Minu Rout & Anr vs Satya Pradyumna Mohapatra & Ors

3. Brief facts of the case are mentioned hereunder for the purpose of appreciating the case and to examine whether the appellants are entitled for enhancement of compensation claimed by them in this civil appeal. The first appellant is the wife of the deceased Susil Kumar Rout and the second appellant is the son of the deceased (minor at the time of the accident). On account of a head on collision between the car of the deceased bearing registration No. OR 09 C 6463 and a truck bearing registration No. OR 09 C 7165 on National Highway 5 near Uraili Chhaka on 08.11.2004, the deceased sustained injuries and was declared brought dead at Jajpur Hospital. It is the case of the appellants that the road was wide and spacious and the accident was due to the rash and negligent driving of the driver of the offending truck. It is claimed by the appellants that at the time of the accident, the deceased was having good health and was earning a sum of Rs.5000/- per month which was mostly contributed to the appellants for their livelihood.

4. During the time of hearing, the owner of the truck was arrayed as a party and was served with notice but he remained absent and did not contest the proceedings. Respondent No. 1, the driver also did not file any counter statement despite notice being served on him and he was set ex-parte. Respondent No.2, the New India Assurance Company filed its statement of counter opposing the claim of the appellants taking the plea that the claim petition is not maintainable and the claim is barred by limitation. The averments regarding the age and income of the deceased were denied, and so also, the averments regarding the manner in which the accident occurred as described in the claim petition. It was pleaded by the Insurance Company that the averments made by the appellants in the claim petition regarding the manner in which the accident took place are false and fabricated. They have claimed that the accident was not due to sole negligence of the driver of the offending truck, by placing strong reliance upon the charge-sheet filed by the Dharmasala police, who seized both the vehicles. Therefore, it is stated that both the drivers of the car and the truck were responsible for causing accident amounting to contributory negligence on the part of the deceased Susil Rout. The accident occurred on account of head on collision between the two vehicles. Due to the death of the deceased- husband of the first appellant, the charge-sheet submitted against him was deleted.

5. Four issues were framed by the Tribunal on the basis of the pleadings and the case went for trial on behalf of the appellants. The first appellant was examined as PW-1. In support of their claim, she produced and marked the documents namely, Exh.1 charge-sheet filed in GR 114 of 2004 before the S.D.J.M., Exh.2 three seizure lists, Exh.3 Zimanama, Exh. 4 inquest report, Exh.5 post mortem examination report and Exh.6 the copy of driving licence of the deceased. Apart from her, three other eye witnesses were examined, and they supported the claim of the appellants. None were examined on behalf of the Insurance Company to prove its case before the Tribunal. The Tribunal, on the basis of appreciation of pleadings and evidence on record, has answered the issue Nos. 1, 2 and 3 together and partly accepted the case of the appellants. The evidences of PW-2 and PW-4 are taken into consideration by the Tribunal and recorded the finding holding that the appellants did not produce FIR but on the other hand they have suppressed the same. The Tribunal placed reliance upon the charge-sheet-Exh. 1 and other documentary evidence referred to supra and held that due to negligence of both the drivers of the vehicles, there was a head on collision of both the vehicles and the accident occurred. The appellants have placed strong reliance on the documents Exhs.1 to 5 produced by them in their evidence after adverting to the fact that neither the owner of the car nor the driver of the truck came forward to adduce evidence to prove the plea taken by the Insurance Company that there was contributory negligence on the basis of the documentary evidence on record and the so called admission of PW-4. The Tribunal has recorded the finding of fact on the contentious issue No. 1, and held that the accident occurred due to head on collision between the two vehicles and both the drivers are equally responsible for the occurrence of the accident. Therefore, the Tribunal recorded a finding of fact in this regard and held that appellants who are the legal heirs of the deceased are entitled to get compensation to the extent of 50% for the fault of the offending truck and held that the owner of the truck and the Insurance Company both are liable to pay 50% of the compensation to the appellants. Accordingly, issue Nos. 2 and 3 were also decided in favour of the appellants. The Tribunal quantified the compensation accepting the age of the deceased as 35 years on the basis of post mortem examination report - Exh.5 and applied multiplier of 16 to the multiplicand to quantify the loss of dependency by taking the monthly salary of the deceased at Rs.3,000/- in the absence of documentary evidence. Out of this amount, 1/3rd was deducted towards personal expenses of the deceased and the amount was quantified at Rs.3,84,000/-. Out of this amount again, 50% was deducted towards alleged contributory negligence of the deceased husband of the first appellant and the Tribunal awarded Rs.1,92,000/- towards the loss of dependency. To this amount, under the conventional heads, Rs.5000/- and Rs.3000/- was awarded towards funeral expenses and loss of estate, love and affection respectively and thereby in total, a compensation of Rs.2,00,000/- with interest at the rate of 6% per annum was awarded to the appellants. The appellants were aggrieved by the inadequate compensation awarded by the Tribunal in its judgment. The correctness of the same was questioned by them by filing an appeal before the High Court seeking enhancement of compensation. The High Court has passed a cryptic order without adverting to and appreciating the pleadings and evidence, and assigning any reason whatsoever to hold that the reasons assigned by the Tribunal on the contentious issue Nos. 1 and 2 do not suffer from impropriety and illegality. The correctness of the same is challenged in this appeal urging the following grounds.

11. The case of the appellants is that the accident took place on account of rash and negligent driving of the offending truck by its driver. The offending truck was coming from opposite direction to the car. In the car, there were six persons traveling including the first appellant. The first appellant was examined as P.W.1 and other three eye witnesses were also examined as P.W.2 to P.W.4, who supported the version of P.W.1. They have narrated in their evidence that the accident occurred on 8.11.2004. P.W.2 has stated in his evidence that the accident took place within 15 feet away from the place, when he was going to his village in his bicycle. Two other eye witnesses were also examined as P.W.3 and P.W.4 who have also deposed before the Tribunal stating that Susil Rout got grievous injuries on account of the accident and was shifted to the Jajpur Hospital, where he was declared dead. They have also deposed that the occurrence of the accident was on account of rash and negligent driving of the truck. There was head on collision between the offending truck and the car.

Answer to point Nos. 2 and 3:

14. Accordingly, we allow the appeal in the following terms:

There will be no order as to costs.