Grijesh Prasad Yadav & Ors vs Ramjhari Devi & Anr on 16 October, 2009

[Cites 11, Cited by 0]

Patna High Court

Grijesh Prasad Yadav & Ors vs Ramjhari Devi & Anr on 16 October, 2009

Both the appeals arises out of same occurrence leading to death of one Late Shankar -2- Chaudhary on 7.2.1997 leading to a compensation case under Motor Vehicles Act vide M.V. Case No. No. 11 of 1997 filed before M.A.C Tribunal Gopalganj, hereinafter referred to as the Tribunal.

Misc. Appeal No. 216 of 2001 arises out of an interim order dated 23.4.2001 of the said Tribunal awarding Rs.50,000/- by way of interim compensation payable to respondent no. 1 by the appellants whereas Misc. Appeal No. 296 of 2004 arises out of judgment dated 7.5.2004 and the resultant award dated 24.06.2004 passed by the Tribunal holding the appellants liable to pay a sum of Rs.1,85,500/- for death of husband of respondent no. 1 in an accident from the motorcycle belonging to appellant no. 1, being driven by his son appellant no. 2.

M. A. No. 216 of 2001 in fact on account of subsequent rendering of the impugned judgment and award being subject matter of M.A. No. 296 of 2004 has for all practical purposes became academic if not infructuous inasmuch as whatever interim compensation was directed to be paid by the Tribunal in its order dated 23.4.2001 now -3- stands merged with the final amount of compensation in the judgment which is the subject matter of the aforesaid M. A. No. 296 of 2004. In this regard however this much needs to be kept in mind that the appellants despite rejection of their payer of stay of the impugned order in M. A. No. 216 of 2001 vide an order of this Court 3.8.2001 as with regard to payment of interim compensation of Rs.50,000/- have not paid the same till date and therefore the respondent no. 1, the widow has stood deprived of the benefit of interim compensation as assured under beneficial legislation in terms of Section 140 of Motor Vehicles Act, 1988 (hereinafter referred to as the „Act‟) for meeting the sudden crisis emerging out of the death of a bread winner.

The basic facts as discussed at length in the impugned judgment are not in dispute that on fateful day i.e. 7.2.1997 the deceased Shankar Chaudhary was going on a bicycle from Mirganj side to Hathwa and when he had reached near Barawa Kaparpura village on Mirganj-Hathwa Road, P. S. Mirganj, District Gopalganj he had met with an accident on account of rash and negligent driving of a motor-cycle by the appellant no. 2, the son -4- of appellant no. 1 who had bought the new motor- cycle only on 27.1.1997 and in fact his insurance policy, for which the dealer had already collected the amount of premium, was yet to be delivered. The fact remains and the appellants have also admitted before the Tribunal that their vehicle was not insured on the day of occurrence i.e. 7.2.1997 and therefore respondent no. 2, General Insurance Company, stood absolved of its liability either in the matter of payment of interim compensation or in the matter of payment of final compensation under the impugned judgment and award.

              In     the         earliest        version        of      the

occurrence,         being a FIR lodged by the village

Chaukidar, an eye witness to the occurrence, he had clearly alleged that such accident and resultant death of husband of respondent no. 1 had taken place on account of rash and negligent driving of motor cycle by appellant no. 2. A subsequent story however was developed by the appellants before the police that as a matter of fact both driver (appellant no. 2) and pillion rider of the motor cycle and the deceased as also the husband of respondent no. 1 on a bicycle were -5- hit by another jeep whose driver was successful in running away from the scene without being caught at the spot and therefore by introducing this story which was also partly believed by the police while submitting a final form against the appellants in Mirganj P. S. Case No. 35 of 1997. It was this defence which was sought to be developed by the appellants before the Tribunal by taking a plea that they were not liable to pay compensation for the death of husband of respondent no. 1. Thus, the main question before the Tribunal was fixation of liability of the appellants in backdrop of their defence developed on account of accident being caused due to the jeep and not on account of motor-cycle.

This aspect of the matter has been gone into at great length by the Tribunal in light of the evidence on record wherein oral evidence of four witnesses of claimant C.W. 1 Vishwanath Choudhary, C. W. 2 Ramjhari Devi, C. W. 3 Ranglal Mahato and C.W. 4 Ram Chandra Manjhi have been tested in the light of the documentary evidence such as Ext. 1, a copy of first information report, Ext. 2, charge-sheet of criminal case, Ext. 3 post-mortem report, Ext. 4 challan -6- forwarding the dead body for post mortem, Ext. 5 inquest report, Ext. 6 order granting bail to the appellants by the criminal court, Ext. 7 voter identity card of the deceased and Ext. 8 death certificate and their comparative evaluation has also been made by the Tribunal while examining of oral deposition of three witnesses of the appellants namely O.P.W. 1 Jita Sah, O.P.W. 2 appellant no. 1 himself and O.P.W. 3 appellant no. 2 and their documentary evidence, Ext. A and B being the same FIR and charge-sheet which are Exts 1 and 2 filed by the claimant, Ext C order-sheet of criminal case, Ext. D certificate issued by Dy. Superintendent Hathwa hospital and Ext. E and E/1 prescription of Dr. Arun Kumar and Ext. F X-ray plate of appellant no. 2. The Tribunal on the basis of analysis of aforesaid evidence on record has held the appellants liable to pay compensation by recording a finding of fact that the death of husband of the respondent no.1, claimant was caused on account of accident taking place due to rash and negligent driving of the motorcycle by the appellant no. 2 by recording following findings:-

"18. I on careful examination of documentary evidence as adduced on behalf -7- of the claimant and the O.Ps. and also considering the oral evidence adduced on behalf of the claimant and the O.Ps. I find that in written statement O.Ps. have submitted in para-3 of written statement that Rang Lal Mahato, Ram Chandra Manjhi, Yugal Kishor Das, Vidya Ram and Jitu Sah had visited the place of accident and the I/O of the case examined them but from the record, I find that out of this witness, Ranglal Mahato and Ram Chandra Manjhi have been examined on behalf of the claimant and having fully supported the case of the claimant, they have deposed before the Tribunal that motor-cyclist who is O.P. No.

2 in this claim case dashed the cyclist and the cyclist fell down and later on he died in the hospital. O.Ps. have examined Jitu Sah, But this witness in para-6 of his cross-examination states that he had no meeting with the police till the date in respect of the alleged accident. From the entire evidence of this O.P.W. 1, I find that he had not in fact seen the accident. Because he deposed in para-1 of his testimony he was at his Bathan and both the cyclist as well as the motor cyclist had become unconscious and in para-2 this witness deposes that Choukidar had come after half an hour which is certainly absurd and against the materials available on the record not only the oral evidence as available on the record but also from the documentary evidence, because there are consistent evidence of two witnesses who are C. W. 3 and 4. Apart from evidence of these two witnesses, C. W. 1 on whose -8- statement Mirganj P. S. case No. 35 of 1997 was registered very clearly deposes in his testimony that accident occurred in his full view and motor-cyclist dashed the cycle of the decd. He has very categorically deposed and also stated in his cross-examination about the manner of accident. The ld. Cross-examiner has tested the evidence of this witness on the point of manner of accident and also satisfied on this point that in fact how the accident occurred.

Apart from this, the dictum res ipsa loquittor certainly goes against the O.Ps. because the circumstance tells itself that how the accident occurred and at the time of accident as to whether a jeep was passing through the said passage particularly at the time of accident is not so and thus I find that the accident had taken place as alleged by the claimant because the motor cyclist was going with pillion rider and dashed the cyclist and on account of that cyclist fell down and he was removed to the hospital where he succumbed to his injuries. C. W. 1 in para- 6 and 12 of his cross-examination has stood to his cross-examination and evidence of C.W.1 has not been shaken and the credibility of this witness remained intact so far evidence on accident is concerned and thus I find that there is admission on the part of the O.Ps. that on the alleged date, time and place of occurrence O.P. No. 2 was going on offending motor-cycle though at the time of accident registration number was not on the motor-cycle and later on -9- registration number has been alleged/given. It has also been admitted by the O. P. that the decd. was also going on a cycle. So there is admission on the part of the O.Ps. that the decd. Shankar Choudhary was going on his cycle whereas O.P.No. 2 Gouri Shankar was going on his motor-cycle with a pillion rider but a twist has been given by the O.Ps. and the stand of the O.Ps. is this that the cyclist as well as the motor- cyclist were dashed by a commander jeep. In para 7 of WS it has been submitted that O.P. No. 1 was driving motorcycle but he as OPW 2 has not said so.

But from the entire evidence I find that the case of the claimant is very consistent on this point that the cyclist was going on his cycle and he was dashed by the motorcyclist. Both the cycle as well as the motor-cycle are two wheel vehicles and therefore, after dash both the cyclist and the motor-cyclists had fallen down and sustained injuries. The motor-cyclist was driving his motorcycle rashly and negligently and a severe jolt was given and therefore, the cyclist sustained such injuries which snatched his valuable life. Ext. A and 1, 3, 4, 5 and 6 go to show that the decd. was dashed by offending motor- cycle and due to negligence and rash driving of O.P. No.2 accident took place, wherein I find no doubt because the manner of accident has also been to such a substantial extent has been mentioned in Ext. 1 and A from which, it transpires that there was no any third vehicle involved in the alleged accident. The claimant has

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shown the manner of accident in simple and in view of the admitted position onus to prove the manner of accident as alleged by the O.P. shifted on the O.Ps. because the claimant has discharged her onus and it is now on O.Ps. to prove that there was commander jeep involved in causing the accident which has not been discharged. The reason behind saying it is this that the distance of cyclist and motor-cyclist has not been shown and also it has not been shown that from which way commander jeep was coming and how the driver of the jeep dashed both of them the cyclist as well as the motor-cyclist. It has not been shown to the Tribunal that cyclist and motor-cyclist were going on side by side or how they were proceeding one behind another. In other words who was ahead motorcyclist or cyclist and which of them was dashed first. From the entire evidence, I find nothing so that a jeep had dashed cyclist as well as motor- cyclist. Therefore, on consideration of documentary evidence as well as oral evidence and also taking into consideration Ext. 3 and 5, I find nothing so that cyclists was dashed by commander jeep. Hence I find no force in the contention of the ld. Counsel for the O.Ps. that the cyclist was hit by commander jeep. The C.Ws. 1 and 4 have deposed about the true facts and it has not been shown that why they are deposing against the O.Ps. So, considering all the facts and circumstances of the case and also the evidence adduced on behalf of the respective parties and considering the submissions. I find that

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the claimant has succeeded in establishing the manner of accident, time and place of accident and the O.Ps. have led evidence against para 7 pleading of WS wherein have said that O.P. No. 1 was driving motorcycle hence not acceptable and accordingly, I find that the deceased Shankar Choudhry was going on cycle on 7-2-97 at about 11.00 A.M. and when he reached Barawa Kaparpura village, motor-cyclist O.P. No. 2 dashed the cycle of the decd. Shankar Choudhry and Shankar Choudary fell down and became unconscious and he was removed to hospital where he died and therefore, I find that the claimant has got valid cause of action for the present claim case and decd. Shankar Choudhry has died in a motor- vehicle accident arising out of use of offending vehicle bearing Reg. No. UP 52-B- 2547 which was being driven rashly and negligently by O.P. No. 2 as alleged by the claimant and hence I find and hold that the claimant has established both the issues in her favour and accordingly they are decided in her favour and against the O.Ps. holding liable for the accident to O.P. No. 1, who is owner of the motor-cycle."

Counsel for the appellants however while assailing the aforesaid findings recorded by the Tribunal has concentrated on the aspect that when the police had already held that accident in question had taken place by a jeep involving both the riders of motor-cycle and the bicycle and

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consequently the first information report filed by village Chaukidar of Mirgang P. S. Case No. 35 of 1997 was found to be false in form of submission of final form by the police absolving the appellants, which further stood affirmed in the order of learned magistrate accepting the final form, the Tribunal ought not to have made any departure merely on the ipse dixit on the basis the oral deposition of that very informant of the police case, Vishwanath Chaudary (C.W. 1) or two other alleged eye witness Rang Lal Mahato (C.W. 3) and Ram Chandra Manjhi (C. W. 4) whose version of the accident being on account of rash and negligent driving of motor-cycle had been found to be false by the police as was also supported before Tribunal by another eye witness of the accident being Jita Sah, O.P.W. 1.

In sum and substance, counsel for the appellants was of the view that once the police had found the criminal case to be false and the allegations made in the FIR to be incorrect, there was no scope for the Tribunal to take a different view and to that extent some sort of finality was also sought to be attached to the order of magistrate dropping the criminal proceeding by way

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of acceptance of final form arising out of Mirganj P. S. Case No. 35 of 1997.

In the considered opinion of this Court such argument as with regard to whittling down the powers of the Tribunal to reach to its own conclusion on the basis of evidence on record by pressing reliance on the finding of the police in an investigation leading to submission of final form even its acceptance in terms of power under Code of Criminal Procedure cannot be accepted as it is well settled that it is a judgment of Civil Court which would bind a criminal court and not vice versa. More over in the present case there is no finding of the court rather only final form has been accepted which also appears to be done without service of notice and hearing to the informant, village Chaukidar or to the members of the family of the deceased as is the requirement of law. In that view of the matter this court would not be in a position to attach any finality to the so-called closure of investigation by the police holding the appellants to be not criminally liable for being prosecuted and sentenced for the accident in question specially when it is an admitted fact as recorded by the Tribunal that the

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learned Magistrate while accepting final form did not ensure issuance of service of notice on the informant and follow the procedure as laid down by the Apex Court in the case of Bhagwant Singh vs. Commissioner of Police, reported in AIR 1985 SC 1285 which cast a mandatory duty on the magistrate deciding not to take cognizance of an offence or to drop proceedings of a criminal case instituted by way of a police case to give notice and hear the informant. In any event, an order of discharge from criminal liability cannot be equated to be one as judgment of acquittal by criminal court and therefore this Court cannot attach any importance to the submission of final form by the police in Mirganj P. S. Case No. 35 of 1997.

An issue adjudicated by civil court in its judgment, which the Tribunal under the Act is, would be in fact binding on the criminal court and to that extent Section 43 of the Evidence Act also takes full care of relevance of such judgment of criminal court as was held by this court in the case of Ramadhar Chaudhary vs. Janki Chaudhary, reported in AIR 1956 Patna 49 and reiterated in the case of Badri Narain Prasad @ Badri Prasad vs. Anil Kumar Gupta and another, reported in 1979

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BLJR 348 laying down a law that the judgment of criminal court is not at all binding on a Motor Accidents Claim Tribunal and a judgment of a criminal court is admissible to prove only who the parties to the dispute were and what order was passed therein.

In the background of the aforementioned settled position in law if this court would examine and reappraise the evidence on record, it would find that the depositions of three witnesses of the claimant, respondent no. 1 had wholeheartedly supported the entire case of her husband being hit by rash and negligent driving of the motor-cycle by the appellant no. 2. It has to be noted that the presence of these three witnesses, C. W. 1, C. W. 3 and C. W. 4 at the spot at the time of accident was also admitted by the appellants in their written statement. This Court, therefore, would find it difficult to dislodge the oral testimony of C.W. 3 and C. W. 4 once their evidence is analysed as a whole. It has also to follow that what they said about the reporting of the said occurrence to the police by CW 1, village chaukidar lodging first information report is also true and correct. C.W. 1 in his

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evidence has supported the fact that he was not only an eye witness but had also seen a speeding motor cycle coming from Hathwa side to Mirganj side to have dashed the husband of respondent no. 1 coming from Mirganj side and going towards Hathwa side at the confluence of village Barawa Kaparpura. In fact, this aspect of the matter as with regard to occurrence in question taking place in broad day light about 10 a.m. in the morning stands fully supported by oral evidence of C.W. 1 who had carried the injured, husband of respondent no. 1 to the dispensary where first information report was recorded. Any enmity on the part of village chaukidar towards the appellant is also ruled out because he had also carried appellant no. 2 and pillion rider to the same dispensary for their first aid treatment as they also had received some minor injuries in the said accident. Thus, if the husband of respondent no. 1 had died in the dispensary itself in course of treatment, the son of the appellant no. 1 being appellant no. 2 was fortunate to save himself on account of his being treated in posh nursing home of a private doctor that by itself could not lead to an inference that no accident in the manner alleged

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by C.W. 1 had ever taken place.

