IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.110 of 2009 1. Smt. Sunita Devi , Wife of Sri Ram Sagar Poddar 2. Sri Ram Sagar Poddar, Son of Late Ram Awatar Poddar, both resident of village Singhaul, P.S. – Muffasil, District – Begusarai. Claimant-Applicant…….. Appellant Versus 1. Sri Binay Kumar Singh, Son of Late Hari Nandan Singh, resident of village – Dularpur, P.S. – Teghra, District – Begusarai. 2. The Divisional Manager, National Insurance Company Ltd., Moti Zhil Muzaffarpur. ………. Respondent Opposite Parties ---------------------------------- 11 17/11/2011 The present appeal under Section 173 of the Motor Vehicles Act (hereinafter referred to as the ‘M.V. Act’) has been preferred by the claimants/appellants against the judgment and order dated 18.12.2008 passed in Claim Case No. 281 of 2005, whereby the learned 5th Additional Motor Vehicles Accidents Claims Tribunal, Muzaffarpur (hereinafter referred to as the ‘Claims Tribunal’) has dismissed the claim case. Short fact of the claimants’ case is that on 19.04.2005 while son of both the claimants/appellants was coming on a motor cycle from Barauni to Begusarai along with his maternal uncle, at about 10.15 a.m. a Tata 407 vehicle being driven rashly and negligently dashed the motor cycle and in the said accident the son of the appellants’ namely Niraj Kumar, aged about 24 years, received serious injuries. Thereafter, with the help of some local persons he was immediately carried to nearest Nazarat Hospital, Mokama, where he died at 11.50 on the same day. On the fard- beyan of Sri Jai Narain Poddar (maternal uncle of the deceased) an F.I.R. vide Barauni P.S. Case No. 120 of 2005 was registered. Fard- 2 beyan was recorded at Nazarat Hospital O.P.D. Mokama on the same date i.e. 19.04.2005 by an Assistant Sub-Inspector of Police. F.I.R. was lodged for the offence under sections 279, 337, 304A & 427 of the Indian Penal Code against unknown driver of Tata 407. In the fard-beyan the informant had stated that on the date of occurrence he along with the deceased was going to Begusarai on Bajaj Boxer motor cycle bearing registration no. BR-9B/5736. The owner of the motor cycle was the deceased Niraj Kumar and he was driving the motor cycle. At about 10.15 a.m. while they reached near fertilizer gate (Kisan Dwar) he noticed that from eastern side a Tata 407 was coming which was being driven rashly and negligently. Immediately after noticing that Tata 407 was rashly being driven by the driver the deceased Niraj Kumar immediately turned his motor cycle on extreme left side and got the motor cycle down from the road but motor cycle was dashed by the offending vehicle. In the said accident besides the deceased the informant also received injuries but the deceased Niraj Kumar got serious injury and he became unconscious. At the time of accident the informant could not see the no. of the Tata 407 and after the accident the driver of Tata 407 without stopping fled away with the offending vehicle. The people who gathered at the place of occurrence told that the offending vehicle was a milk carrier (dudh wali gaddi). Subsequently, with the help of villagers the injured was carried to the government hospital on a traker however he succumbed to the injuries. After the death autopsy was also conducted on the dead 3 body of the deceased Niraj Kumar. The police after registering F.I.R. investigated the case and during investigation it transpired that Tata 407 vehicle having registration no. BR-09-6391 was involved in the accident and as such charge sheet was submitted against one Abhiram Ram – driver of the said Tata 407 vehicle. The claimants on 31.10.2005 filed claim case before the Motor Accidents Claims Tribunal, Muzaffarpur along with an affidavit filed by the appellant under section 166 of the M.V. Act. The claimants along with petition under section 166 of the M.V. Act had simultaneously filed a petition for interim compensation under section 140 of the M.V. Act which was allowed on 27.04.2007 and in compliance with the order of the learned Claims Tribunal the insurance company paid the interim compensation amount to the claimants. The claimants had claimed total compensation amount of Rs. 1,94,500/- before the learned Claims Tribunal. In support of the claim case the claimants examined altogether four witnesses and also got exhibited certified copy of the F.I.R. as Exhibit -1, certified copy of the charge sheet as Exhibit -2 and certified copy of post- mortem report as Exhibit -3. In the claim case the opposite party no. 1 / owner of the offending vehicle and insurer of the offending vehicle / respondent no. 2, appeared and filed their respective written statements. The owner of the offending vehicle had disputed even the accident. However, it was pleaded that his vehicle was under the insurance 4 cover of the insurer i.e. respondent no. 2. The owner of the vehicle also brought on record copy of valid driving licence of the driver of the offending vehicle. Similarly, the insurer questioned the accident. It was pleaded that death had occurred not in the accident as claimed by the claimants but accident had taken place some where else. Finally, the learned Claims Tribunal by the impugned judgment and award had dismissed the claim case of the claimants. Sri Vinay Ranjan, learned counsel for the appellants has argued that before the learned Claims Tribunal the claimants had filed petition under section 166 of the M.V. Act along with certified copy of the F.I.R., charge sheet and post mortem examination report of the deceased. In the F.I.R. it was specific case that at the alleged place of occurrence accident had taken place in which the son of the appellants received serious injury, and thereafter, on the same day he died in hospital within few hours of the accident. Without any delay fard-beyan of the informant was recorded in hospital at Mokama and the informant had categorically stated that Tata 407 vehicle which was drived rashly by the driver had dashed the motor cycle of the deceased even though the deceased had kept his motor cycle in the extreme left below the road side. It was submitted that F.I.R. indicates that persons who had gathered immediately after the accident were saying that Tata 407 was a milk carrier vehicle (dudh wali gaddi). It was further submitted that during investigation