State of U.P. vs Ram Babu Yadav

Rakesh Tiwari, J.—Heard learned counsel for the appellants on delay condonation application and on merit. Perused the impugned award. The appeal is reported to be beyond time by 53 days. Having gone through the affidavit filed in support of the delay condonation application we find that the cause shown for delay in filing the appeal is sufficient. Delay is condoned. The application for condonation of delay is allowed.

By means of this first appeal from order the appellant challenges the validity and correctness of the judgment and award dated 22.12.2012, passed by the Motor Accident Claims Tribunal/Addl. District Judge, Court No. 5, Rama Bai Nagar, in M.A.C.P. No. 626 of 2010, Ram Babu Yadav v. State of U.P. Police through Superintendent of Police, Rama Bai Nagar, whereby a sum of Rs. 5,04,995 as compensation together simple interest @ 6% per annum from the date of filing of the claim petition till final payment of the awarded amount is made to the claimant-respondent.

The claimant-respondent preferred M.A.C.P. No. 626 of 2010 aforesaid before the Motor Accident Claims Tribunal claiming Rs. 31,00,000 towards compensation on account of the injuries said to have been sustained by him in the accident in question. It was claimed that the accident causing injuries to him occurred when the motor cycle on which he was riding as pillion rider, was hit by police jeep No. U.P.-77, G.-0046. The claim was contested by the appellant by filing written statement denying the averments of the claim petition and stating that the alleged accident had not occurred with the said police jeep and that a false case has been registered by the claimant implicating it.

After hearing learned counsel for the parties and on appreciation of the evidence on record the Tribunal awarded a sum of Rs. 5,04,995 as compensation together with simple interest at the rate of 6% per annum to the claimant-respondent with effect from the date of filing of the claim petition till the date of payment of compensation by the appellant. Aggrieved by the aforesaid judgment and award dated 22.12.2012 the appellant has preferred the present appeal.

The contention of Sri S.K. Mehrotra, learned standing counsel appearing on behalf of the State of U.P., the appellant is that from perusal of documentary evidence on record as well as from the oral statements of D.W. 1, namely, Yogendra Narayan Dubey and D.W. 4 namely. Gulzar Singh, who had been driving the jeep it is fully established that the said jeep was not involved in the alleged accident and has been falsely implicated and that the Tribunal has illegally, arbitrarily and on the basis of surmises and conjectures has passed the impugned award, which is liable to be set aside.

The learned counsel for the appellant submits that at the time of alleged accident the jeep in question was under the control of Sub-Inspector Sri Rakesh Chandra on patrol duty within the territorial jurisdiction of police station Amrahat whereas the alleged accident occurred in the territorial jurisdiction of police station Bhognipur, District Kanpur Dehat. It is stated that the Tribunal without application of mind and appreciation of the evidence on record has illegally held that the Jeep in question was involved in the alleged accident, hence the said findings are erroneous and is liable to be set aside.

It is also stated that the claimant-respondent has failed to prove the disability certificate by examining the doctor and there is no injury report on record but the Tribunal on the basis of assumption has illegally awarded compensation against the appellant and that in any case the monthly income of the claimant has not been proved yet the Tribunal has awarded compensation by taking Rs. 10,000 as monthly income of the claimant-respondent. He concludes that because the claimant-respondent has failed to produce the medical bills etc. towards alleged medical expenses of Rs. 1,79,995, therefore, the Tribunal has illegally awarded compensation of the aforesaid amount, hence in this view of the matter also, the award is erroneous and is liable to be set aside.

The Tribunal on the basis of pleadings of the parties has framed following 4 issues for deciding the case.

The Tribunal on first issue considered the oral evidence of D.W. 1 and D.W. 2 produced by the appellant namely, Sub-Inspector Yogendra Narain Dubey and Constable Ramesh Chandra Tiwari, D.W. 1, S.I. Yogendra Narain Dubey has stated that on 13.2.2009 he was posted as Sub-Inspector at police station Amrahat. On the fateful day at about 19.45 p.m. after making entry at G.D. No. 36, S.O. Sri Rakesh Chandra Tiwari and Constable Ramesh Chandra Tiwari alongwith driver Gulzar Singh, they all had gone on patrol duty on Jeep No. U.P.-77, G.-0046 in the jurisdiction of their police station, i.e., Amrahat. They reached back at the police station at 2.45 a.m. after patrolling on 14.2.2009 and made entry in the G.D. on that date; that the jeep neither met with any accident on this date nor the said jeep was out of the jurisdiction of police station Amrahat, rather it was driven carefully and slowly throughout the patrolling by its driver. The statement of D.W. 1, S.I. Sri Yogendra Narain Dubey reads thus:

D.W. 2, Constable Ramesh Chandra Tiwari in his statement also reiterated the same fact as stated by S.I. Sri Yogendra Narain Dubey. D.W. 1. His statement reads thus:

D.W. 3, S.I., Sri Rakesh Chandra Tiwari was posted as S.O. at P.S. Amrahat who in his oral evidence before the Court stated that on 13.2.2009 at about 7.45 p.m. he alongwith S.I. Sri Yogendra Narain Dubey and Constable Ramesh Chandra Tiwari had gone on patrol duty in the aforesaid Jeep; that they came back at police station on 14.2.2009 at 2.45 p.m.; that they had patrolled in villages Mahtauli, Tuiwapur, Maheshpur and Ghatawara. He also stated that the said jeep had not gone beyond the jurisdiction and area of the police station Amrahat. The statement of D.W. 3 S.I., Sri Rakesh Chandra Tiwari is as under:

D.W. 4, Gulzar Singh has reiterated the same fact as stated by S.I. Sri Yogendra Narain Dubey, D.W. 1. His statement reads thus:

On behalf of the claimant, Gyan Singh was examined as witness No. 2, who stated that he had noted the number of the jeep, which was being driven by its driver and there was no one else besides him inside the jeep.

The Tribunal after considering the evidence on record found that the oral evidence of police witnesses was not reliable as they avoided to give the names of the villages where they had gone and had only mentioned the names of few of them stating that they do not remember in which other village they had gone for patrolling. The reason given for disbelieving the police witnesses was that they could not prove their statements from the G.D. of the police station which was not produced in the Court. Even the log book of the vehicle in question was not produced from which it could have been established as to which places/villages the vehicle in question went in the intervening night of 13.2.2009 and 14.2.2009 between 9.00 p.m. and 2.45 p.m. respectively. Per contra, the eye-witness of the claimant had seen driver Gulzar Singh driving the jeep alone near the place of accident. This might be that the driver had taken the jeep himself and the other police witnesses were not even with him. This finds support from the statement of Constable Gulzar Singh, the driver of the jeep, D.W. 4 who stated that:

From the above it also appears that this witness has also given incorrect statement before the Tribunal in this regard as has observed in the judgment thus:

There is no enmity between the claimant and the appellant. Rather, this observation that public normally does not want to say anything against the police and the accident must have given some courage to the appellant to report the truth by filing claim immediately after the accident in which the number of the jeep has clearly been stated, Considering all these facts and circumstances of this case, the Tribunal found the police jeep in question to be involved in the accident.

The Tribunal while deciding issue Nos. 2 and 3 also found that the driver of the aforesaid jeep was having a valid licence and that the claim application does not suffer from any illegality. On issue No. 4, the Tribunal on the basis of document found that the age of the claimant was between 55 to 60 years. Accordingly, multiplier of ''8'' would be applicable for the purposes of determination of compensation according to Second Schedule of the Motor Vehicles Act. As regards the income of the claimant is concerned, the contention of learned counsel for the appellant that the Tribunal has wrongly computed the compensation taking the monthly income of the claimant at Rs. 10,000 is incorrect as the Tribunal found that the claimant had filed income tax return of the year 2008 showing income to be Rs. 1,11,696. It was a public document. This document was read by the Tribunal alongwith the statement of the claimant that he was earning between Rs. 10,000 to Rs. 20,000 from his work as contractor, therefore, taking lower side of the income the Tribunal has rightly assessed income of the claimant to be about Rs. 10,000 per month.

The question of age of the injured at the time of accident and his monthly income from the work of contractor has been discussed by the Tribunal in its judgment thus:

As regards disability is concerned, the Tribunal found that immediately after the accident the injured was taken at about 9.20 p.m. to Primary Health Centre, Pukhraya from where he was referred to Regency Hospital, Kanpur. He was admitted there on 13.2.2009 from about 11.33 p.m. and was discharged on 5.3.2009. The disability certificate was issued by the Chief Medical Officer and a member of the Medical Board, Rama Bai Nagar, which shows that the injured has suffered 40% permanent disability. This certificate also contains the photograph of the injured showing his leg as denatured. The relevant findings in this regard read thus:

The argument vehemently advanced by the learned counsel for the appellant is that the claimant suffered simple fracture of tibia bone of his right leg. Therefore, the Tribunal has wrongly relied upon the medical certificate showing 40% disability in his right leg. After the simple fracture is healed, the injured could have worked the profession of contractor normally.

Considering the statement of the claimant that after the accident his income is reduced to zero and the fact that he was not cross-examined on this point, the Tribunal has accepted 40% disability as certified by the Medical Board. Accordingly, the Tribunal held that the claimant suffered 30% disability in comparison to the whole of the body and has awarded compensation of Rs. 3,20,000 and expenses in medical treatment at Rs. 1,79,995 total amounting to Rs. 5,04,995 directing the State of U.P. to pay the aforesaid amount of compensation through the Superintendent of Police, Rama Bai Nagar. Thus, from perusal of the award we find that the argument advanced by the learned counsel for the appellant has no force. The Tribunal has given cogent and valid reasons for disbelieving the evidence of witnesses produced by the police department in support of its case. We do not find any illegality or infirmity in the impugned award. For all the reasons stated above, the appeal is dismissed.