SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr. 1 SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr DATE OF ORDER : - 22.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.LR Puniya for the appellants. Mr.Rajesh Panwar, for the respondents. <><><> Heard learned counsel for the parties. These two appeals have been filed to challenged the award dated 24.4.2007 by which the claim case no.42/2005 – Smt. Badu & Anr.Vs. Pappu Ram & Anr. and claims case no.57/2005 – Smt. Gajara & Ors. Vs. Pappu Ram & Anr were dismissed by the Motor Accident Claims Tribunal, Phalodi. Brief facts of the case are that according to the claimants on 19th May, 2005 at 10.45 AM, the respondent Pappu Ram driver of the jeep of the respondent no.2 having jeep no.RJ-19-3507 caused accident resulting into death of one Birma Ram who died on spot and Rama Kishan who died after five days in hospital and also caused injuries to SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr. 2 Smt. Gajara W/o Rama Kishan. Rama Kishan was admitted in Government Hospital on the same day on 19th May, 2005 and he remained hospitalized upto 21st June, 2005 and after his discharge from the hospital, he died five days thereafter. The FIR No.51/2005 was also lodged on the same day i.e., on 19th May, 2005, upon which investigation was started and challan was filed against the respondent no.1 Pappu Ram, driver of the vehicle in the court. One claim petition under Section 163 A of the Motor Vehicles Act, 1988 was submitted by the claimants Smt. Babu & anr. (Claim Case No.42/2005) alleging that deceased was of the age of 55 years and he was earning Rs.3300/- per month. It was also alleged that claimants had to incur expenses for funeral of Rs.5,000/-, have incurred expenses of Rs. 1, 000/- for transportation, have incurred expenses for bringing the victim's cloths and shoes of Rs.2,000/- and the wife and children lost love and affection and, therefore, claim of Rs.30,000/-. For Children another Rs.30,000/- were claimed on account of loss of love and affection of the father, for mental agony Rs.3 lacs and SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr. 3 intotal Rs.8,03,600/- were claimed. In claim case under Section 166 of the Motor Vehicles Act, 1988 No.57/2005 filed by Smt. Gajara & Ors the claimants stated that deceased was of the age of 50 years and was earning Rs.6,000/- per month and on various counts claimed total compensation of Rs.68,68,931/-. In the tribunal the claimants produced witnesses and voluminous documentary evidence in support of their claim whereas the respondents gave their statement. The learned Motor Accident Claims Tribunal held that the claimants failed to prove that the death of two victims was due to injuries suffered by them in the accident. The tribunal was of the view that the deceased Rama Kishan himself was driving the vehicle which met accident and Pappu Ram was not the driver. The learned tribunal held the bodies were not postmortemed and, therefore, death of two person in the accident is not proved. Learned counsel for the appellant submitted that the voluminous documentary evidence has been discarded only on the basis of statement of one of the claimants witnesses SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr. 4 Champa Lal whose statement cannot be relied upon and cannot be believed because of the reason that he himself in the investigation of the criminal case gave his statement that the driver of the vehicle was Pappu Ram. The owner of the vehicle was given notice. In response of which, he admitted that driver of the vehicle was Pappu Ram. It appears that to save the respondents, the witness Champa lal gave false statement and that too, contrary to the voluminous documentary evidence. The tribunal also observed that since postmortem was not conducted of the two bodies, therefore, their death due to the accident is not proved. It is submitted that ground cannot be sufficient for holding that the victim did not die in accident. Learned counsel for the respondent vehemently submitted that it is clear from the unequivocal trustworthy statement of Champa lal that Rama Kishan was driving the vehicle and he took the vehicle forcibly and that was not in the central of the owner of the vehicle and in that situation, the respondent no.2 – owner of the vehicle cannot be held liable for any damages. It is submitted that even if the two SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr. 5 died in the accident even then Rama Kishan since he himself caused the accident, therefore, is not entitled to any claim whereas due to death of Virma Ram, the claimants could have claimed damages only from Rama Kishan for causing death of Virma Ram because of rash and negligent driving by the Rama Kishan and that too at the time when the vehicle was under the exclusive control of Rama Kishan and was not under the control of the respondent no.2 Babulal – the owner of the vehicle then Rama Kishan had died and therefore, claimants for Virma Ram's case cannot get any compensation. I considered the submission of learned counsel for the parties. The finding of the tribunal about the fact of death of two victims in this accident is core question involved in these appeals. It may be relevant to mention here that in reply to the claim petition, the owner and driver of the vehicle both stated that the respondent-owner of the vehicle Babulal was not at his house and Rama Kishan took the vehicle of Babulal from the ladies of the house in absence of the respondent no.2 – the owner of the vehicle SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr. 6 and Rama Kishan caused the accident. In view of the above reason, this fact cannot be disputed that accident was caused by the jeep of the respondent Babu Lal. The next question arises is that whether at that time Rama Kishan was driving the vehicle or Pappu Ram was driving the vehicle. For this, the FIR was submitted on the same day and copy of which has been placed on record by the claimants and in the FIR which was submitted forthwith there is mention that Pappu Ram was driving the vehicle. In police statement, even Champa Lal also gave statement that driver of the vehicle was Pappu Ram. After recording evidence, the independent investigating agency found that Pappu Ram was the driver of the vehicle in question which was seized by the Investigating agency and the challan was filed against Pappu Ram. Against all these documentary evidence, there is one statement of Champa Lal that Rama Kishan was driving the vehicle. He was confronted with his earlier