Letters Patent Appeal No.869 OF 2001 ******* Against the judgment dated 21.07.2001 passed in M.A. no. 322 of 1996. ******* DAYAMANTI DEVI & ORS--------Appellants Versus SURESH SINGH & ORS-----------Respondents ******* For the Appellants : M/s R.K.P. Singh, Manish Kishore & Bal Bhushan Choudhary For the Respondents : M/s Ashok Kumar Choudhary & Tripurari Nath Ambastha ******* P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh & C.M. Prasad, JJ. In the Claim Case no. 16 of 1989 the appellants contended that the husband of the appellant no.1 and the father of the other appellants died of a motor vehicle accident and, accordingly, they are entitled to be compensated by the owner of the motor 2 vehicle. It was stated that the motor vehicle, which caused the accident, was a Maxi Taxi bearing registration no. BHP 7565. It was stated that the said accident took place in front of Noor Sarai High School. It was stated that the deceased, a State Government employee, then working as a Village Level Worker, was drawing a monthly salary of Rs.2348/-. The appellants lodged the claim for compensation for the death of the said deceased caused by the said motor accident against the respondents in the said Claim Case. The respondents no. 1 to 7 filed their written statement and thereby contended that Late Prasadi Singh was the owner of a Maxi Taxi bearing registration number BPI 7565, the same was being driven by Indradeo Prasad, the respondent no.8, and the said Maxi Taxi, on that date, came back from a trip and was parked at the locality 3 where the accident took place and later on the said vehicle was seized in connection with the said accident, but the said respondents obtained release thereof from the criminal court. 2. In order to prove that the death occurred by reason of an accident involving the Maxi Taxi owned by Prasadi Singh, two Chaukidars were called by the appellants to give evidence. They stated that the Maxi Taxi, which was involved in the accident, dashed the scooter, which was being driven by the deceased, the deceased fell down, the Maxi Taxi dragged the deceased and at that stage the driver fled leaving the Maxi Taxi. It was stated by the said Chaukidars that at the instance of the Officer-in-charge of the local Thana they guarded the said Maxi Taxi, which was involved in the accident, for a period of ten days. They did not give the 4 registration number of the Maxi Taxi in question. 3. The respondent no.8 neither filed a written statement, nor deposed. On behalf of the respondents no.1 to 7 a gentleman by the name of Laxmi Ravidas deposed. He stated that the Maxi Taxi in question was hired by him for the purpose of going to Deoghar. He stated that the purpose of going to Deoghar was to sacrifice the hair of his son. He stated that on the day of the accident, he along with the Maxi Taxi returned. He also stated that the respondent no.8 had parked the vehicle near Noor Sarai High School and went with him to his residence, two kilometers away, for the purpose of collecting the balance payment due on account of hire charges of the Maxi Taxi in question. Evidence of Sri Das does not inspire confidence at all in as much as 5 he does not remember anything pertaining to visit to Deoghar, for which he allegedly took the trouble of hiring the Maxi Taxi. He only remembered that on return, upon parking of the vehicle near Noor Sarai High School, he took the respondent no.8 to his home, two kilometers away, for the purpose of handing over to him the balance hire charges. He stated that the distance of his residence is two kilometers from Noor Sarai High School and the same is covered by a pitch road, but is not motorable. He did not indicate up to which distance from Noor Sarai High School motorable road was available towards his house. The entire evidence of Sri Das appears to be to highlight parking of the vehicle belonging to late Parsadi singh nearby Noor Sarai High School by respondent no.8. 6 4. On behalf of respondents no. 1 to 7 Birendra Singh also deposed. He claims to be an eye witness of the accident. He stated about collision of the scooter driven by the deceased with a Maxi Taxi. He, however, did not state that after the accident occurred the Maxi Taxi fled. This witness stated that another Maxi Taxi was parked on the ground nearby. The purpose of bringing this witness was to show that the vehicle belonging to late Prasadi Singh was parked and not abandoned. 5. In the Compensation Case the application filed by the respondents no.1 to 7 for obtaining release of the seized vehicle, bearing no.BPI 7565, owned by late Prasadi Singh had been tendered. In addition thereto, as aforesaid, in the written statement itself the respondents no.1 to 5 admitted that in connection with 7 the subject accident the Maxi Taxi, bearing BPI 7565, owned by late Prasadi Singh, was seized, which the said respondents later on got released from the criminal court. 