AF§ c._.——/ ‘A HH:COURT OF CHHATTISGARH, BILASPUR IG CORAM: Hon’ble Shri Raieev Gugta, C.J. & Hon’ble Shri Sunil KUmar Sinha J M.A. No. 874 Of 2002 Smt. Shanti & Others Vs. Banarasi & Others ORDER For consideration . ¢ Sd/— Sunil Kumar Sinha Judge HO’BE NL SHRI J USTICE RAJEEV‘GUPTA w/ Sd/- "’E‘£Fiu’si3e‘ 1/201 0 ‘ i 1 . J Post for Order :3/05/201 O ; Scu— Sunil Kumar Slinhar Judge /? A w ‘. ‘ 3 ' i / 1 f L @ ’ ISC APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE f ACT, 1988 l Appearance Mr. A.N. Bhakta, Advocate for the appellants. Mr. S.K. Agrawal, Senior Advocate with Mr. Anand Kumar Gupta, Advocate for respondent No.3. None for respondents 1 & 2. ORDER (3 .o5.2o10) of the Court was delivered by order Following Sunil Kumar Sinha, J. w ‘ i (1) i Being aggrieved with the award dated 28.8.2002 passed in Claim Case No. 8/99 bv‘the First Additional Motor Accident Claims Tribunal, Raiéarh, the appellants/claimants have filed this appeal. (2); By th v i said award the claim petition filed by the appellants/claimants has been dismissed by the Claims Tribunal (3) ' The facts, briefly stated, are as under:- , L The claimants, unfortunate widow and children of deceased- g Chudamani, tiled a claim petition u/s 166 of the Motor Vehicles Act claiming compensation of Rs.12,72,000/- for his death in the motor i accident which took place on 9.3.96 when the deceased was dashed by the offending bus bearing registration No. CPL 8074 on account of rash and negligent driving of the said bus by its driver. i The claimants pleaded that on 9.3.96, the deceased was going on his bicycle and was, accompanied by Sobharam and Niranjan. g l [ When they were on the way to Patthalgaon the offending bus i which was coming from Ludang and was gomg towards l i Patthalgaon dashed the bicycle of the deceased due to which the Z deceased died on the spot. The vehicle was being driven rashly. i and negligently. The appellants pleaded that the deceased was i l e 3 X M.A. N0. 874 of2002 , aged about 48 years and was earning Rs.24,000/- per year by agriculture and Rs.12,000/— per month by selling grocery articles. The claimants examined Shanti Bai (AW-1) and Sobharam» (AW-2) in support of their claim petition, whereas, nogA/itness was examined by the. respOndents in rebuttal. The Tribunal, on a close scrutiny of evidence led before it, held that the deceased was earning Rs.40/— per day, Rs.1 ,200/- per month and Rs.14,000/— per year by selling vegetables. By deducting Rs.400/- per month towards the personal expenses of the deceased, the monthly dependency was worked out to Rs.800/— “and the annual dependency was worked out to Rs.9,600/—. The Tribunal found the deceased to be aged about 48-50 years and \ applied multiplier of 13 to the annual dependency of Rs.9,600/— and the compensation was worked out to Rs.1,24,800l-., By adding further sum of Rs.9,500/— under other heads, the total amount of compensation was worked out to Rs.1 ,34,300/—. Though it was held ‘ that the appellants were entitled to receive Rs.1,34,300/— as compensation but their claim petition was dismissed on the ground that the appellants could not establish that the accident occurred on account of rash and negligent driving of the offending bus by its driver. While dismissing the claim petition, the Tribunal directed that in the above facts and circumstances, the appellants would be entitled to receive a sum of Rs.50,000/- only as no fault liability along with interest at the rate of 12% per annum from the date of filing of claim petition till realization. The owner and insurer were jointly and severally held liable to pay this amount. (4 Mr. A.N. Bhakta, learned counsel appearingon behalf 0f the 2 appella‘nts argued that the Tribunal erred in law in holding that the l appillants Could not eStablish that the accident occurred on account of f l e h l ras and negligent driving of the bus by its drivenThis finding may be et-si‘de and the entire amount of compensa’tiOn assessed by the; L sla Triunal may be awarded to the appellants. l i‘ 1 l l l r ): b 4 M.A. No. 874 of 2am (5)E jOn theother hand, Mr. S.K. Agrawal and Mr. Anand Kumar Gupta} l lea§rned counsel appearing on behalf of the insurance Company, opposed ; ‘- theiseiarguments and suppmied the award passed by the Claims ' Tribunal. (6) We have heard the learned counsel for the parties at length and have also perused the records of the claim case. (7) Sobharam (AW-2) is an eye-witness to the incident. AcCording. to thelpleadlngs of the appellants vrde Para-22 of the claim petition the dec} l ased was accompanied by