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Judgment
[1] Heard Mr. A. Roy Barman, learned CGC appearing for the appellants as well as Mr. P. Datta, learned counsel appearing for the claimant-respondents.
[2] By means of this appeal filed under Section 173 of the Motor Vehicles Act, 1988 the appellants have raised twofold objections viz (i) that the accident has occurred as a result of contributory negligence and (ii) that the assessment of the compensation is grossly unreasonable.
[3] There is no controversy that the Road Traffic Accident occurred on 06.04.2013 involving the vehicle bearing registration No. TR-01-P-0655 (Gypsy) owned by the appellant. One Bijay Malakar while riding a motor bike met the accident. He died succumbing to the injuries that he received from the said accident. He was aged 30 years at the time of death. Bijay Malakar was a Rifleman under 8th BN of TSR and he used to draw a gross salary of Rs. 17,305/-.
[4] The claimant-respondents are the dependants of the said Rifleman. They filed the claim petition under Section 166 of the Motor Vehicles Act being T.S. (MAC) 24 of 2013 claiming compensation to the extent of Rs. 55,56,532/-. By the impugned judgment and award, the tribunal has awarded a sum of Rs. 33,00,120/-.
[5] In support of the claim, the claimant-respondents adduced one witness, namely Smt. Rumki Malakar, widow of the deceased whereas the appellants adduced one witness namely Tariq Ahamed (OPW-1) who was the driver of the said offending vehicle to resist the claim. Mr. Roy Barman, learned CGC appearing for the appellants has strenuously argued that Tariq Ahamed (OPW-1) was the only person, who testified in the trial, was the eye witness to the occurrence. He has categorically stated in the tribunal that he was driving the vehicle with due care and caution even by applying emergency brakes.
[6] According to him the said accident took place due to rash and negligent driving of the deceased. The deceased, Bijay Malakar rammed his motor cycle on the right side of his vehicle as he was coming from the opposite side along the Ambassa- Kamalpur road near Sudharampara S. B. School at the time of accident.
[7] He was driving the bike with excessive speed. Even he had over taken another motor bike driven by one Madan Mohan Debbarma of village Hariramrampara. According to OPW-1, Bijay Malakar (since deceased) was driving the vehicle without helmet and as a result he fell victim to the accident. OPW-1 has admitted in the cross-examination that he had been charge sheeted in Ambassa Police Case No. 16 of 2013 which was lodged for the same accident.
[8] Mr. Roy Barman, learned CGC appearing for the appellants has further submitted that the assessment as made by the tribunal is highly exorbitant inasmuch as, the income so assessed has not been properly viewed taking into consideration of the deductions made from his salary.
[9] On the other side, Mr. P. Datta, learned counsel appearing for the claimant-respondents has submitted that from the First Information Report filed by one Madan Mohan Debbarma @ Mohan Debbarma, it would transpire that one bike had crossed him and after going a little ahead he came to know the BSF Gypsy vehicle bearing registration No. TR-01-P-0655 coming from the opposite direction had collided with another vehicle and because of which both the vehicles met the accident. The TSR personal had sustained serious injuries. He has clearly stated in the FIR as follows:
"The said accident occurred due to speedy and reckless driving of the driver of the vehicle belong to BSF because of which TSR personal sustained injuries."
[10] After investigation the police filed the report under Section 173(2) of the Cr. P.C., and from that final report it is evident that OPW-1 was charge sheeted for rash and negligent driving under Section 279/337/304(A) of the IPC.
[11] Mr. Datta, learned counsel appearing for the claimant-respondents has therefore contended that the police report which is the outcome of the statutory investigation carried by the authorized police officer carries a prima facie value and as such, this Court may take into consideration the said police report.
[12] Mr. Datta, learned counsel has further submitted that a cumulative effect of the testimony of OPW-1 and the documents such as the FIR and the final police report would be that the offending vehicle was being driven rashly and negligently and with such negligence and rashness that led to the said accident. He has stoutly contended that there was no negligence on the part of the vehicle driven by the deceased. Moreover, it is gathered from the police report that the jeep vehicle was on the wrong side when the collision took place.
[13] Mr. Datta, learned counsel appearing for the claimant-respondents has further submitted that in the written statement filed by the appellants, no plea of contributory negligence was raised. No evidence has also been adduced by the appellants in that regard. However, Mr. Datta, learned counsel has admitted that such plea was raised while placing the argument before the tribunal but the tribunal has rejected such plea on its face.
[14] Mr. Datta, learned counsel has relied on a decision of the Apex Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and Others reported in (2002) 6 SCC 455, where the Apex Court has observed that the question of contributory negligence arises when there had been some act or omission on the part of the other vehicle in the context of collision and that negligence has materially contributed to the damage caused, and is of such a nature that it may properly be described as negligence. 'Negligence' ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an author of his own wrong.
[15] It has been further observed in Pramodkumar Rasikbhai (supra) that the standard of a reasonable man is as relevant in the case of a plaintiff's contributory negligence as in the case of a defendant's negligence. But the degree of want of care which will constitute contributory negligence varies with the circumstances and the factual situation of the case.
[16] According to Mr. Datta, learned counsel appearing for the claimant-respondents that there is no such material either in the written statement or in the evidence and as such, there is no material to demonstrate element of contributory negligence in the present case. The law in this regard is well settled particularly in Usha Rajkhowa and Others v. Paramount Industries and Others, reported in 2009 Acci C.R. 452 (SC). In Usha Rajkhowa the ratio of Pramodkumar Rasikbhai (supra) has been adopted in Sudhir Kumar Rana v. Surinder Singh and Others, reported in (2008) 12 SCC 436.
[17] This Court having scrutinized the records of evidence as well as appreciating the submission made by the learned counsel appearing for the parties is of the opinion that the appellants have failed to establish the contributory negligence by the deceased biker.
[18] Further, this Court has scrutinized the reasons as given in Para- 11, 12 and 13 of the impugned judgment, where the compensation has been ascertained by following the parameters as laid down in Sarala Verma and Others v. Delhi Transport Corporation and Another, reported in 2009 AIR SCW 4992. The tools of Sarla Verma (supra) have been properly applied and this Court does not find any reason to interfere with the compensation.
[19] Having observed thus, this appeal stands dismissed. The appellants shall pay the entire compensation money with interest within a period 2 (two) months from the day when the copy of this judgment and order will be available with them. The disbursement of the compensation would be made in terms of the observations made in Para-17 of the impugned judgment and award.
[20] In this regard, it is to be noted that the respondent No. 1, Smt. Anita Malakar has expired on 11.12.2015 meaning during pendency of this appeal. The successors of Smt. Anita Malakar shall be allowed to withdraw her share from the amount that has been assessed by the tribunal in terms of the conditions which will apply in respect of their share if there is more successor the tribunal shall decide the mode of disbursement. For that purpose, the claimant-respondents may submit the survival certificate of the claimant-respondent No. 1, based on which the tribunal shall determine the claim over the share of the deceased claimant-respondent No. 1. If it is found that the claimant- respondents No. 2, 3 and 4 are the sole successors of Smt. Anita Malakar, the share from the deceased claimant-respondent No. 1 shall be distributed among the claimant-respondents No. 2, 3 and 1. But if there are other successors beyond the claimant- respondents, the tribunal shall decide, as stated, their share out of the share of the deceased claimant-respondent No. 1.
There shall be no order as to costs. Copy of this judgment and order be furnished to the learned counsel appearing for the parties.