This court is fully satisfied that the story of accident by another jeep was actually subsequently introduced at the influence of appellant no. 1, a government servant, holding the post of Ranger only to avoid the liability of payment of compensation and to that extent evidence adduced by the appellants did not bring any such revealing fact which could establish that the accident had taken place by another jeep. The only person brought forward by the appellants as an eye witness is O.P.W. 1 Jita Sah, whose truthfulness has immediately been exposed in his cross-examination when he has stated that he never met the police nor the police had recorded his version as with regard to the accident. As a matter of fact, when he has stated in his deposition that appellant no. 2 on motor cycle with pillion rider was going from Hathwa side to Mirganj side and the deceased, husband of respondent no. 1 was going from Mirganj side to Hathwa side and the jeep was coming from Mirganj side to Hathwa side, he has not only tried to change the entire manner of occurrence but has also contradicted the appellants‟ vision in the

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written statement who had categorically stated that both motor cyclist and cyclist were going from Mirganj side to Hathwa side and the speedy jeep coming from opposite direction had hit both of them simultaneously. As to how far even that version in the written statement of the appellant is correct, can be found out from a new story introduced by the father, appellant no. 1 who in the written statement in paragraph 7 had tried to take a plea it was he who was driving the motor cycle and his son was the pillion rider, a fact which has not at all been supported by any one nor is even corroborated from any injury on the person of the appellant no. 1. The absence of injury on pillion rider, the gravity of injury on the person of the deceased, husband of respondent no. 1 and minor injury on the person of the appellant no. 2 are by themselves sufficient to bulldoze the entire story of accident by a jeep and its actually taking place in the manner alleged by claimant, widow of the deceased and supported by their witnesses C.W. 1, C.W. 3 and C.W. 4.

All these materials taken together therefore would go to show that the accident in question had taken place in the manner alleged by

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the claimant, respondent no. 1 in her claim petition which has been proved by her successfully and the onus taken on themselves by the appellants to prove otherwise with regard to the accident in question taking place by the jeep has not at all been discharged by them from any evidence either oral or documentary.

The Tribunal has therefore rightly held that the dictum of res ipsa loquittor certainly goes against the appellants because all the circumstances leading to one and only one conclusion that the accident in question had taken place on account of rash and negligent driving of motor cycle hitting the husband of respondent no.

1. The doctrine of res ipsa loquittor which is not a principle of liability but a rule of evidence has been beautifully summed up by Winfield on Tort, 7th Edition, at page 196 in the following terms:-

"It possesses no magic qualities; nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin'. When used on behalf of a plaintiff it is generally a short way of saying: I submit that the facts and circumstances which I have proved establish a prima facie case of negligence against the defendant. It must depend upon all the individual facts and the circumstances of the particular case whether this is so."

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The evidence on record as noted above specially when all C.Ws. 1, 3 and 4 in the present case does fully bear out an inference establishing a strong prima facie case of negligence against the appellant no. 2, the driver of motorcycle which had hit cyclist, husband of respondent no. 1 on the fateful day leading to his death.

Having thus tested the main issue as with regard to the liability of paying compensation on account of accident taking place from the motor-cycle of appellant no. 1 being driven negligently by appellant no. 2, this court must hold that other issues raised by counsel for the appellants also are insignificant inasmuch as the non-joinder of the sons and daughter of respondent no. 1 as a party to the claim proceedings cannot be said to be fatal. Here is a case that the deceased had sons who had already settled and were separate in mess and business and his daughter was already married and therefore if they were not made party to the claim case that would not be fatal to the maintainability of the claim case specially when this fact was also no where raised in the written statement by the appellants. It has to be noted that in the written

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statement while the appellants have questioned the age, income and amount of compensation claimed by respondent no. 1 and have also stated with regard to deceased having three major sons and two daughters out of whom two sons are said to be earning members of the family, no plea has been raised with regard to their being not made party to the claim case. In any event, a widow like respondent no. 1 cannot be non-suited if she had in her evidence clearly stated that her sons and daughters are settled and on account of death of her husband it is she who has been robbed of her means and sustenance.

