Municipal Commissioner And Ors vs Pabitra Singh Kami And Ors

,

Meenakshi Madan Rai, J",

The learned Motor Accidents Claims Tribunal, East Sikkim at Gangtok (hereinafter ,learned Tribunal’) vide the impugned Judgment dated",

28.07.2017, in MACT Case No. 27 of 2016 (Mrs. Pabitra Singh Kami and Another v. Municipal Commissioner, Gangtok Municipal Corporation and",

Others) directed payment of compensation of Rs.17,29,380/- (Rupees seventeen lakhs, twenty nine thousand, three hundred and eighty) only, to the",

Respondents No. 1 and 2 (Claimants No. 1 and 2 before the learned Tribunal) by the Appellant No. 1 (Opposite Party No. 1 before the learned,

Tribunal) along with interest fixed thereon. Aggrieved thereof the Appellants No. 1 and 2 are before this Court.,

A motor vehicle accident occurred on 04.07.2015 at a place known as “32 Number,†whereby a commercial vehicle bearing No. WB-76-7946",

(Tata Sumo, Gold), driven by the deceased from Gangtok to Siliguri, allegedly hit a parapet and a telephone pole on the left side of the road and was",

thereafter struck from behind by the Truck bearing No. SK-01-D-2807, driven by the Appellant No. 2 (Opposite Party No. 2 before the learned",

Tribunal). This caused the Sumo to careen off about 100 feet below the road, leading to the instantaneous death of the deceased. Respondent No. 1,",

wife of the deceased and Respondent No. 2, his daughter claimed compensation of Rs.20,04,386/- (Rupees twenty lakhs, four thousand, three hundred",

and eighty six) only.,

Before the learned Tribunal, the Appellants No. 1 and 2 (Opposite Parties No. 1 and 2, therein) vehemently denied the claims of the Respondents",

and averred that the accident occurred solely on account of the fault of the deceased. Neither was the vehicle of the Appellant No. 1 involved in the,

alleged accident nor was the Appellant No. 2 responsible for rash and negligent driving or the death of the deceased.,

The Respondent No. 3 averred inter alia that the cause of accident and the death of the victim was the outcome of the rash and negligent driving on,

the part of the Appellant No. 2, who failed to maintain a safe braking distance. Besides the deceased was the owner of the vehicle and being the",

Insured did not come within the ambit of Third Party and hence could not be compensated.,

The learned Tribunal after due consideration of the pleadings struck one issue for determination viz.,

“(1) Whether the Claimants are entitled to the compensation claimed? If so, who is liable to compensate them?â€​",

On consideration of the entire evidence on record and the documents furnished before it, the learned Tribunal pronounced the impugned Judgment",

granting the compensation supra to the Respondents No. 1 and 2.,

Before this Court, learned Counsel for the Appellants put forth the contention that it is doubtful as to whether the deceased was a kin of",

Respondents No. 1 and 2 as Exhibit 2, the First Information Report (for short ,FIR’) lodged by one Ratan Pradhan before the Police Inspector,",

Singtam Police Station mentioned the name of the deceased as “Chaman Diyali†and not “Harka Raj Biswakarma†the person the,

Respondents No. 1 and 2 claim is their kin and finds place in the Claim Petition. The name of the deceased on Exhibit 12, the Income Tax Return",

Verification Form, allegedly of the deceased also differs. That, the name of the deceased in the Property Seizure Memo Exhibit 3, the Inquest Report",

Exhibit 4, the Death Certificate Exhibit 8, Driving Licence Exhibit 9 and the PAN Card Exhibit 10, all vary, consequently raising doubts on the very",

identification of the deceased. It was next contended that although the accident occurred on 04.07.2015, Exhibit 12 is dated 03.11.2015 much after the",

accident, thereby raising doubts on the income of the deceased. Besides, the Claim Petition has been filed under Section 166 of the Motor Vehicles",

Act, 1988 (for short the ,M.V. Act’) with no proof of rash and negligent driving on the part of the Appellant No. 2 who was in fact acquitted of",

charges under Sections 279, 336, 337, 338 and 304 A of the Indian Penal Code, 1860 (for short the 'IPC') by a Magisterial Court. That the accident",

occurred on account of the deceased overspeeding and overtaking the vehicle of the Appellant No. 2 and thereby due to his own fault, hence, the",

Appellant No. 1 could not be held liable to pay compensation. Towards this submission reliance was placed on Surendra Kumar Arora and Another v.,

Manoj Bisla and Others (2012) 4 SCC 552, Minu B. Mehta and Another v. Balakrishna Ramchandra Nayan and Another (1977) 2 SCC 44 1and",

