'v./ .^ .^.-'v, HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta.C.J. & Hon'ble Shri Sunil Kumar Sinha. J. M.A.No. 918 of 2003 Smt. Malti Bai & Others Vs. Mohammed Jahir Khan & Others ORDER For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA 3 ^L^y^-- / Sd/- Chief Justice Post for Order: g: ////2010 Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Appellants Claimants ^ ^- Respondents M.A.No.918of2003 1 Smt. Malti Bai widow of late Ramlal Sahu, aged about 40 years 2 Kapil Dev S/o late Ramlal Sahu, aged about 20 years, occupation student 3 Ku. Toshan D/o late Ramlal Sahu, aged about 17 years, occupation student 4 Ku. Rupmati, D/o late Ramlal Sahu, aged about 15 years, occupation student 5 Ku. Madhumati, D/o late Ramlal Sahu, aged about 12 years, occupation student Appellant no. 3 to 5 are minors through legal guardian mother Smt. Malti Bai, widow of late Ramlal Sahu All are R/o Village Bodhra, Post Dhaneli, Tahsil Gurur, District Durg (C.G.) Versus 1 .Mohammed Jahir Khan, S/o Dada Miyan, Aged about 50 years, R/o Sinhawan Chowk Dhamtari, thana Kotwali, District Durg (C.G.) Driver 2 Mohammed Hasan, S/o Mohd. Jamal Khan, R/o Adharsh Nagar, Behind Bal Mandir, Tahsil & District Dhamtari (C.G.) Owner 3 Oriental Insurance Co. Limited, through Branch Manager, Oriental Insurance Co. Ltd. Dhamtari, Branch Dhamtari, District Dhamtari (C.G.) (Appeal under Section 173of the Motor Vehicles Act) ^:. ^^^^^ /.I ^.-^ -V 'w^f M.A.No. 918 of2003 ^'' Appearance: Mr. Vishnu Koshta, Advocatefor the appellants/claimants. None for respondents 1 to 2. Mr. A.K. Athaley, Advocate for respondent No. 3/lnsurance Company. ORDER (^.11.2010) Following order of the Court was delivered by Sunil Kumar Sinha. J. (1) Being aggrieved with the award dated 11th of July 2003, passed in Claim Case No. 24/2002 by the Additional Motor Accident Claims Tribunal, Balod, District Durg, the appellants/claimants have filed this appeal for enhancement u/s 173 ofthe Motor Vehicles Act. (2) The facts, briefly stated, are as under:- The appellants/claimants, unfortunate widow, son and daughters of deceased- Ramlal Sahu, filed a Claim Petition u/s 166 of the Motor Vehicles Act claiming compensation of Rs.22,61,000/- for his death in a motor accident which took place on 25.1.2002 on account of rash and negligent driving of taxi-jeep Mahindra No. CIS 8208 by its driver. The Tribunal, on a close scrutiny of the evidence led before it, held that it was a case of contributory negligence and 'the deceased also contributed in the accident to the extent of 30%. The deceased was a school teacher. The appellants pleaded that he was earning Rs.9,000/- per month. A salary certificate (Ex.-P/5) issued by the Principal, Government High School, Purur was filed in which the basic pay of the deceased is mentioned as Rs.6,200/- and it is also mentioned that the deceased was getting dearness allowance of Rs.2,666/- and thus he was getting a total sum of Rs.8,866/- per month. This certificafe .^^isai^^, •i •:,,..i^.' ^••' M.A.No.918of2003 was not proved as no one was examined from the office of the Principalor from any other Government Office relating to the deceased. The Tribunal, therefore, presumed that the deceased must be earning Rs.5,000/- per month as school teacher. By deducting Rs.2,000/- per month towards personal expenses of the deceased, the dependency was worked out to Rs.3,000/- per month and Rs.36,000/- per annum. The deceased was aged about 45 years. The Tribunal, therefore, applied multiplier of 13 to the annual dependency of Rs.36,000/- and the compensation was worked out to Rs.4,68,000/-. The Tribunal also awarded Rs.3,000/- as loss of consortium to the widow and Rs.2,000/- towards funeral expenses and the total amount of compensation was worked out to Rs.4,73,000/-. From this amount the Tribunal deducted Rs.1,41,9007- being 30% on account of contributory negligence of the deceased and the amount of compensation was worked out to Rs. 3,31,100/- which the Tribunal awarded to the appellants as compensation for the death of deceased- Ramlal Sahu. The Tribunal also awarded interest at the rate of 6% per annum from the date of filing of the Claim Petition till the date of actual payment. During the pendency of this appeal, the appellants/claimants filed an application (I.A. No. 1/2010) under Order 41 .Rule 27 C.P.C. for production of additional evidence regarding the income ofthe deceased. (3) Mr. Vishnu Koshta, learned counsel appearing on behalf of the appellants, while arguing on I.A. No. 1/2010^ submitted that the deceased was a government teacher and was earning about Rs.9,000/- per month. A certificate (Ex.