the age of 20 cannot have any application to a case where the victim is aged 50 years having stable income and future prospect. We cannot lose sight of the fact that in a service career, the income of the service holder increases a lot in the last ten years of service and thus, the principles laid down in that decision cannot have any application to the facts of the present case.
In the case of Bangalore Metropolitan Transport Corporation (supra), the victim was a government employee died at the age of 53 years. The Supreme Court without giving any reason for the basis it followed decided to apply the multiplier of 8. In that case, the victim was due to retire after seven years and the Apex Court applied the multiplier of 8. If we apply the same principle to the facts of the present case, where the victim had ten years of service in hand, there is nothing wrong in applying the multiplier of 11.
In the case of Subhomoy Nag (supra), a Division Bench of this Court held that in proceedings under section 166 of the Act, the second schedule in terms does not apply. It was pointed out therein that the said schedule is applicable to the proceedings under Section 163A of the Act where the claimants are not even required to prove the negligence of the involved vehicle and is applicable to the victim whose income does not exceed Rs.40,000/- per annum whereas in the proceedings under Section166 of the Act, the rash and negligent driving of the offending vehicle must be established and the actual loss suffered by the claimants for the untimely death is to be ascertained as far as possible and practicable. We do not for a moment dispute the said proposition of law. The duty of the Court to assess just compensation becomes easier when the victim is in a stable service and his scale of pay is known. In such circumstances, the Court can easily get a rough idea of the loss suffered by the claimants. In this case, the income of the victim being known and the rest period of the service being also known, the Tribunal rightly applied the multiplier of 11 when assessment has been made on the basis of income of the victim at the age of 50 being fully conscious that he would have retired after 10 years at a much higher scale of pay were he not died of the accident. We, thus, do not find that the said decision helps the appellant in anyway.
As regards, the cross-objection, we find substance in the contention of Mr. Banik that in view of the decision of the Apex Court in the case of Nagappa (supra), the Tribunal had no justification of reducing the amount after having found that the sum of Rs.19,80,616/- is the just amount of compensation in the facts of the present case simply because the claimants prayed for a lesser amount in the claim-application.
We, therefore, allow the cross-objection by enhancing the amount of compensation to Rs.19,80,616/- with interest at the rate of 7.5% per annum from the date of filing the application till the deposit of the amount by the appellant. We do not find any reason to interfere with the rate of interest awarded by the Tribunal which is quite reasonable.
The appeal filed by the owner of the bus is, thus, dismissed and the cross-objection filed by the claimants is allowed to the extent indicated above.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Prasenjit Mandal, J.)