Oriental Insurance Co. Ltd. v. Meena Variyal and Others (2007) 5 SCC 428. The next argument advanced was that although the allegation of the,

Investigating Officer (for short ,I.O.’) in the Criminal Case was that the vehicle of the Appellant No. 1 hit that of the deceased, sans Mechanical",

Report, thus rendering the allegation inconsequential. That, the statements of the passengers in the ill-fated vehicle recorded under Section 161 of the",

Code of Criminal Procedure, 1973 (for short ,Cr.P.C.’) in the Criminal Case did not reveal that the Truck hit the Sumo from behind. Hence, in",

view of the afore detailed circumstances, the findings of the learned Tribunal is perverse and deserves to be set aside. To bolster his contentions",

reliance was placed on Nishan Singh and Others v. Oriental Insurance Company Limited through Regional Manager and Others (2018) 6 SCC 765,

and Cholamandalam General Insurance Co. Ltd., through Regional Manager v. Smt. Badami and Others MANU/RH/0525/2018.",

Per contra, learned Senior Counsel for the Respondents No. 1 and 2 while disputing the contentions of learned Counsel for the Appellants No. 1",

and 2, walked this Court through the evidence of the Appellant No. 2 and contended that it was the driver, Appellant No. 2 no less, who had admitted",

his complicity in the accident. This was substantiated by the evidence of the Respondent No. 2. In light of the admission of the Appellant No. 2 the,

contention of the Counsel for the Appellants concerning absence of rash and negligent driving is contradicted. The I.O. discovered that the front of the,

Truck had sustained damages which sufficed as proof of the accident having been caused by it. Exhibit 3, the Property Seizure Memo prepared in",

connection with the Criminal Case fortifies that the front right side of the truck was damaged lending credence to the fact of accident and proof of,

rash and negligent driving of Appellant No. 2. The fact of the accident is also supported by Exhibit 2, the FIR pertaining to the incident. That, this",

Court in Branch Manager, Reliance General Insurance Company Limited v. Sa-Ngor Chotshog Centre and Another MANU/SI/0013/2019 has held",

that a conviction recorded by a Criminal Court is enough to hold that the driver had driven the vehicle rashly and negligently but his acquittal, on the",

other hand, would be no ground to dismiss the claim petition. That, in Mangla Ram v. Oriental Insurance Company Limited and Others (2018) 5 SCC",

656 the Hon’ble Supreme Court has observed that when the accused were to be acquitted in a criminal case, the same may be of no effect on the",

assessment of the liability required in respect of motor accident cases by the Tribunal. That, the differences emerging in the name of the victim on",

various documents has been clarified by Exhibit 21, the Affidavit sworn by Respondent No. 1 and relied on by Respondent No. 2 which remained",

undecimated in cross-examination. It was also contended that even if the party has failed to exhibit documents the claim petition cannot be dismissed.,

On this count, strength was garnered from Vimla Devi and Others v. National Insurance Company Limited and Another (2019) 2 SCC 18.6 That,",

non-examination of relevant witnesses is not an issue in matters under the M.V. Act and the evidence on record is to be analysed to ascertain,

whether it suffices to answer the issue raised as observed by the Hon’ble Supreme Court in Sunita and Others v. Rajasthan State Road Transport,

Corporation and Another AIR 2019 SC 994. However, on the computation of compensation learned Senior Counsel urged that in view of the decision",

in National Insurance Company Limited v. Pranay Sethi and Others 2017 (4) TAC 673, future prospects may also be granted on the income of the",

deceased and compensation under other heads may be modified in terms of the said Judgment.,

Learned Counsel for the Respondent No. 3 submitted that since the learned Tribunal has not ordered payment to be made by Respondent No. 3 he,

had nothing to add to the instant matter.,

I have heard in extenso and considered the rival submissions of learned Counsel for the parties. I have also carefully perused the impugned,

Judgment including the documents and evidence on record as well as the citations made at the Bar.,

The only question that arises for determination before this Court is whether there was any error in the findings of the learned Tribunal.,

Exhibit 2 is the FIR dated 04.07.2015, lodged by one Ratan Pradhan, an employee of the Sikkim Manipal University, informing that the same",

morning at around 5.20 a.m., the vehicle (Tata Sumo Gold bearing No. WB-76-7946) in which the Auditors of the University were travelling to Siliguri",

from Gangtok had met with an accident. At the spot he found that the Sumo had fallen into the river and one Truck bearing No. SK-01-2807 of the,

