IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.440 of 2006 SABO DEVI, WIFE OF KISHUN PRASAD KESHRI, RESIDENT OF VILLAGE POTHIYA, POLICE STATION FALKA, DISTRICT KATIHAR, AT PRESENT OF MOHALLA KRISHNAPUR YADAV TOLA, MADHUBANI, POLICE STATION K.HAT, DISTRICT PURNIA. ……….PETITONER. Versus 1. SUJIT KUMAR, SON OF JAGDISH MAHTO, RESIDENCE OF MOHALLA-MANGAL BAZAR, SHIV MANDIR GALI, POLICE STATION AND DISTRICT KATIHAR. 2. THE NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH OFFICE, NH-31, PURNIA. ……….RESPONDENTS. ----------- For appellant: Asha Verma, Advocate. For respondent: Dr. Bidhu Rajan and Mr. Ashok Kr. For New India Assurance Company Ltd: Mr. M. P Jaiswal 11/ 19.11.2010 This miscellaneous appeal directed against the judgment and award dated 25.08.06 & 13.09.06 passed by Sri Abdur Rahman, 2nd Additional District Judge, Motor Vehicles Claim Tribunal, Purnia in claim case no. 82 of 2003, by which the claim petition of the claimant has been rejected. The claimant in the claim petition is the mother of the deceased, the case of the claimant is that the deceased while travelling met with an accident, got injured and succumb to injury by an accident with while traveling on vehicle Mahindra Sawari bearing no. BR 11C 1687, when the Jeep being driven rashly and negligently by the driver collided with back portion of the bus. The deceased was 2 unmarried at the time of accident and was aged about 18 years. It is further alleged that the monthly income of the deceased was Rs. 1500/- to 2500/- per month and the claim for compensation in total is Rs. 2,00,000/- with interest. It is alleged that the said vehicle was insured with New India Assurance Company Ltd. bearing policy cover note no. 7071. The Insurance Company appeared and filed rejoinder asserting that the claimant has to prove the Registration Certificate of the vehicle, copy of FIR and further that the claimant has not furnished the details of the Driving Licence of the driver. After considering the pleading issues were framed by the order dated 03.07.2004, the issues framed are as follows: 1. Whether the claim petition is maintainable or not? 2. Whether the claimant is entitled for any compensation as prayed for on account of death of the deceased Prem Kishore Kesri and to what extent. 3. Whether there was any income of the deceased prior to his death. 4. Whether the driver of the vehicle involved in the accident had any valid Driving Licence and was strictly 3 followed the terms and conditions of the Insurance Policy? 5. Whether on the alleged date of accident, the lvehicle in question was insured with this opposite party. 6. Whether the claimants are entitled to get any r relief or reliefs as prayed for? However, on the issues framed, the party adduced evidence. The evidence adduced on behalf of claimant is PW-1 Sabo Devi, PW-2 Kishun Prasad Keshri and PW-3 Saligram Prasad Keshri. The documentary evidence adduced on behalf of claimant as Ex-1 is fard beyan, Ex-2 is FIR, Ex-3 certified copy of chargesheet, Ex-4 is photo copy of owner book, Ex- 5 is photocopy of Driving Licence, Ex-6 is photocopy of insurance policy and Ex-7 is photocopy of the Post-Mortem Report and thereafter the case of claimant was closed. However, the insurance company & other defendant owner and driver did not adduce any evidence and evidence was closed. The tribunal rejected the claim petition on the ground that though no witnesses have stated that driver of the vehicle of Mahindra Sawari was driving the Jeep rashly & negligently nor stated about the collusion of Jeep with 4 vehicle when fardbeyan mentions about the collusion of Jeep with bus but neither in petition u/s 166 of the M.V Act, 1988 nor witnesses have disclosed about the collusion and even neither the owner nor the driver or the insurer of bus has been made party and since, witnesses are not eye witnesses of collusion of bus with Jeep the petitioner suffers from non joinder of the necessary party. Since the claimant has not produced any eye witness of the occurrence and the witnesses are here-say has not whispered about the collusion of the bus with Mahindra Sawari bearing no. BR 11C 1687 and the claimant has made a case of rash and negligent driving and not of collusion of two vehicles, hence the claim is false claim. Learned counsel for the appellant, however, contends that the tribunal while deciding the case take