Patna High Court
Poonam Devi & Ors vs Pawan Kumar Patwari & Ors on 2 March, 2012
Author: Shailesh Kumar Sinha
Bench: Shailesh Kumar Sinha
Patna High Court MA No.375 of 2005 dt.02-03-2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.375 of 2005
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1. POONAM DEVI WIFE OF LATE SHAILENDRA KUMAR SINGH.
2. AMIT KUMAR SINGH (MINOR) SON OF LATE SHAILENDRA KUMAR
SINGH
3. AJIT KUMAR SINGH (MINOR) SON OF LATE SHAILENDRA KUMAR
SINGH
4. SUPRIYA KUMARI (MINOR) DAUGHTER OF LATE SHAILENDRA
KUMAR SINGH
5. URMILA DEVI WIFE OF KALI CHARAN SINGH
(APPEALLANT NOS. 2 TO 4 ARE MINORS AND ARE REPRESENTED
THROUGH THEIR MOTHER WHO IS LEGAL AND NATURAL GUARDIAN
) ALL RESIDENT OF VILLAGE ALIPUR (SANJHA) P.O. NAWADA, P.S.
RAJOUN, DISTRICT - BANKA
(CLAIMANT NOS. 1 TO 5 IN THE COURT BELOW)
.... .... Appellant/s
Versus
1. PAWAN KUMAR PATWARI SON OF SRI PRABHU DAYAL PATWARI
RESIDENT OF PERMANENT ADDRESS - BHAGALPUR DUMKA ROAD,
DISTRICT DUMKA AT PRESENT LOHIYA NAGAR, GODDA DISTRICT -
GODDA ...... OWNER OF THE BUS NO. BR -36-9981.
2. MD. MUSTAKIM ANSARI SON OF ABDUL HAMID ANSARI, RESIDENT
OF VILLAGE HASDIHA, P.O/P.S. HASDIHA DISTRICT DUMKA ....
DRIVER OF BUS NO. BR-36-9981.
3. THE ORIENTAL INSURANCE CO. LTD. DUMKA DISTRICT DUMKA ...
INSURER OF THE BUS NO. BR-36-9981
4. THE ORIENTAL INSURANCE CO. LTD. BHAGALPUR
(OPPOSITE PARTY NO. 1 TO 4 IN THE COURT BELOW)
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. VIVEKANAND VIVEK, ADVOCATE
For the Respondent/s : Mr. RANDHIR KUMAR SINGH, ADVOCATE
MR. BARUN KUMAR CHOUDHARY, ADVOCATE
MR. SUSHMA SARAN, ADVOCATE
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CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA
ORAL JUDGMENT
Date: 02-03-2012 This appeal is directed against the judgement and award dated 22nd June 2005 passed by the in claim case No. 5 of 1998 whereby exercising the power of the Motor Vehicle Accident Claims Tribunal, whereby the claim of appellant Nos. 1 to 5 Patna High Court MA No.375 of 2005 dt.02-03-2012 having been dismissed by the IVth Additional District Judge, Bhagalpur, hence the present appeal is preferred.
The short facts are that the husband of the appellant, namely, Shailendra Kumar Singh while travelling in the bus from Baskinath to Bhagalpur bearing Registration No. BR- 36-9981. The bus when reached near Tarapatti Kadarsa within the Banka (Barahat) Police Station, District - Banka on account of sudden break applied by the bus driver, the gate of the bus which was driven in a rash and negligent manner got open and the husband of the appellant no. 1 who was sitting on the seat near the gate was thrown out resulting into the serious injury and in course of treatment he died. The First Information Report was lodged vide Banka (Barahat) P.S. Case No. 331 of 1997 under Section 279 and 338 of the Indian Penal Code at the report of the Chowkidar, namely, Anil Paswan. The post mortem report of the deceased was held in the hospital. The claimants after performing the rituals filed the aforesaid claim case on claiming compensation of Rs. 2,30,000/- asserting that the deceased was doing the vegetable business and was earning Rs. 2,500/- per month. In support of the claim, the claimants filed the certified copy of the First Information Report, Post mortem Report and the insurance policy which were marked as Exhibit 1,2 and 3. The witnesses were examined. The claimants as also the co-passenger, who were the eye witnesses supported the claim of the applicants as also the manner of the accident. The Tribunal on considering the oral Patna High Court MA No.375 of 2005 dt.02-03-2012 evidence as also the documentary evidence came to the conclusion that since the eye witnesses in their evidence with respect to the place of occurrence given by them were not consistent with the boundary of the place of occurrence given by the Chowkidar in the first information report accordingly, disbelieved the evidence of the eye witnesses. The claim case was as such, dismissed.
Learned counsel for the appellants submits that the claim of the appellants were rejected without valid justification for the reasons that the evidence of the claimant witnesses namely, P.Ws. 1 and 5 who were co-passenger have categorically said in their evidence that the deceased was inside the bus sitting on the seat adjacent to them, however, on account of the sudden break applied by the driver of the vehicle which was being run by him in a rash and negligent manner, the gate of the bus opened and the deceased who was sitting near the gate, was thrown out from the bus, sustained serious injuries to which he succumbed in course of the treatment. It is further submitted that the deceased who was doing the vegetable business was having monthly income Rs. 2,500/-. Besides the age of the deceased stated to be 32 years which has come in the evidence of the wife of the deceased as also the other witnesses C.Ws - 2 and 5. Accordingly, it is submitted that the court below dismissed the claim application without valid justification, hence the order under appeal deserves to be set aside.
A supplementary counter affidavit has been filed on Patna High Court MA No.375 of 2005 dt.02-03-2012 behalf of the respondent nos. 3 and 4 stating therein that since no proof of income of the deceased was produced in the court below therefore, for the purpose of compensation, the deceased income would be taken on the basis of notional income and on such calculation and after making the necessary statutory deduction on account of the personal expenses, the total compensation amount arrived at Rs. 1,70,000/- as stated in paragraph -6 of the supplementary counter affidavit. It is further stated that since the deceased was sitting on the roof of the bus and fallen down on the road resulting into his death, a compensation of 50 per cent under the notional income in such cases could be paid accordingly the claimants can get a compensation of Rs. 85000/-. The learned counsel otherwise support the order under the appeal.
Considering the rival submissions of the parties, it would appear that in this appeal, the stand of the Insurance Company is that if at all the maximum compensation is payable, the same can be paid to the extent of 50 per cent as calculated in its supplementary counter affidavit. The claimants in support of their claim has brought on the record, the First Information Report, Post Mortem Report as also the insurance policy of the offending vehicle which were exhibited as Exhibit 1,2 and 3. Besides the above, documentary evidence and oral evidence of witnesses were brought on the record. On perusal of the evidence of claimant witness no. 1, who claimed to be the eye witness has supported the occurrence, who stated that the deceased was Patna High Court MA No.375 of 2005 dt.02-03-2012 sitting adjacent to him inside the bus and also stated that the Bus was being driven in a rash and negligent manner. The witnesses of the claimant including the wife of the deceased assessed that the age of the deceased as 32 years. The claimant witness no. 2 has stated about the monthly income of the deceased as also the age. The wife of the deceased has been examined as CW 3, who has stated that her husband was having monthly income of Rs. 2800/- to 3000/- per month. CW 4 is the father of the deceased who has stated that his son was aged about 30-32 years and was having monthly income of Rs. 3000/- . Another witness namely, Chamak Lal Pandit, an eye witness being a co- passenger has supported the case of the claimants with respect to the accident in which it has been stated that the deceased was sitting inside the bus . During the cross-examination, on being asked, the witnesses have given the boundary of the place of occurrence. From the evidence on the record, the fact of the occurrence is established. The question whether the deceased was travelling on the roof or inside the bus, according to the eye witnesses, they categorically stated that the deceased was sitting inside the bus on the seat near the gate and on sudden application of the break by the driver of the vehicle in question which was being run in a rash and negligent manner, the gate of the bus got opened and the deceased was thrown out on the road sustained severe injury resulting into his death. As regards income, the claimant witnesses had stated that the deceased having monthly income of Rs. Patna High Court MA No.375 of 2005 dt.02-03-2012 2,500/-, however, no documents were brought on the record. Learned counsel for the appellants, accordingly, submits that the Tribunal dismissed the claim on mere technicality of having discrepancy in the boundary as given by the witnesses with respect to place of occurrence and boundary as mentioned in the Fardbeyan of the Chowkidar.
In the opinion of the court, the passenger in the bus not familiar of the area may not have a specific knowledge of the boundary of the place of occurrence in course of their journey and as such, the whole claim cannot be thrown out for want of such knowledge. It is well settled that in appreciating the evidence of the witnesses while considering the accident claims appreciation of the evidence should receive liberal consideration since the claim for compensation arises out of beneficial legislation.
In view of the evidence of eye witnesses with respect to the manner of occurrence as also the evidence on the question of income, the order under appeal cannot be sustained in law, the same is accordingly set aside. This Court holds that the income of the deceased be taken as 2000/- per month and the age of the deceased be taken as 32 years. The Award be accordingly prepared after making a deduction of ¼th (one fourth) on account of the personal expenses since the deceased leaving behind in total five (5) dependants and applied the multiplier by 16 in the light of decision in the case of Sarla Verma Vs. Delhi Transport Patna High Court MA No.375 of 2005 dt.02-03-2012 Corporation and Others as reported in 2009 (6) SCC page 121 Para- 30. The aforesaid amount be paid by the respondent (Oriental Insurance Company Limited) within a period of three months with interest at the rate of 6 percent after the preparation of Award from the date of filing of the application till payment. The modified award be prepared without delay.
The Lower Court Records be send down forthwith. Accordingly, the appeal stands allowed as indicated above. No costs.
Patna High Court, Patna (Shailesh Kumar Sinha, J) Date - 02.03.2012 N.A.F.R/Jagdish