Gangtok Municipal Corporation was standing at a distance of about 100 feet away from the accident spot and the body of the deceased “Chaman,

Diyali†on the road side having been taken out from the river by the villagers. It was his summation that the Truck could have been instrumental in,

causing the accident as one side of the Truck was damaged.,

In this context, while addressing the doubts raised by the Appellants with regard to the identity of the victim caused by the variation of his name in",

different documents, I have examined the concerned documents. Undoubtedly the name of the victim in Exhibit 4 the Inquest Report, Exhibit 5 Challan",

forwarding the dead body for Post Mortem Examination and Exhibit 9 his Driving Licence, all record his name as “Harka Raj Biswakarma.†In",

Exhibit 8, his Death Certificate, it is recorded as “Harkaraj Singh (Kami)†while in Exhibit 10, his PAN Card, it is recorded as “Harkaraj Singh",

Kami.†Exhibit 11, the Certificate of Enlistment of the victim for his Tours and Travels Office also reflects his name as “Harkaraj Singh†leading",

to discombobulation. However, from the evidence of the Respondent No. 2 it is clear that Respondent No. 1 her mother, the wife of the victim has",

sworn an Affidavit, Exhibit 21, wherein she has clarified inter alia that the Affidavit was sworn to declare that the names “Harka Raj",

Biswakarma,†“Harka Raj Singh Kami,†“Harka Raj Singh†and “Chaman Diyali†denotes and relates to one and the same person, that",

is, her husband. No contrary evidence on this aspect was furnished by the Appellants. Thus, Exhibit 21 is accepted on this count.",

A doubt ensued on Exhibit 12, Income Tax Return Verification Form being dated 03.11.2015 while the victim was already deceased on",

04.07.2015. It has been clarified by Respondent No. 2 that Exhibit 12 pertains to a particular Financial Year and cannot be submitted as and when a,

person passes away. Exhibit 12 thus pertains to the relevant Financial Year, besides which, Respondent No. 1 survives him and has taken necessary",

steps as required. The circumstances of Exhibit 12 having been explained, there can be no doubt that this document establishes the per annum income",

of the deceased.,

While addressing the question of rash and negligent driving, the Appellant No. 2 has stated that when his vehicle crossed the Water Garden, he",

saw the vehicle bearing No. WB 76 7946 which had overtaken his vehicle at full speed, skid off the metalled road, hit an electric post and then fall into",

the river. However, his cross-examination elicited an admission as hereunder extracted;",

“… It is not a fact that no other vehicle or vehicles were involved in the said accident. (Witness volunteers to state that; it was only him and his,

vehicle involved in the said accident.) …â€​,

Nothing could be clearer on this point to establish his role in the accident. Cross-examination of the witness coupled along with meticulous scrutiny of,

Exhibit 3, the Property Seizure Memo in G.R. Case No. 339 of 2015, arising out of Singtam Police Station Case bearing FIR No. 47 of 2015, reveals",

that the front right side of the Truck bearing No. SK-01-D-2807 was damaged. No explanation was forthcoming from the Appellants on the reason as,

to the damage on the Truck.,

In support of the Appellants that rash and negligent driving was not proved, the Judgment of the learned trial Court acquitting the Appellant No. 2",

was filed before this Court in I.A. No. 2 of 2018. The Judgment inter alia at Paragraph 7 reads as follows;,

“7. The other witnesses PW2 first informant is not a eye witness (sic), PW 3 to PW 6 are seizure witnesses, PW 7 is the doctor who conducted",

autopsy on the deceased, PW 9 is the motor vehicle inspector and PW 10 is the investigating Officer. Thus there exists no evidence that the accused",

is the driver of the garbage truck, there is also no evidence that the accused was driving the said truck at the time of the accident. More importantly",

there is no evidence that the accused drove the truck rashly or negligently or committed any act which was rash or negligent. The evidence of the,

investigating officer that the garbage truck followed closely and hit the Tata Sumo has no evidence apart from his. The case of the prosecution has no,

iota of evidence to sustain the accusation as framed against the accused.â€​,

Evidently the learned trial Court truncated the proceedings under Section 258 of the Cr.P.C. being convinced that no evidence sustained the,

accusations against the accused/ Appellant No. 2. Whether the findings of the learned trial Court is correct in view of the evidence before it is another,

question altogether.,

Exhibit 22 which is the Final Report submitted by the I.O. of the Criminal Case supra reflects inter alia that the surface width of the asphalt road,

where the accident occurred is approximately 25 feet wide with 2.3 feet width on the left flank and 4 feet width on the right flank of the road with,

parapets on the left side and easily accommodates two vehicles on either direction. At the time of the accident, there was reportedly no traffic except",

the vehicles involved in the accident and the weather was clear with visibility up to 100 metres ahead. No brake marks or skid marks were found on,

the spot to indicate that the Appellant No. 2 had applied the brakes at the relevant time to establish efforts exercised to prevent an accident.,