into consideration the evidence of PW-1, 2 and 3 in a narrow compass and they did not take into consideration the documentary evidence which itself suggest the death of the deceased by the said vehicle and the witnesses have stated about rash and negligent driving and even in the charge sheet or FIR filed before the tribunal, mentioned that the accident occurred due to rash and negligent driving and further in the 5 FIR itself there is mention about the collusion but it has been stated that the bus which collided fled away and the registration number of the bus could not be located and hence it is not possible to make the bus a party in the proceeding as neither the owner nor the Insurance Company of the said bus was located and it is further submitted that even if assuming that the death was due to the collusion of two vehicles and it is the claimant to choose any one and claim petition cannot be rejected for the reason that the bus which collided with Mahindra Sawari Jeep bearing registration no. BR 11C 1687 could not be located and ascertained and run away after accident moreover, it is not a collusion but in FIR alleged that Jeep dashed with back portion of the bus and there is no evidence or material to suggest the negligence of the bus. Learned counsel for the owner/ Insurance Company, however, contended that since, the witnesses adduced that they are not the eye witness and further since, the bus which is alleged to have dashed by Mahindra Sawari bearing no. BR 11C 1687 was involved in the accident may be liable for composite and contributory negligence and hence, the owner of the Insurance Company are not liable 6 and asserts that the case may be remanded back. However, respective submission of the parties, the questions for whether the claimant is entitled for compensation suspended in the eyes of law. However, from the claim petition itself, there is specific mention that the accident took place while the deceased was travelling on the said Mahindra Sawari bearing no. BR 11C 1687 and accident took place due to rash and negligent driving of the Mahindra Sawari Jeep and it has also been asserted that the said vehicle was insured and the National Insurance Company was the insurer, Insurer of the said vehicle. The insurance covered has specifically been mentioned in the claim petition. PW-1 is the mother of the deceased Prem Kumar Kesri and she stated that her son had gone to brought fruits by the said vehicle Mahindra Sawari bearing no. BR 11C 1687 and the accident took place due to rash and negligent driving of the said vehicle and deceased Prem Kumar Kesri received injuries by which he succumb. She has also stated that he was earning Rs. 1500/- to 2500/- per month and was unmarried. However, in her cross examination, she stated that the accident took place in the year 2003 and her son was 18 years old and denied the 7 suggestion that the boy was minor at the time of accident. However, there is no challenge about her evidence that the accident took place due to rash and negligent driving of the vehicle by which he received injury and succumb. AW-2 is Kishun Prasad Kesri, he is the father of deceased Prem Kumar Keshri. He has also supported the case of the claimant about the death of her son due to accident by the vehicle Mahindra Sawari bearing no. BR 11C 1687and was earning Rs. 1500/- to 2000/- per month and only suggestion given that it is not true that his son was minor at the time of accident and that she had deposed falsely. However, there is no challenge in cross examination regarding his death due to rash and negligent driving of the driver of the vehicle Mahindra Sawari bearing no. BR 11C 1687. PW-3 is Shaligram Prasad Kesri, however, he also have come to depose and also supported the case of the claimant about the accident, while deceased Prem Kumar Keshir was travelling from the said vehicle Mahindra Sawari bearing no. BR 11C 1687 and hence all the three witnesses supported the case of the claimant about the accident by the said vehicle which was being driven rashly and negligently by which the accident took place. However, Ex-2 is the FIR 8 by one Kashi Prasad Sharma on the basis of which FIR was lodged and in the said fard beyan he mentioned about the accident by the said vehicle Mahindra Sawari bearing no. BR 11C 1687 and it has also been alleged that the said vehicle was being driven rashly and