6. From the evidence, as above, there is no dispute that a Maxi Taxi was involved in the accident, which resulted in the death. At the same time, there is no dispute that the Maxi Taxi belonging to late Prasadi Singh, bearing registration no.BPI 7565, was seized from the place of occurrence. As against this there is no evidence that the Maxi Taxi, which caused the accident, fled away. In such situation, it was obligatory on the part of the respondents no.1 to 7 to prove that the Maxi Taxi, bearing BPI 7565 belonging to late Prasadi Singh, was, in fact, parked near Noor sarai High School. Apart from the evidence of Sri Das there is no evidence to suggest parking of Maxi Taxi 8 BPI 7565 near Noor Sarai High School. As against this evidence, and in absence of any evidence that the Maxi Taxi, which was involved in the accident, fled, it was obligatory on the part of respondents no.1 to 7 to establish their conduct pertaining to seizure of the Maxi Taxi bearing registration no. BPI 7565, which they miserably failed to do except by obtaining release thereof by making an application before the criminal court. 7. The Tribunal, while dealing with the claim case, and a learned single Judge of this Court, while dealing with the appeal preferred against the order of the Tribunal, held in favour of the respondents no.1 to 7 principally by relying upon the evidence of Sri Das and were also influenced by the Motor Vehicle Inspector’s report, which had not been tendered in evidence. The accident, 9 in the instant case, occurred at 8.30 A.M. Sri Das, who did not remember anything pertaining to visit to Deoghar, for which the vehicle was hired, did not utter a single word as to when he came back in front of Noor Sarai High School, where the vehicle in question was allegedly parked by respondent no.8 upon returning from Deoghar. In the event Sri Das had returned a few minutes before 8.30 A.M. and had taken a journey to his house, two kilometers away, with the driver for the purpose of paying the remaining hire charges, it has not been explained by evidence by respondents no.1 to 7 as to what happened until the time they applied before the criminal court for release of the vehicle. If there is no evidence that the Maxi Taxi, which caused the accident, did not flee after the accident, then there could be two Maxi Taxis, 10 one belonging to late Prasadi Singh and the other belonging to some other person, but the fact remains that there were no two Maxi Taxis available at the place of occurrence and it is the Maxi Taxi belonging to late Prasadi Singh which was available at the place of occurrence and, accordingly, had been seized. 8. The conclusion, therefore, would be that the respondents no.1 to 7 sought to obtain full advantage of the mistake committed in the first information report prepared by the Police and signed by one of the Chaukidars, while recording the number of the Maxi Taxi as BHP 7565, instead of BPI 7565 which mistake was cured at the time of filing of the charge sheet. Despite such correction, however, the criminal case was dismissed for want of evidence. This was also one of the factors which influenced 11 dismissal of the Claim Case and the connected appeal. 9. On the evidence, it appears that the accident occurred due to rash and negligent driving of the Maxi Taxi, the Maxi Taxi found at the place of occurrence was the Maxi Taxi belonging to late Prasadi Singh and the said Maxi Txi was seized by the Police, which the respondents got released from the criminal court. The chain is, accordingly, complete. The death, therefore, occurred by reason of collision between the scooter driven by the deceased with the Maxi Taxi belonging to late Prasadi Singh. There being no contention and there being no attempt to bring any evidence by or on behalf of the respondents no.1 to 7 to establish that at the time of accident the Maxi Taxi belonging to late Prasadi Singh was not being driven negligently or 12 rashingly and at the same time there being direct unassailable evidence contrary thereto by the Chaukidars, the conclusion would be that the appellants for the death of late Nand Lal Prasad are entitled in law to be compensated by the respondents and in particular by the respondents no.1 to 7, being the heirs of the owner of the said Maxi Taxi. 10. There is no dispute that the deceased, at the time of his death, was forty years old and was working as Village Level Worker in the State Government. There is also no dispute that he was drawing a monthly salary of Rs.2348/-. Taking the said undisputed facts into consideration, we feel that appropriate multiplier in the instant case would be twelve as was taken note of by the Hon’ble Supreme Court in the case of General Manager Keral State 13 Transport Corporation Vrs. Susama Thomas; AIR 1994 SC 1631, where the deceased was thirty nine years old. After deducting one third of his salary as his personal expenses, we hold that the death has occasioned a loss of Rs.2,24,880/- to the appellants with that, in as much as the accident occurred prior to insertion of Schedule-II to the Act, in terms of the decision of the Supreme Court the appellants were entitled to a sum of Rs.15,000/- on account of loss of estate and another sum of Rs.15,000/- on account of loss of consortium, and as a result we quantify the amount of total compensation at Rs.2,54,000/- and direct the respondents no.1 to 7 to pay the same to the appellants within a period of four months from today, in default the amount will carry interest at 14 the rate of 12% per annum from the date of default. 11. It is made clear that in as much as late Prasadi Singh was the owner of the vehicle in question as on the date of the death, the liability on account of compensation, as assessed above, is that of Prasadi Singh and, accordingly, the respondents no.1 to 7 are liable to discharge such liability from out of the estate of late Prasadi Singh in their hands. (Barin Ghosh, J.) (C.M. Prasad, J.) Patna High Court, The 05th August, 2008. AAhmad/(NAFR)