The reliance placed by counsel for the appellants on the provisions of proviso to Section 166(1) of the Act or a judgment of this Court in the case of Govind Sao and Anr. Vs. Surjit Singh Mahal @ Bhola Babu and Ors reported in 1998(2) BLJR 1425 is wholly misplaced. Here was a case where respondent no. 1 had initially filed an application under Section 140 and when an amount of Rs.50,000/- was awarded as interim compensation which was not paid to her and the same was further pressed for compensation in terms of section 166 of the Act and the Tribunal has

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recorded that the widow was solely dependent on the income of deceased whereas his sons or daughters were living separately and they had got sufficient income to maintain themselves. In that view of the matter, the Tribunal was perfectly justified in awarding compensation to the widow, respondent no. 1. Moreover one could have understood the meaning of such an objection with regard to non-joinder of parties at the instance of legal representatives of deceased as was in the case of Govind Sao (supra) but such an objection coming from and raised by the appellants, who have been held liable to pay the amount of compensation, must be held to be wholly frivolous.

The last issue raised by counsel for the appellants as with regard to approach of the Tribunal in applying structural formula in Schedule 2 to the Act also seems to be misconceived. Counsel had in fact submitted that the claim was decided under Section 166 of the Act and therefore the tribunal could not have made the structural formula the basis for awarding compensation inasmuch as such structural formula could be applied only in compensation arising out of case under Section 163 (A) of the Act. Counsel

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has also relied upon a judgment of this court in the case of Most. Rajpati Devi and Ors vs. Ram Kumar Singh Anr. reported in 2003(3) PLJR 693. This Court however upon examining the material on record would find that the court below has not actually applied the structural formula rather it has gone to assess the income of the deceased and there too it has discarded part of the claim of respondent no. 1 as with regard to the deceased having income from selling milk. To that extent the tribunal has assessed the income of the deceased Rs.2000/- per month from the agricultural sources whereas respondent no. 1 in her claim petition had claimed the income of her husband to be Rs.5000/- per month and also in her deposition had gone to extend to Rs.6000/- per month by taking a plea of his income by various sources including agriculture and by way of sale of milk. The Tribunal however after calculating the income of the deceased on the basis of Rs.2000 per month and also after scaling down one-third thereof as expenses which the deceased could have spent to maintain himself had he been alive, has proceeded to fix annual income of the deceased to Rs.16000/- per annum and has applied the multiplier of 11 by

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determining the age of deceased 50 to 55 years. Counsel in fact has not questioned the multiplier of 11 inasmuch as the Tribunal had not accepted the age of deceased to be 46 years on the ground that claimant, widow was herself around 50 years of age on the date of her deposition. In that view of the matter, this court would also not find any error in the manner of calculation and the reliance placed by counsel for the appellants on the judgment of this court in the case of Most. Rajpati Devi (supra) far from supporting him goes against him inasmuch as this Court in that case law had applied a multiplier of 16 by holding monthly income of the deceased of that case to be Rs.900/- per month.

A conjoint reading of Section 166, 140 and 163 (A) of the Act in fact would bear it out that no fault liability envisaged under Section 140 of the Act is distinguishable from rule of strict liability where compensation amount is fixed and is payable even if any one of the exception to the rule can be applied. The compensation paid under Section 140 on no fault liability can be deducted from the final amount under Section 166 as apart Section 140, a victim

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is entitled to get compensation under Section 166 of the Act from the Tribunal unless one of the exceptions would apply. The Tribunal is in fact bound to decide under Section 140 of the Act for grant of interim compensation notwithstanding claimant has filed any other applications under Section 166 or under any provisions of the Act. The purpose of legislative in introducing Section 163(A) of the Act is to only expand the scope of Section 140 of the Act inasmuch as as soon as data is provided under Section 163 (A), the Tribunal can decide compensation on the basis of predetermined structural formula and that too instantly and expeditiously to give instant reliefs. So far as the pecuniary loss is concerned, the multipliers are arrived and provided with a view to have consistency under Section 163 A based on no fault liability wherein only pecuniary and general damages are awarded while under Section 166 based on fault liability special damages can be awarded.

In the present case, therefore when the Tribunal had initially awarded interim compensation under Section 140 of the Act and ultimately after deciding the liability of the

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appellants also adjudicated the amount of compensation under section 166 of the Act, it cannot be said that the Tribunal had taken recourse to the special provision under Section 163(A) of the Act.

Thus, on an overall analysis and review of the evidence on record this Court would must held that both the appeals are without any substance and they are fit to be dismissed.

Reverting back to the issue of payment of amount of compensation by the appellants to respondent no. 1, this court would find that the appellants have successfully kept respondent no. 1,the widow deprived from getting any amount of compensation either interim or final till date even after twelve years of the death of her husband which only go to show as to how a helpless rustic claimant has been made to suffer in the hands of a mighty powerful person like the appellant no. 1 holding the post of RANGER in the government service, for last twelve years. The appellants have been successfully evading their such liability, which they could have met on their own volition in view of the admitted fact that on account of rash and negligent driving of

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motorcycle by appellant no. 2, within ten days of buying a new motor-cycle had taken away the precious life of husband of respondent no. 1 leaving appellant no. 2 with some minor injuries. Had therefore the good sense prevailed on the appellant no. 1, he could have partly washed off the sins of his son even without contesting a meaningless litigation but then never-say-died is the rule of the game for the mighty affluent class of people when they have to meet the genuine cause of poor and downtrodden. Obviously this Court while examining the respective pleas of the parties against the impugned judgment dated 7.5.2004 and consequential award dated 24.6.2004 in M. V. Case No. 11 of 1997 must hold that the act of the appellants of denying the interim compensation to respondent no. 1 to be mala fide and consequently making them liable to pay the full amount of interim compensation with additional interest. The appellants have therefore successfully deprived respondent no. 1 from getting any amount of compensation in last eight years initially, a sum of Rs.50,000/- by way of interim compensation by filing M. A. No. 216 of 2001 and not paying the same despite rejection of

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their prayer of stay of payment of amount of interim compensation as also the fact that this court in the ultimate analysis has not found any error even in the final compensation awarded by the Tribunal, which is subject matter of M.A. No. 296 of 2004, it must while dismissing both the appeals direct the appellants to pay additional interest of four percent upon accepting the submission of counsel for respondent no. 1 that for all this period respondent no. 1 had to remain without any support despite the order of the Tribunal awarding interim compensation of Rs.50,000/- way back in its order dated 23.4.2001.

Counsel for respondent no. 1 has also referred to the uncontroverted statement in paragraph 14 of his counter affidavit to assert that not a single paisa had been paid to respondent no. 1 till date and even Rs.25000/- deposited with both the appeals were not handed over to respondent no. 1. Considering all these aspects, this court would find the present case to be a fit case where rate of interest of 8 percent awarded by tribunal should be enhanced to 12 per cent per annum from the date of application i.e. 5.5.1997 to the date of realization (instead of

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eight per cent from October 2001 to the date of realization). In other words, the appellants shall be liable to pay the amount of interest at the rate of 12 per cent per annum on the amount of Rs.1,85,500/- from 5.5.1997 to date of realization keeping in view that respondent no. 1 had been made to suffer only on account of defiant attitude and protracted meaningless course of litigation choosen by the appellants and thus this court, applying the principles of O. 41, R. 33 of the Code of Civil Procedure primarily conferring a power on the appellate court to do justice by granting relief to a party who is under appeal considers it fit to allow the oral prayer of counsel for respondent no. 1 and would accordingly enhance the amount of interest from 8 per cent to 12 per cent in the manner indicated above i.e. from the date of filing of the claim petition by respondent no. 1 till the date of its realization.

With the aforementioned observations and directions, both the appeals are dismissed with the cost of Rs.5000/- each i.e. Rs.10,000/- in all.

Let original records received from the court below be also sent back forthwith for

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enabling the Tribunal to take expeditious steps for recovery of amount from the appellants in accordance with law. The Tribunal is directed to ensure that steps are taken immediately for realization of amount which would now become payable by the appellants to respondent no. 1 in terms of present judgment. Office of this Court is also directed to pay the amount of Rs.25000/- each deposited by the appellants at the filing of both the appeals to counsel for respondent no. 1, if not already paid.

(Mihir Kumar Jha, J.) Patna High Court Dated the 16th Oct 2009 Kanchan/A.F.R.

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