it was noticed that Tata 407 5 vehicle having registration no. as indicated above was the offending vehicle and as such driver of the said offending vehicle was made accused and charge sheeted which is evident from Exhibit -2 i.e. certified copy of the charge sheet. Death of the deceased as well as age of the deceased has been corroborated by the post-mortem examination report which has been marked as Exhibit -3. It was further argued that during investigation as well as in the claim petition it has come that the deceased was a brilliant student and he was earning about Rs. 2,500/- to Rs. 3,000/- per month by imparting tuitions and he was also taking care of his old aged parents i.e. the appellants. Due to death of their son the appellants have suffered heavy pecuniary loss besides loss of affection and consortium. According to learned counsel for the appellants the learned Claims Tribunal was required to grant compensation after taking into account the income of the deceased as per Schedule -2 of the M.V. Act. The claimants were entitled to get total compensation amount of Rs. 1,94,500/- as claimed by the claimants along with interest from the date of filing of the claim case. Sri Shailendra Kumar, learned counsel for the respondent no. 2 / National Insurance Co. Ltd. (the insurer of the offending vehicle) has strenuously refuted the argument advanced by the learned counsel for the appellants. At the very outset it was argued that the present case was a case of hit and run. It was argued that from the depositions as well as cross-examination of the witnesses who had claimed to be the eye witnesses it was established that the 6 witnesses have not deposed truly. The evidence of the so-called eye witnesses was contrary to the facts enumerated in the F.I.R. It was submitted that it is admitted position that A.W.-1 & A.W.-2, both appellants respectively, were not eye witnesses to the accident. A.W.-3 & 4 have claimed to be the witnesses to the accident. However, in their evidences it has come that while the deceased was standing he was dashed by the offending Tata 407 vehicle whereas it was the case of the claimants, as per the claim petition, as well as, as per the F.I.R. that accident had occurred while the deceased was driving a motor cycle which was dashed by Tata 407 vehicle. It was submitted that since contradictory stand was taken by the claimants’ witnesses, the learned Claims Tribunal has rightly rejected the claim case by the impugned judgment and order, which requires no interference. Besides hearing learned counsel for the appellants as well as the insurer, I have also perused the lower court records. It is true that there were some contradictions in the evidences of A.W. -3 & 4 regarding accident but fact remains that without any delay after the accident fard-beyan was got recorded at Nazarat Hospital O.P.D. Mokama. It is evident that accident had occurred at about quarter to ten (10.15 a.m.) and by 11.50 the insured succumbed to his injuries in hospital. The fact disclosed in the fard-beyan clarifies that Tata 407 vehicle at the time of accident was being driven rashly by the driver and without any fault of the motor cyclist it was dashed by Tata 407 vehicle. The place of accident and manner of accident were 7 corroborated during the investigation. During investigation registration no. of vehicle was also noticed and finally after completion of investigation charge sheet was submitted against Abhiram Ram driver of Tata 407 vehicle having registration no. BR-09-6391 which is corroborated in Exhibit -2 i.e. certified copy of the charge sheet in Barauni P.S. Case No. 120 of 2005. On perusal of the record it is evident that the deceased was a brilliant student. The certificates of Bihar Intermediate Education Council, Patna and Lalit Narayan Mithila University, Darbhanga are on record. In the evidence it was claimed that the deceased was imparting tuition and he was earning about Rs. 2,500/- to Rs. 3,000/- per month. However no documentary evidence was brought on record nor any conclusive evidence has been brought on record to establish as to what was the exact earning of the deceased. In view of the evidences and materials available on record, the court is of the opinion that the learned Claims Tribunal has committed serious error in rejecting the claim case merely on the ground of some contradictions in the deposition of A.W.-3 & 4. The documentary evidence was sufficient to establish the case of the claimants which has been ignored by the learned Claims Tribunal. Accordingly, the impugned judgment and order is not sustainable in the eye of law and is hereby set aside. The deceased at the time of accident was aged about 24 years and the age of appellant no. 1 as is evident from the record at the time of filing of the claim petition was recorded as 43 years and 8 as such the appellants had suffered loss of income and dependency due to death of their son. The age of claimant no. 1 would be appropriate to be taken into account for calculation in terms of Schedule -2 of the M.V. Act. In absence of any specific evidence on the question of income of the deceased, notional income i.e. Rs. 15,000/- as per Schedule -2 after deducting 1/3rd which comes to Rs. 10,000/- can be taken into account. The age of claimant no. 1 was 43 as per the claim petition and so multiplier would be 15. Accordingly, loss of dependency comes to Rs. 1,50,000/-. The insurer of the vehicle is accordingly directed to pay compensation amount Rs. 1,50,000/-. The claimants are also entitled to get Rs. 2,500/- as loss of estate, Rs. 5,000/- as loss of love and affection and Rs. 2,500/- as funeral expenses. Since Rs. 50,000/- was already paid as interim compensation the amount of Rs. 50,000/- is deducted from the total amount and accordingly after deduction total amount which is to be paid comes to Rs. 1,10,000/- The respondent no. 2 /the insurer, is hereby directed to pay remaining compensation amount of Rs. 1,10,000/- (Rupees one lakh ten thousand only) within a period of two months from the date of receipt / production of a copy of this order along with interest at the rate of 6% per annum from the date of filing of the claim case i.e. 31.10.2005 till the date of payment. With above observation and direction the Appeal stands allowed. Praful ( Rakesh Kumar, J.)