negligently and the accident took place due to rash and negligent driving of the vehicle Mahindra Sawari bearing no. BR 11C 1687 and the charge sheet which is Ex-3, mentions that the accident took place due to rash and negligent driving of the driver of the vehicle Mahindra Sawari bearing no. BR 11C 1687. Ex-4 is the photocopy of owner book, Ex-5 is the photocopy of Driving Licence, Ex-6 is the photocopy of Insurance Policy and Ex-7 is the photocopy of Post Mortem Report. However, the learned counsel for the respondent has strongly relied upon Ex-1, which is statement of the father of the deceased which had been recorded as fard beyan and in that document also it is specifically stated that he learnt about the accident of his son and went to Sadar Hospital, Purnia where he found his son injured and then he learnt about the accident by vehicle Mahindra Sawari bearing no. BR 11C 1687, which met with an accident by collusion with the bus and the death of the deceased due to said collusion while 9 treatment in the hospital and however no evidence has been adduced by the owner or the Insurance Company and hence, on the basis of these evidence, it can well be infer or to come to an irresistible conclusion that the deceased Prem Kumar Keshri died due to accident by the vehicle Mahindra Sawari bearing no. BR 11C 1687, which was insured with National Insurance Company. However, the tribunal without going into these facts and taking into consideration the oral and documentary evidence come to a conclusion that there was collusion between the bus and Mahindra Sawari bearing no. BR 11C 1687, and since, the said bus was not made a party and hence claim petition suffer from non-joinder. However, tribunal has neither taken a plea of contributory or composite negligence nor any evidence adduced that the occurrence took place due to negligence of the driver of the bus. The tribunal misconceived itself in holding that the claim petition is not maintainable for non-joinder of party merely inferring on few lines in the fard beyan. Even if assuming that there is collusion between the bus and Mahindra Sawari bearing no. BR 11C 1687, in view of evidence that accident took place due to negligence of Mahindra Jeep and no incidence that occurrence took place due to negligence of the driver of bus, 10 it can well be infer that the deceased died out of negligence of Jeep when it hit the back portion of the bus and number of bus could not be ascertained and no evidence adduced that the bus driver was negligent. Hence, once it is established that accident took place due to rash and negligent driving of the owner and insurer liable for. Moreover, if there is composite or contributory negligence, it is well settled that it is choice of claimant to choose who will be tort feasor hence, the judgment and award of the tribunal is not sustainable in the eye of law and is hereby set aside. Hence on the discussion that the accident due to rash and negligent driving of the driver of Mahindra Sawari bearing no. BR 11C 1687 and in consequence the insurer of the Mahindra Sawari bearing no. BR 11C 1687 is responsible for paying the compensation to the claimant. However, in evidence it has come from the evidence of PW- 1 to PW-3 and Post mortem Report that the deceased was 18 years old and it has also come in evidence that the deceased was earning Rs. 1500/- to 2500/- per month. However, even taking evidence of earning of Rs. 1500/- per month, the annual income comes to Rs. 1,80,000/- per year. However, the age of the victim is 18 years but the 11 age of the mother of deceased is 48 years and hence as per Schedule-II of the Motor Vehicle Act for the age group of 45 to 50 the multiple of 13 is applicable. Hence, applying the multiple of 13 the total claim comes to Rs. 2,34,000/-. However, deducting the 1/3rd regarding the expenditure on the deceased, the total dependency comes to Rs. 1,56,000/-. However, even from Rs. 1,56,000/-, Rs. 50,000/- has been awarded as interim compensation to the claimant and hence, the claimant is entitled to the tune of Rs. 1,06,000/- with interest @ 9 per cent per annum from the date of institution of the claim petition till date. However, in addition to that Rs. 2000/- to be added as a funeral expense and hence, the insurance company is directed to pay the amount within two months. The appeal is allowed. Ranjan ( Gopal Prasad, J.)