New India Assurance Company Ltd. vs Manashi Chakraborty

Jayanta Kumar Biswas, J.—The Insurance Company is the appellant. It is aggrieved by an award of the Motor Accident Claims Tribunal, Paschim Medinipur dated 7th August, 2007. The Claims Tribunal ordered it to pay the three claimants (the first three respondents) Rs. 13,28,180 fault liability compensation with 5% p.a. interest from 26th October, 2005 when the application for compensation was filed u/s 166 of the Motor Vehicles Act, 1988. It was permitted to deduct the amount paid u/s 140. The three claimants were the wife, a minor daughter and the mother of one Sishir Kumar Chakraborty. The case stated in the Section 166 application was this. Sishir was working in Kharagpur workshop of the South-Eastern Railway. He was 45 and his monthly income was Rs. 12,500. On 27th April, 2005 at about 6.30 a.m., when he was going to work riding his motorcycle, the offending motor vehicle No. WB-3-X-0061, an Arjun Auto Pickup Van, driven at excessive speed dashed him and the injuries he sustained caused his death in hospital. The offending vehicle was covered by a valid policy issued by the Insurance Company. They were entitled to Rs. 15,00,000 compensation.

The Insurance Company contested the claim by filing a written statement. The owner of the offending vehicle was also the driver thereof. He was a party to the case; but he chose not to contest it. In proof of the case the claimants examined three witnesses: PW1 the victim''s wife; PW2-an SE Railway employee; and PW3-an eyewitness to the accident. In defence the Insurance Company examined an SE Railway employee as OPW1.

The Claims Tribunal held as follows. The offending vehicle was involved in the accident. The accident happened due to rash and negligent driving of the vehicle. The victim was killed in the accident. At the date of accident his monthly income was Rs. 10,989 and he was 44. Hence, the Second Schedule multiplier of 15 should be applied. General damages should be granted. Interest should be granted at 5%, because the claimants were responsible for delay in the disposal of the case.

Mr. Bhowmick appearing for the Insurance Company has argued as follows. Income was determined wrongly adding overtime paid to the victim by his employer for March, 2005, whose pay slip was only produced. There was no evidence of rash and negligent driving. Evidence was only that the offending vehicle was driven at excessive speed.

Mr. Sanyal appearing for the claimants (the owner of the offending vehicle has chosen not to appear and contest) has submitted as follows. Overtime was a regular feature of the victim''s income. Hence, it was not to be excluded while determining the victim''s monthly income. It is true that the victim''s wife deposing as PW1 gave false evidence. But falsa evidence as to the dependency cannot deprive the claimants of just compensation.

Except the above-noted two issues: rash and negligent driving and income determination, no other issue has been argued before us. The claimants have not filed any cross-objection. They accepted the award and were satisfied with it.

The accident happened on 27th April, 2005. The FIR (Ex. 1) concerned was registered on the basis of a written information dated 28th April, 2005 given to the officer in charge of Kharagpur (T) police station by a younger brother of the victim. It was mentioned that the offending vehicle was being driven rashly and negligently. This was also the case stated in the Section 166 application. And in proof of this case the claimants examined an eyewitness to the accident of PW 3. In his examination-in-chief PW 3 said that the offending vehicle was coming from the opposite direction at "very excessive speed", and that it, driven rashly and negligently, dashed the victim who was on his way to office riding a motorcycle.

Cross-examination PW 3 is quoted below:

"I am businessman by profession. The accident took place on 27th April, 2005 at about 6.30 a.m. At the relevant time I was passing through the P.O. road by riding my bicycle and proceeding towards my house at Taljuri, Kharagpore. The offending vehicle was proceeding from Kharagpore towards I.I.T. kgp. The accident took place in front of me at a distance of 15 cts. The deceased was riding the said motorcycle as rider and was proceeding towards I.I.T. kgp. On the left side of the road. There is no head of collision. Both the vehicles were proceeding on the same road. The pickup van dashed the side of the motorcycle. The deceased was known to me for the last five years. The wife of the deceased is also known to me. The deceased was a railway employee. I do not know whether the claimant is service holder or not. Not a fact that no accident was seen by me. I was not examined by police. Not a fact that I am deposing falsely."

As to evidence given by PW 3 that the offending vehicle was coming from the opposite direction at very excessive speed, and that it was being driven rashly and negligently, there was no cross-examination at all. This being the position, we are unable to accept that the Claims Tribunal ought not to have believed in what PW3 said. His evidence clearly proved that rash and negligent driving of the offending vehicle caused the accident in which the victim was killed. We are of the view of that the Claims Tribunal rightly believed PW 3 as to his evidence that the offending vehicle was being driven rashly and negligently.

As to the income issue it is true only the March, 2005, pay slip of the victim was produced by PW2, an employee of the South-Eastern Railway. The pay slip (Ex. 9) reveals that for March, 2005, the victim was paid Rs. 3,701 FOT and Rs. 197 SOT. The contention of the Insurance Company is that these two amounts ought to have been excluded while determining the victim''s monthly income. The pay slip who also contains the income particulars of another employee working in the same workshop and it reveals that the other employee also received Rs. 2,315 FOT and 145 SOT for the same month.

Ext. A is the victim''s wife''s (PW1''s) service-sheet and it reveals that she was appointed in the same workshop as a trainee skilled artisan on 12th September, 1991. Ext. B is PW1''s pay slip for March, 2007. It shows that for that month she was paid Rs. 1,105 FOT and Rs. 377 SOT. It contains the income particulars of two other employees as well and it reveals that while one of them received Rs. 7,302 FOT and Rs. 262 SOT, the other received Rs. 6,408 FOT and Rs. 230 SOT. The document also shows that while PW1 and another employee were working as Fitter-2, the third employee was a Techgr-2.

PW1''s pay slip for April 2007, was also exhibited. It was included in Ex. B and it shows that all the three employees whose income particulars were shown in March 2007, pay slip received both FOT and SOT also in April, 2007; and mat the amounts were substantial.

PW2 and OPW1 both were from the workshop in which both the victim and his wife (PW1) were employed. The Insurance Company did not ask PW2 and OPW1 whether receipt of overtime by the victim was a regular feature of the victim''s net pay. Evidence taken by the Claims Tribunal and in the records of the case proved that skilled workers working in the workshop used to earn substantial amount on account of overtime.

Therefore, it can be reasonably concluded that receipt of overtime was a regular feature of income of the persons working in the workshop. Since overtime was a regular feature of the pay, we are of the opinion that the Claims Tribunal was right in determining the victim''s monthly income including the overtime amounts received by the victim as part of his pay. We, therefore, do not find any merit in the contention of the Insurance Company on the income issue.

It is evident that the victim''s wife affirmed a false affidavit in support of the Section 166 application and gave false evidence before the Claims Tribunal as PW 1. In the Section 166 application the claimants said, "The deceased was an employee of S.-E. Railway and was the sole earner in his family and his sudden death has left his family shattered and put them in a critical financial condition. He was an able bodied person on whose shoulders was the entrustment of running his family".

In her examination-in-chief PW1 did not give any evidence of the claimants'' dependency on the victim. And in cross-examination she gave false answers. Her cross-examination is quoted below:

"I do not do any service in S.E. Rly. My husband deceased was employee of S.-E. Rly. Not a fact that I am doing service in S.E. Rly. workshop Kharagpore. I deposed in another case in Court. Not a fact that my profession is not house holding. I have not seen the accident with my own eyes. Not a fact that my husband did not draw salary 12,500 per month. Not a fact that my claim is excessive. Not a fact that I have independent income from service."

Exhibits A and B proved OPW1 lead to a definite conclusion that the victim''s wife (the first claimant) deliberately affirmed the false affidavit in support of the Section 166 application and gave false evidence before the Claims Tribunal. In the Section 166 application, it was stated that the victim was the "sole earner in his family". PW1 affirmed the statement as true to her knowledge. In her cross-examination, she said that she was not in service of South-Eastern Railway. She again denied the suggestion; and that she had independent income from service.

OPW1 produced her particulars of service Ext. A that proved that she was working in the workshop from 12th September, 1991 and Ext. B that proved that she was in employment in March and April, 2007. The documents (Exts. A and B) made it highly probable that she was in continuous employment from 1991 and was promoted to higher grades and receiving as pay almost the same amount as her deceased husband.

We do not think false evidence given by PW1 can exonerate the Insurance Company from its liability to pay compensation to the legal representatives and heirs of the victim who was killed in the motor vehicle accident caused by the offending vehicle covered by a valid policy issued by it as to third party risk. It is not for us to decide what other consequences may visit PW 1 for filing false affidavit and giving false evidence before the Claims Tribunal. It is for the appropriate authority or forum to examine the matter and decide the course. For these reasons, we dismiss the appeal. The Registrar General is directed to pay the balance of the deposit with accrued interest to the claimants within four weeks from the date the records are sent to the department. No costs. Certified xerox.