Although reliance was placed by the Appellants on Nishan Singh and Others supra assistance sought thereof is misplaced. In the said matter a,

Maruti car was driving behind a truck and dashed into it. According to the Claimants therein viz. occupants of the car, the truck driver suddenly",

applied the brakes when the said truck was in the centre of the road, bringing it to the right side, as a result of which the Maruti car collided with the",

back of the truck. The Tribunal concluded that the driver of the Maruti car was responsible for rash and negligent driving consequently neither the,

truck driver nor the insurer of the truck were liable to pay the compensation. The matter went before the Hon’ble High Court of Uttarakhand,

which similarly dismissed the Appeal reiterating the finding recorded by the Tribunal observing inter alia that the driver of the Maruti car had failed to,

keep sufficient distance between the two vehicles, running in the same direction. The Appellants assailed the finding of the Tribunal and the",

Hon’ble High Court before the Hon’ble Supreme Court. The Hon’ble Supreme Court observed that the Maruti car which was following,

the truck was expected to maintain a safe distance as envisaged in Regulation 23 of the Rules of the Road Regulations, 1989. It was further held that",

the expression “sufficient distance†as given in the said Regulations has not been defined anywhere however the thumb rule of “sufficient,

distance†is at least a safe distance of two to three seconds gap in ideal conditions to avert collision and to allow the following driver time to respond.,

The distance of 10 to 15 feet between the truck and the Maruti car was certainly not a safe distance for which the driver of the Maruti car must take,

the blame. That having been said, the Hon’ble Supreme Court would also mull over whether the Tribunal should have at least answered the issue",

of contributory negligence of the truck driver in favour of the Appellants/Claimants and held as follows;,

“14. …The question of contributory negligence would arise when both parties are involved in the accident due to rash and negligent driving. In a,

case such as the present one, when the Maruti car was following the truck and no fault can be attributed to the truck driver, the blame must rest on",

the driver of the Maruti car for having driven his vehicle rashly and negligently. The High Court has justly taken note of the fact that the driver and,

owner of the Maruti car, as well as insurer of that vehicle, had not been impleaded as parties to the claim petition. The Tribunal has also taken note of",

the fact that in all probability, the driver and owner of the Maruti car were not made party being close relatives of the appellants. In such a situation,",

the issue of contributory negligence cannot be taken forward. …â€​,

(Emphasis supplied),

No support can be gained by the Appellants from the aforestated citation which in fact assists the case of the Respondents.,

In British Columbia Electric Railway Company Limited v. Loach AIR 1916 PC 208, an accident similar to the one under discussion arose. It was",

observed therein as follows;,

“... The accident which gave rise to the action occurred while the deceased was being driven by another man in a wagon called a “rig.†The,

highway along which the wagon was proceeding crossed the appellants’ track on the level at a point near a station and an orchard. While the,

wagon was being driven across the track it was run into by an electric car belonging to the appellants, with the result that the deceased was killed. ...",

…………………………………………………………………………………..,

In the present case their Lordships are clearly of opinion that, under proper direction, it was for the jury to find the facts and to determine the",

responsibility, and that upon the answers which they returned, reasonably construed, the responsibility for the accident was upon the appellants solely,",

because, whether Sands got in the way of the car with or without negligence on his part, the appellants could and ought to have avoided the",

consequences of that negligence, and failed to do so, not by any combination of negligence on the part of Sands with their own, but solely by the",

negligence of their servants in sending out the car with a brake whose inefficiency operated to cause the collision at the last moment, and in running",

the car at an excessive speed, which required a perfectly efficient brake to arrest it. Their Lordships will accordingly humbly advise His Majesty that",

the appeal should be dismissed with costs. …â€​,

(Emphasis supplied),

In the instant case, it is worth noting that: (i) except the evidence of Appellant No. 2 who has stated that the Sumo overtook him, no other",

evidence is factored in on this aspect from any other witnesses; (ii) it is clear that the road surface was adequately wide and (iii) even assuming that,

the vehicle of the deceased being a smaller and faster vehicle, had overtaken the Truck driven by the Appellant No. 2, no rule of the road bars",