Sobharam (AW 2) and NIranJan at the ' time of accrdent when he was gomg from his Village to Patthalgaon on his ’ buoy/{cle for selling tomotos Sobharam (AW 2) deposed that on 9 3 96 at ' about l 9 00 a m he was accompanying deceased Chudamanl and they were gomg to Patthalgaon for selling tomotos Near Village Piladlh Sharma bus bearing registration No. 8074 came in a high speed and dashed deceased-Chudam‘ani. Chudamani died on the spot. His bicycle ' Was also smashed. ln the cross examination, he denied that Chudamani i fell doWn from his bicycle and was dashed by bus. Though this witness has been putto lengthy cross-examination by the opposite party'but ' nothing‘material could be brought on record, on which, either his testimony may be discarded or it may be held that in fact he did not Witness the incrdent The copy of the First Information Report (Ex-A/1) has also been fled ln the F l R also it has been mentioned that bus No CPL 8074 was being driven rashly and negligently by its driver who causeld the ac0ident as it dashed against the bicycle of the deceased who fell down from his bicycle and died on the spot The F l R has been lodged by one Sunil Kumar Gupta on which Crime No 58/96 was l , .l i i i l 5 M.A. No. 874 of2002 régistered against the driver in police station Patthalgaon u/s 304-A of the lr-t‘dian Penal Code. The Tribunal held vide Para-7 of the award that on the evidence of Sobharam (AW-2) it was only established that the bus was in high speed but it was not established that the driver 6f the bus was negligent. The Tribunal further held that the maker of the F.l.R. i.e. Sunil KLmar Gupta was not examined; in the F.l'.R. it has only been mentioned t at the driver was driving the bus rashly and negligently; but what negligence Was there on the part of the driver is not clear from the F.I.R. l {r 5W“§;.M "Aa it :‘ lu‘ (8) On appreciation of entire evidence available on record, we feel that thie Tribunal fell in error in holding that the appellants/claimantscould not esftablish that the accident occurred on account of rash and negligent l driving of the offending bus by its driver. It was clearly established on the evidence of Sobharam (AW-2) that the bus was in a high speed and it da‘shed against the bicycle of deceased-Chudamani. lt is not a case in which the deceased was either on the middle of the road or he was occupying such portion of the road that even in normal circumstance, he would be dashed by a vehicle on account of his own fault. lt was a day ti e accident. lf the deceased was not occupying the road, then it was the duty of the driver of the bus to see that any person going by the side oflthe road is not dashed by his vehicle while crossing through him,and if so: happens, it would certainly be on account of negligence on the part of i the driver of the vehicle. The Tribunal‘completely lost sight of these facts a angd fell into error and has recorded the finding that rash and negligent act i l on; the part of the driver was not established. We further note that the i drilver of the bus has not examined himself to explain as to how the i acfcident occurred. In the facts and circumstances of the case, when the l i evidence of AW—2 ‘was unrebUtted and was supported by the contents of 6 M.A. N0. 874 of2002 the: F.l.R;. (Ex.,-A/1), the Tribunal ought to have accepted his evidence and ‘ l it o§ught to have held that the accident occurred on account of rashly an‘d i ne§ligently driving of the bus by its driver. Therefore, we set-aside the aforesaid finding of the Tribunal and hold that the accident‘=occurred on i , account of rash and negligent driving of the offending bus by its driver. (9) No other point was raised before us. (10) in the result, the appeal is (allowed. The impugned award passed by the Claims Tribunal is set-aside lt- is held that the appellants/claimants are entitled to receive Rs 1 34 300/— as compensation on account of death of deceased Chudamani In the motor accrdent as assessed by the Claims Tribunal The Tribunal has already directed for payment of R950 000/- By deducting Rs 50 000/- from Rst 34 300/— the balance l amount of compensation comes to Rs.84,300l—. The appellants are now enititled to receive Rs.84;300/— from respondent No.3/The New lndia Asisurance Company Limited as balance of amount of compensation. On‘ this amount of Rs.84,300/—, the appellants would also be entitled to .l receive interest at the rate of 6% per annum from the date of filing of l l claiim petition till realization. l (1t) There shall be no order as to cost l 5.? Sd/- CHIEF JUSTICE . ¢