-P/S) was also produced by the claimants but unfortunately no witness from the concerned office (.. ^' M.A.No.918of2003 was examined to prove the contents of the certificate (Ex.-P/5). He submitted that the appellants are illiterate, therefore, even after due diligence they could not produce any witness along with record to prove such income of the deceased. He prayed for an opportunity to adduce further evidence on the income of the deceased. (4) On the other hand, Mr. A.K. Athaley, learned counsel appearing on behalf of respondent No.S/lnsurance Company, f opposed these arguments and supported the award passed by the Claims Tribunal. (5) The provisions of Order XLI of the First Schedule of the Code of Civil Procedure, 1908 have been made applicable mutatis mutandis to the appeals preferred to the High Court u/s 173 of the Motor Vehicles Act by virtue of sub-rule (3) of Rule 242 of the M.P. (C.G.) Motor Vehicles Rules, 1994. Rule 27 of Order XLI provides for production of additional evidence in Appellate Court in the following circumstances: "(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause /.^!i""" //^ M.A.I4Q,918^f2003 the Appellate Court may allow such evidence or document to be produced, orwitness to be examined." (6) Admittedly, thedeceased was working as a Government Teacher. His salary certificate has been filed as Ex.-P/S. In the said salary certificate, it has been shown that he was getting Rs.6,200/- as basic pay and was also getting Rs.2,666/- as dearness allowance, which shows that the deceased was getting Rs.8,866/- per month as his salary. The Tribunal has assessed the salary of the deceased as Rs.5,000/- per month on presumptions. Ignoring the oral evidence of Kapil Dev (AW-1) and Surendra Kumar Sinha (AW- 2), the presumption drawn by the Tribunal regarding income of the deceased is baseless. The salary certificate (Ex.-P/5), filed by the appellants, therefore, was a relevant document. The appellants appear to be IIIiterate persons, therefore, the appellants could not prove the contents of the salary certificate of the deceased. It appears that even after exercise of due diligence, they could not produce any person as witness from the concerned office along with record to prove the salary certificate of the deceased during the course of hearing ofthe Claim Petition. (7) Jherefore, looking to the benevolent nature of the motor vehicle legislation and with a view to give complete justice to the parties, we deem it appropriate to allow this application for permitting the appellants to adduce evidence to prove the income of the deceased at the time of accident. Y-c^ '•:^^^ife,. ^1 ^3^ M,A. No. 918 of2003 (8) I.A. No. 1/2010, therefore, is allowed and the appellants/claimants are permitted to adduce evidence to prove the income of the deceased. (9) Accordingly, the appeal is partly allowed. The finding of the Tribunal on issue no. 3 is set-aside, The matter is remanded to the Tribunal for limited purpose of recording a fresh finding on issue no. 3 after giving due opportunities to the parties to lead evidence on ^ issue no. 3 alone. The findings recorded by the Tribunal on all other issues i.e. issue no.1, issue no. 2, issue no. 4 and issue no. 5 are confirmed. The amount already awarded to the appellants/claimants shall be adjusted in the amount to be awarded after the fresh award is passed. (10) Registry is directed to send back the records immediately. With a view to avoid further delay, it is directed that the parties shall remain present before the Tribunal on 3.1.2011. Needless to say that the Tribunalshall expedite the hearing of the Claim Petition at the earliest. (11) The appeal isallowed to the extent indicated above. (12) No orders as to the cost. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti