IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.521 of 2004 1. KALPANA DEVI, Widow of Late Shambhu Nath Pandit alias Shambhu Pandit, Son of Sri Thakum Pandit. 2. Guria Kumari. 3. Dulari Kumari. Both minor daughter of Late Shambhu Nath Pandit Minor daughter represented through their natural mother, guardian and next friend Appellant No. 1. All resident of Village Ghoghas, Police Station – Belhar, District – Banka. At present Appellant No. 1 with her minor daughters, residing with her parents at village Tari Manjhgai, Police Station Belhar, District – Banka. ………. Appellant / Claimants. Versus 1. JHAGRU PANDIT, Son of Late Chhotan Pandit. 2. Jhumri Devi, wife of Jhagru Pandit. Both resident of village – Ghogha, Police Station – Belhar, District – Banka. …….. Respondent / Respondent Ist Party. 3. United India Insurance Ltd. having its registered Head Office at United India House, 24 Whites Road, Madras – 600014. 4. United India Insurance Co-Ltd. (Durgapur Branch Office) through Its Branch Manager at Durgapur, Police Station – Durgapur, District – Burdawan (W.B.). …….. Respondent / Respondent 2nd Party. 5. Kishori Prasad Yadav, Son of Late Punai Prasad Yadav (Driver of the Vehicle) resident at village – Mushari, Police Station – Sultanganj, District – Bhagalpur. 6. Dina Nath Ghosh, Son of Late A.R. Ghosh (owner of the vehicle) at Kalika Transport Agency G.T. Road, Durgapur, P.O. and Police Station – Durgapur, District – Burdwan (W.B.). ……… Respondent / Respondent 3rd Party. ----------- For the Appellants :- Dr. M. Kumar, Advocate. For the Respondent No. 1 & 2 :- Mr. Samir Kumar Ranjan, Advocate Mr. Anil Jaiswal, Advoate. For the Respondent No. 3 & 4 :- Smt. Seema, Advocate. For the Respondent No. 6 :- Mr. Randhir Kumar Singh, Advocate Mr. Sanjay Kumar Pandey, Advocate 2 29. 19.08.2010 Heard learned counsel for both the parties. 2. This miscellaneous appeal is directed against the order dated 5th August, 2004 passed by the 4th Additional District Judge, Bhagalpur – cum – Motor Accident Claim Tribunal in Claim Case No. 39 of 1997 by which claim of the claimant has been disallowed and claim case has been dismissed. 3. The claimants are the widow and two minor daughters of the deceased represented through their mother, the natural guardian regarding the death of Shambhu Nath Pandit @ Shambhu Pandit by falling down from the roof of Kalika Bus bearing No. WB39-2285 on 11.11.1996 while traveling as passenger. 4. The case of the claimant that Shambhu Nath Pandit @ Shambhu Pandit along with his father and younger brother was traveling from Raniganj to Belhar on Kalika Bus bearing No. WB 39-2285 on 11.11.1996 and the deceased was accommodated on the roof of the bus along with other passengers. Further case is that the driver of the bus was driving the bus rashly and negligently and which caused the deceased fell down from the roof of the Bus when the bus reached 1/2 K.M. away from Jalebia 3 More within Belhar police station, on Hulla by the passengers the Bus stopped there and found that the deceased was badly injured and hence he was hospitalized for medical treatment where he succumbed to injury. The driver of the vehicle did not stop the bus at Belhar rather went to Sultangaj and fled away. However the First Informant Report was lodged at Belhar P.S. on 11.11.1996 at 8.30 P.M. and on the said petition the case proceeded. 5. On the basis of pleading of the parties the following issues were framed:- (i) Whether claim case as framed is maintainable? (ii) Whether the claimants have got cause of action to file the present case? (iii) Whether accident took place due to rash and negligent driving of the vehicle by its driver? (iv) Whether the amount of compensation as claimed by the claimants is high and excessive and if so what should be appropriate compensation in this case? (v) Whether the Insurance Company Ltd. is liable to pay the amount of compensation to the driver? 6. However during the enquiry four witnesses 4 examined on behalf of the claimant are A.W. 1 Kalpana Devi, A.W. 2 Ram Swarup Pandit, A.W. 3 Arvind Pandit and A.W. 4 Nunu Lal Mishra. The documentary evidence adduced are Ext. 1 is the fardbeyan, Ext. 2 is the certificate of Head Master, Ext. 3 is a driving license, Ext. 4 is the Insurance Policy, Ext. 5 is the inquest report, Ext. 6 is the accident report and Ext. 7 is the postmortem report. 7. After considering the oral and documentary evidence the Tribunal held issue no. 3 that the claimant did not prove that the occurrence took place due to rash and negligent driving of the vehicle and while deciding issue no. I, II and IV hence held that claim case is not maintainable, claimant has no valid cause of action nor entitled to get compensation. 8. Learned counsel for the appellant has challenged the order on two grounds that the negligence is one of the species and jurisdiction of the Tribunal is not restricted to claim arising out of negligence only and victim is liable for damages who suffer on account of accident even without negligence and has relied upon decision reported in 2001 (1) PLJR 184 and secondly that the Tribunal has wrongly discarded the evidence of A.W. 2 & 3 on 5 erroneous consideration and did not consider FIR to hold that there was negligence on part of the driver and the claim of the claimant about negligence is fully established and has relied upon a decision reported in 1991(1) PLJR 58 (SC) and has contended that the claimant was entitled to compensation as was 25 years old and his earning was Rs.3,000/- per month. 9. Learned counsel for the owner, however, denied the accident and even denied all the facts, however, owner did not appear before the Tribunal but support the finding recorded by the Tribunal. 10. Learned counsel for the Insurance Company, however, contended that since the Tribunal has not given any finding except on issue no. 3 and hence the case is required to be remanded under Order XLI Rule 23 and has further contended that since the accident took place while the deceased was travelling on the roof of the bus and hence insurer is not liable for the said accident as it is violation of the policy and further it amounts to contributory negligence to the extent of 50% if any compensation is to be granted to the claimant. 11. Hence on the respective submission of the 6 parties the question for consideration is whether there was occurrence took place due to negligence of the driver and whether the claimant is entitled to claim even if the negligence is not established and whether the claimant is entitled for claim. If the claimant is entitled to claim what is the amount of compensation to claimant for the death of deceased and whether the claimant entitled to be held responsible for contributory negligence. 12. However, the case of the claimant is that the deceased was traveling in the bus when he met with the accident. However, the owner did not appear in the court below and neither filed any counter affidavit. However, the driver appeared and even filed written statement, denied the accident but has not adduced any evidence nor the Insurance Company has adduced any evidence and hence only evidence on the records is the evidence of claimant. A.W. 1 is the claimant the wife of deceased has stated about the occurrence and death of the deceased by the said occurrence. However she is not any eye witness to the occurrence A.W. 2 has supported the prosecution case about the accident and he claims to be traveling on the same bus and has stated that he was sitting on the bus the 7 conductor asked him to go at the roof and he also went on roof and the occurrence took place as the driver was driving the bus at a high speed by which S. N. Pandit injured and in cross examination however stated that about 200 persons were travelling in the bus and 25 persons on the top of the bus. P.W. 3 has also supported the case of the claimant that the victim was travelling on the bus. 13. However, the Tribunal rejected the evidence of A.W. 2 and 3 on the ground that he is close relation of the victim and the fact that his name was not mentioned as a witness in the First Information Report. However, merely because the name of witness not mentioned in the First Information Report their evidence cannot be out right rejected on this ground alone. Moreover, the First Information Report and the inquest report which are adduced in evidence as Ext. 1 and 5 suggest the accident causing death of the deceased. However, Tribunal disbelieved the evidence on the ground that since this witnesses stated that the accident took place on 10.11.1996 but the First Information Report was lodged on 11.11.1996. However, the accident took place on 10.11.1996 in evening at 2:00 to 4:00 P.M and the victim 8 was taken to hospital FIR lodged on 11.11.1996 the very next date but evidence disbelieved on ground of contradiction in mentioning the time of occurrence as 2:00 P.M. or 4:00 P.M. However, there is evidence that the victim fell down taken to hospital and was treated there at hospital and FIR was lodged on the next day some of the witnesses named. However, the evidence of the witnesses has been disbelieved on the ground that the FIR was not lodged on 10.11.1996 but on 11.11.1996. But it is a matter of common experience that when a person is fighting death due to the injury by the accident, the normal course is that the whole exercise is first to save the victim and not to prepare for a claim as it was not a case of serious offence or a crime that the FIR must have been lodged at the earliest but a case of accident of a motor vehicle and hence there is no reason to reject the witness on the ground that the FIR was not lodged on 10.11.1996. However, even if the name of the witnesses not mentioned in the FIR is no ground to reject the evidence of those witnesses on that ground alone, if the evidence of the witnesses are just and reasonable, there is no inherent infirmity in the evidence of the witnesses their evidence should not be rejected. 9 However, the rejection of the evidence on the ground that there is difference in time of couples of hour as some stated 2:00 P.M and some as 4:00 P.M. when the 2:00 P.M and 4:00 P.M so proximate that rejection of evidence on that ground neither legal nor reasonable as the Tribunal did not consider that a rustic witnesses of the village may not be able to state the exact time. Hence, taking into consideration of witnesses I find and hold that the claimant has prima facie established. 14. However, learned counsel for the appellant has relied upon decision reported in 2001 (1) PLJR 184 (SC) where it has been held that even if there is no negligent on the part of the driver/owner of the offending vehicle, driver/owner they are liable for damages to the person who suffered on account of such accident and claimant is entitled to get compensation and the Supreme Court directed the Insurance Company to pay the amount fixed as compensation. 15. In decision reported in 1991 (1) PLJR 58 it has been held that the burden is on the driver of the vehicle to show that he was not rash and negligent. However, under the facts and circumstances neither the driver nor the 10 owner has come to discharge this duty, as no evidence adduced by the owner or the driver nor even the Insurance Company has come forward to adduce any evidence whereas A.W. 1 & 2 deposed that occurrence took place due to rash and negligent driving of the vehicle which has not been rebutted and hence on that score also claimant has established that accident took place due to rash and negligent driving of the vehicle. 16. In decision reported in 2007 (3) PLJR 217 and 157 it has been held that the Tribunal has considered illegality by holding that there is no reliable evidence on the record that in the said accident the vehicle in question was involved which was being driven rashly and negligently by bus driver and in that facts and circumstances of the case the impugned order passed by the Tribunal was set aside which is not the case here. 17. Hence, under the facts and circumstances it can well be inferred that the finding recorded by the Tribunal that the claimants are not entitled to compensation since they have not proved that the occurrence took place due to rash and negligent driving of the vehicle, is not sustainable either in law or on fact as discussed above and is hereby 11 set aside, even if, negligence is not proved on principle enumerated in decision reported in 2001(1) PLJR (SC) 184I as well as even on fact it is established by evidence of A.W. 2 and 3 that occurrence took place due to rash and negligent driving of the vehicle which has not been rebutted by either the owner, driver or Insurance Company. I find and hold that since the deceased died out of the use of the said bus is entitled for claim Section 166 of the Motor Vehicles Act on both counts claimant is entitled to claim. 18. Now the question concerns about the quantum. However, the claim of the claimants that the victim was earning Rs.3000/- per month. However, no paper regarding the earning has been provided though it has been claimed that the victim was earning Rs.1200/- per month from service and Rs.1800/- from cultivation. It is true that there is no documentary evidence regarding the earning but there is oral evidence. However, one cannot expect of any documentary evidence to be produced by the claimant regarding the income of a daily wager or labourer or a person like the deceased and the claim of claimant cannot be rejected or disbelieved about the income of deceased 12 from private source or agriculture. However, statutory income of Rs.15,000/- per month is computed to person who is not earning and is child or old infirm person. However, it is not for a person who is earning and who is more than 18 years. Here under the facts and circumstances of the case, the victim was 25 years old and there is evidence that he was earning though there is no documentary evidence about his income. However, no documentary evidence was produced that he was employed in private employment or was getting agricultural income to the tune of Rs.1800/- per month. However even if come to a reasonable approach a minimum wage as applicable on the date may be proper to ascertain the income. However, the accident took place in the year 1996 and at that time the minimum wage even computing the minimum wage as Rs.60/- per day then his monthly income comes about Rs.1,800/- and hence taking round about figure as Rs.1,800/- per month the annual income comes to be proximate Rs.18,000/- per annum. However, the victim was about 25 years old and hence claimants are the widow and his minor daughter and hence the multiple of 17 is applicable. However, since 13 computing the 1/3rd of the income having been for the expense on the deceased the saving for the family comes to be about Rs.12,000/- per month and this Rs.12,000/- when multiplied by 17 then the total income for compensation of Rs.2,04,000/-. 19. However, the further point remains about the contributory negligence. Admitted position is that the victim was travelling on the roof of the vehicle and hence it is contended that since the travelling on the roof of the bus by the victim contributed in the accident and has placed reliance upon a decision reported in 2004 ACJ 759. However, the bus was full and deceased was asked to travel on the roof and under the facts and circumstances it was held that the negligence contributed by the victim is 50% and hence I find and hold that he deceased also contributed to the negligence and hence the amount of 50% to be deducted and after deducting the amount the Insurance Company is liable is pay the amount of Rs.1,02,000/- with interest @ 9% from the date of filing to the date of the realization of amount. 20. Hence, the miscellaneous appeal is allowed. Kundan (Gopal Prasad, J.) 14