overtaking. If one vehicle overtakes the other, the overtaken vehicle is required to exercise caution and responsibly maintain a safe distance",

thereafter. There is no evidence whatsoever to indicate that the Sumo was driven at breakneck speed whereby the driver lost control and hit the,

electric pole. At this juncture, we may relevantly refer to the principle of res ipsa loquitur, a doctrine that infers negligence from the very nature of an",

accident or injury in the absence of direct evidence on how any person has behaved. In other words, the aforestated principle refers to ""the thing",

speaks for itself"" and infers negligence from the very nature of an accident in the absence of direct evidence. The damage to the Truck is a clear",

indication that the Truck was responsible for having hit the Sumo from behind. Contributory negligence, in my considered opinion cannot be invoked",

neither can it be an issue in the circumstances. Thus it cannot but be concluded that the Truck was instrumental in the accident. That having been said,

it may be reiterated that the principles governing rash and negligent driving as required to be proved under Section 166 of the M.V. Act and its non-,

requirement under Section 163 A of the M.V. Act as sought to be urged by learned Counsel for the Appellants are no more res integra and do not,

merit a protracted discussion herein.,

Now to address the argument of the Appellants that the Criminal Case was devoid of Mechanical Report to establish that the Truck hit the Sumo,",

it would be apposite to reiterate that the M.V. Act is benevolent legislation and the absence of a Motor Vehicle Inspector’s Report does not,

demolish the claim of the Respondents No. 1 and 2. In Vimla Devi’s case supra the Hon’ble Supreme Court was considering the Judgment of,

the Tribunal which dismissed the claim petition of the Appellants holding that though the Claimants had filed the documents but did not exhibit them,

thus denying the Insurance Company an opportunity of cross-examining the Claimants' witnesses on the documents. The Hon'ble High Court in appeal,

agreed with the decision. To the contrary the Hon’ble Supreme Court while allowing the claim petition observed as hereunder;,

“..............................................................,

At the outset, we may reiterate as has been consistently said by this Court in a series of cases that the Act is a beneficial piece of legislation",

enacted to give solace to the victims of the motor accident who suffer bodily injury or die untimely. The Act is designed in a manner, which relieves",

the victims from ensuring strict compliance provided in law, which are otherwise applicable to the suits and other proceedings while prosecuting the",

claim petition filed under the Act for claiming compensation for the loss sustained by them in the accident.,

........................................................................,

20.1. Firstly, the appellants had adduced sufficient evidence to prove the accident and the rash and negligent driving of the driver of the offending",

vehicle, which resulted in death of Rajendra Prasad.",

20.2. Secondly, the appellants filed material documents to prove the factum of the accident and the persons involved therein.",

20.3. Thirdly, the documents clearly established the identity of the truck involved in the accident, the identity of the driver driving the truck, the identity",

of the owner of the truck, the name of the insurer of the offending truck, the period of coverage of insurance of the truck, the details of the lodging of",

FIR in the police station concerned in relation to the accident.,

20.4. In our view, what more documents could be filed than the documents filed by the appellants to prove the factum of the accident and the persons",

involved therein.,

........................................................................,

20.8. Seventhly, if the Court did not exhibit the documents despite the appellants referring to them at the time of recording evidence, then in such",

event, the appellants cannot be denied of their right to claim the compensation on such ground. In our opinion, it was nothing but a procedural lapse,",

which could not be made basis to reject the claim petition. It was more so when the appellants adduced oral and documentary evidence to prove their,

case and the respondents did nothing to counter them.â€​,

(Emphasis supplied),

Annual Income of the deceased,"Rs.2,61,980.00

Add 10% of Rs.2,61,980.00 as future prospects","Rs.26,198.00

Yearly income of the deceased,"Rs.2,88,178.00

Less 1/3 of Rs. 2,88,178.00 [deducted from the said amount in consideration of the instances which the victim would have incurred

towards maintenance had he been alive.]","Rs.96,059.00

Net yearly income,"Rs.1,92,119.00

Multiplier of ‘9’ adopted in terms of Sarla Verma’s case (supra) (Rs.1,92,119 x 9)","Rs.17,29,071.00

Add Funeral expenses in terms of Pranay Sethi’s case (supra),"Rs.15,000.00

Add Loss of consortium [Rs.40,000/- each, payable to Respondents No. 1 and 2 as spousal consortium and parental consortium,

respectively] in terms of Magma General Insurance Co. Ltd.’s case (supra)","Rs.80,000.00

Add Loss of estate in terms of Pranay Sethi’s case (supra),"Rs.15,000.00

Total,"Rs.18,39,071.00