statement recorded under Section 161 Cr.P.C. upon which he stated that he did not give said statement in the criminal case. In view of the above, the credibility of SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr. 7 Champa Lal is very doubtful. In addition to the above, the respondent no.2 owner of the vehicle himself informed the investigating agency in response to the notice issued to him that the vehicle was with the driver Pappu Ram. The Motor Accident Claims Tribunal should have carefully looked into this aspect of the matter and should not have given undue weightage to the statement of the witness contrary to the documentary evidence as well as all circumstantial evidence which supports the view that vehicle was driven by respondent Pappu Ram. In view of the above finding of the tribunal that the deceased Rama Kishan forcibly took the vehicle is contrary to the stand taken by the respondents in their reply when they stated that Rama Kishan took the vehicle with the permission of the ladies of the house. Pappu Ram was driving the vehicle and not Rama Kishan. Certain inconsistency or contradiction in the statement of other witnesses cannot effect the credibility in the evidence produce by the appellants for proving the fact that the accident was caused by Pappu Ram by driving the vehicle of SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr. 8 respondent no.2 and the two of the persons died in the accident. Even if the postmortem was not conducted of the bodies of these two victims even then this fact is not in dispute that the victims Rama Kishan died just few days after the accident i.e., after five days after his discharge from the hospital only. As per the indoor ticket itself it is clear that victim was brought in the hospital in very serious condition with head injury and from complete record obtained from the Government hospital by the investigating agency in criminal case, copies of which have been placed on record by the claimants, clearly show that the victim Rama Kishan was given treatment in the hospital and he remained there upto 21st June, 2005. Therefore, it is clear that both the victims died in the accident. So far as quantum is concerned, in claim case no.42/2005, the claimants claimed compensation under Section 163A of the Act of 1988. According to the claimants the deceased Virma Ram was of the age of 55 years at the time of accident, but in fact, claimant Smt. Badu w/o Virma SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr. 9 Ram had shown her age as 55 years in the year 2005 itself. Therefore, it appears that the age of the deceased Virma Ram has been shown less by the claimants. In Ex.P/177 ( Panchnama ) for the body of the deceased Virma Ram his age is shown as 55 years, but Virma Ram was elder to claimant Smt. Badu who was of the age of 55 years. Therefore, reasonable inference can be drawn that Virma Ram was of the age of 60 years at the time of accident. In view of the above, the income of the deceased can be assessed to be Rs.3,000/- per month in the light of evidence produce by the claimants then multiplier of 5 can be applied as per the second schedule for Section 163A. In view of the above reasons, the monthly income of the deceased was Rs.3,000/- per month i.e., Rs.36,000/- per annum and by applying multiplier of 5 it comes to Rs.1,80,000/- and as provided under second schedule itself 1/3rd out of this amount is required to be deducted, hence, deducted, the total amount comes to Rs.1,20,000/-. The claimants are also entitled to Rs.20,000/- to appellant no.1 Smt. Badu for loss of love of her husband Rs.20,000/-. SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr. 10 In view of the above the appeal of the appellant Smt. Badu (S.B. Civil Misc. Appeal No.1357/2008) is allowed. The appellants are held entitled to claim of Rs.1,20,000+20,000+15,000, Total Rs.1,55,000/- with interest from the date of filing of the claim petition before the Motor Accident Claims Tribunal @ 6 ½ % per annum. In claim case no.57/2005 filed under Section 166 of the Motor Vehicle Act claimant Smt. Gajara has shown her age as 50 years in the claim petition whereas in her statement in the court,she admitted her own age as 70 years. She also admitted that her husband Rama Kishan was sick and had urine trouble also. She tried to show her husband's age less than 70 years but that cannot be accepted. The age of the deceased Rama Kishan cannot be less than 75 years as his age cannot be less than the age of his own wife. In view of the above, the deceased's Rama Kishan age is accepted as 75 years and he was an old person with some ailment and his notional income is accepted as Rs.3,000/- per month. Therefore, claimants are entitled SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr. 11 compensation of Rs.3,000X12X5 deducted by 1/3rd of the amount looking to the possibility of no future increase in the income of the deceased Rama Kishan it is held that the claimants are entitled to Rs.1,20,000/- on this count. It claimants are also entitled to; Rs.15,000/- to appellant Smt. Gajara for her loss of love of her husband and Rs.10,000/- to each of appellants nos. 2 to 4 on account of loss of love of their father. The claimants suffered expenditure of Rs.34,000/- for treatment of the deceased. Appellants are not entitled to any other claims. The total amount comes to Rs.1,20,000+15,000(to appellant no.1) +30,000 (to appellants nos. 2 to 4) + 34,000, total Rs.1,99,000/- looking to age of appellant no.1 and other appellants all will get equal amount out of Rs.1,20,000/- and 1,34,000/-. The appellants shall be entitled to interest @ 6.5% per annum from the date of claim petition. Smt. Gajara in her statement stated that she suffered seven fractures and produced the discharge ticket Ex.167 and bills of medicines Ex.168 to 176 by which she paid total Rs.4031/- for medicines but to prove fractures, she did not SBCMA No.1084/2008 Smt. Smt. Gazra &Ors. Vs. Pappu Ram & Anr. And SBCMA No.1357/2008 Smt. Badu & Anr. Vs. Pappu Ram & Anr. 12 produce any medical evidence. Since the appellant Smt. Gajara has proved her paying medical bills of Rs.4031/-, therefore, it is held that she is entitled to Rs.4031/- on this count and she is also held entitled for notional compensation of Rs.5,000/-. Therefore, it is held that claimant appellant Smt. Gajara is entitled to compensation of Rs.9031/- with interest @ 7.5% per annum from the date of filing of the claim petition. Consequently, both the appeals of the appellants are allowed to the extent mentioned above. (PRAKASH TATIA), J. c.p.goyal/-