Ruby Devi and Others vs Md. Nasim Khan and The Divisional Manager

Akhilesh Chandra, J.—This is an appeal preferred against the Judgment dated 21st January, 2009 and Award dated 29th January, 2009 passed in Claim Case No. 245 of 2004 by 5th Additional District Judge-Cum-Motor Vehicle Accident Claims Tribunal, Muzaffarpur, awarding a sum of Rs. 84,750/- only as compensation against death of deceased, namely, Vijay Bhuyiya, who met with an accident on 01st February, 2001 while going towards Ramgarh from Giddi by a motorcycle, bearing Registration No. B.R. - 14F/8049 with which another motorcycle, bearing Registration No. B.R. - 13C/3269 coming from opposite direction was dashed resulting into death of the deceased. Admittedly, the amount, so awarded, has already been paid to the claimants-appellants after deducting the award passed and paid u/s 140 of the Motor Vehicles Act (hereinafter referred to as ''the Act'') and the main grievance against the impugned judgment is that instead of 1/4th of the income of the deceased, 1/3rd has been deducted as his personal expenditure and his income in spite of evidence of employer has erroneously been disbelieved and that apart on the ground of contributory negligence substantial amount has also been deducted.

The claimants-appellants preferred the claim application with a specific case that on the fateful day, the deceased was sitting as a pillion rider and the motorcycle in question was being driven by his friend (name not disclosed) and while accident taking place, the deceased, aged about 32 years working as Munsi at Sirka Colliery, sustained injuries and subsequently during course of treatment succumbed. The claim application was contested by the insurer-respondent by filing written statement apart from others on the ground of lack of proof of age, driving license of the vehicle besides other particulars and details relating to the accident including income of the deceased etc.

Admittedly, Giddi Police Station Case No. 7 of 2001 was instituted relating to an accident and as required under Rule 226 of the Bihar Motor Vehicles Claim Tribunal Rules (hereinafter referred to as ''the Rules''), the claimants have filed its certified copy which is on record, as Exhibit - 3, which indicates that the driver of one of the two motorcycles collided, sustained severe injuries and ultimately died. As a matter of fact, he was none else than the deceased, Vijay Bhuyiya, since out of the four injured persons, he is the only person dead.

It is contended on behalf of the claimants-appellants that statement of Fardbeyan cannot be taken into a piece of evidence on the point of deceased being driver of the vehicle. No doubt, ordinarily the contents of the First Information Report/Fardbeyan are not to be taken as a piece of evidence, but if they are filed along with claim application u/s 226 of the Rules, without any exception or explanation to the assertions, if any, contrary to the actual facts, can be taken into consideration. Had there been any otherwise explanation, the position could have been different.

Even assuming for a while that in the claim application contrary to the statement in Fardbeyan, the claimants, who are not eye-witnesses of the occurrence, have taken a stand that the deceased was a pillion rider, but there is no evidence to support this assertion. A.W. 2, Bhim Sah, claiming to be an eye-witness has simply said that deceased was one of the occupants of the motorcycle. He has not said even a word as to whether the deceased was driving the motorcycle or was a pillion rider. Similar is the position of A.W. 4, Dheeraj Karmali, another claimed eyewitness. Both of them are at least consistent to this extent that on both the motorcycles two persons each were riding, but none of them have stated even a single word that the deceased was a pillion rider which is the case of the claimants.

In absence of the above, it was essential to produce another rider of the ill-fated motorcycle which was at least in occupation of the deceased in either of the two capacity, driver or pillion rider, who being the most competent witness, not only an eye-witness of the occurrence, but as consistently stated by the claimed eyewitnesses, was also one of the injured, to state about the actual affairs and manner of the accident, but for the reasons best known to the claimants-appellants, they have not made party to proceeding either the owner or alleged driver of the motorcycle, under the occupation of the deceased or produced another rider said to be driver of the motorcycle or even disclosed his name. In absence of such a competent witness without any cogent and convincing reason there appears no reason for non-consideration of the statement in the First Information Report that deceased was driver of ill-fated vehicle.

The active and vital concealment of the materials facts, the witness, as well the driving licence, if any, of the deceased, making him unauthorized to drive the vehicle in question, alone disentitles the claimants-appellants to get the compensation against death of the deceased more than what is prescribed as no fault basis u/s 140 of the Act i.e. nothing more than Rs. 50,000/- since they have not chosen to prefer the claim u/s 163A of the Act. There is no application of the rates prescribed under Schedule-II. The claimants-appellants have already been paid the substantial amount more than what they are entitled for as stated, but in absence of any appeal filed by the insurer-respondent rather they have already been paid the amount, so awarded, it cannot be reduced or they cannot be ordered to refund. But at the same time, there also cannot be any enhancement in view of decision of this Court in case of "Sant Lal Singh @ Sant Kumar Singh and Ors. Vs. M/S. Bharat Service Station & Anr." passed in Miscellaneous Appeal No. 107 of 2009 delivered on 13th May, 2013, wherein, the decision of Hon''ble Apex Court in case of Ranjana Prakash and Others Vs. Divisional Manager and Another, , has been relied on. Accordingly, finding no merit, this appeal is hereby dismissed.