IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Mahesh Chand & Anr. Vs. Smt. Rito & Ors. (S. B. Civil Misc. Appeal No.1511/2010) S. B. Civil Misc. Appeal under Section 173 of the Motor Vehicle Act, 1988. Date of Judgment: September 27th, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Rizwan Ahmed, for the appellants. Mr.Lokesh Sharma, for the respondents. BY THE COURT:
Aggrieved by the award dated 07.04.2010, passed by the learned Motor Accident Claim Tribunal, District Dausa, (for short, ‘the learned Tribunal’) whereby the learned Tribunal has awarded a compensation of Rs.4,52,000/- to the claimants-respondents, the appellants, who are the owner and the driver of the offending vehicle, have approached this Court.
The brief facts of the case are that on 12.12.2006, around 2:00 PM, Mukesh & Lakhan Jatav were going to their village Kamapura on their Motorcycle, bearing registration No. RJ-05-2M- 8381. While they were travelling on the National HighWay No.11, near Teliwari Border, allegedly they met with an accident with a Tanker, bearing registration No. RJ-29-G-1026. Resultantly, while Mukesh died on the spot, Lakhan received injuries. Since the claimants had lost their sole bread earner, they filed a claim petition before the learned Tribunal. The appellants filed their written statements wherein they specifically pleaded that the accident did not occur with the Tanker. Instead, the accident occurred due to the negligence of the deceased himself. While the deceased was trying to overtake a motorcycle, bearing registration No.RJ-02-SC-6214, the motorcycle of the deceased lost its balance. The motorcycle fell; consequently, Mukesh expired and Lakhan was injured. However, as the tanker was passing by the site of the accident, it was falsely implicated. In order to prove their case, the claimants examined three witnesses and submitted ten documents. In order to buttress their contention, the appellants examined two witnesses. After hearing both the parties, vide award dated 07.04.2010, the learned Tribunal awarded the compensation, as mentioned above. Hence, this appeal before this Court.
Mr. Rizwan Ahmed, the learned counsel for the appellants, has vehemently contended that Yad Ram (AW-2) and Yogesh Gurjar (AW-3) are not eye-witnesses of the accident. In his testimony, Yad Ram (AW-2) has clearly admitted that he reached the site of the accident two minutes later. Therefore, he cannot claim to be an eye-witness. Moreover, both the witnesses have admitted the fact that they were related to the deceased. Thus, they are interested witnesses. Secondly, the claimants themselves had filed an application under Order 1 Rule 10 CPC for impleading the owner and the driver of the motorcycle bearing No.RJ-02-SC-6214 as party respondents. Although the said application was dismissed by the learned Tribunal, but the filing of the application clearly proves that the claimants themselves were not sure whether the tanker was involved in the accident or not? Their filing the application clearly shows that they too are convinced that the Tanker was not involved in the accident, but it was another motorcycle bearing No. RJ-02-SC-6214 which was involved. Thus, the claimants are simultaneously blowing hot and cold. Despite the uncertainty of the claimants, the learned Tribunal has erred in holding the appellants liable for the accident. Thirdly, Vinod Kumar, the driver of the motorcycle bearing No.RJ-02-SC-6214, has been examined as NAW-2. In his testimony, he clearly states that while he was driving his motorcycle, the deceased came from behind and tried to overtake his motorcycle. In this process, the deceased hit the divider, and fell. Consequently, he died. This independent witness also testified that the Tanker was not involved in the said accident. According to the learned counsel, the learned Tribunal has erred in not believing this witness, who happens to be an independent one. Fourthly, according to the learned counsel, the claimants and the police have colluded to falsely implicate the Tanker. Therefore the documents prepared by the police are unreliable. Lastly, a wrong multiplier has been applied by the learned Tribunal. According to schedule-II attached to the Motor Vehicle Act, 1988, in case the deceased is between the ages of fifteen to twenty, the multiplier of 16 should have been applied. According to the postmortem report, the deceased was eighteen years old when he expired. Thus, a multiplier of sixteen should have been applied. But the learned Tribunal has applied a multiplier of eighteen. Thus, the learned Tribunal has gone beyond the Schedule II prescribed by the law.
On the other hand, Mr. Lokesh Sharma, the learned counsel for the claimants-respondents, has strenuously contended that in fact Yad Ram (AW-2) and Yogesh Gurjer (AW-3) are not related to the claimants. According to both the witnesses, the deceased was merely their nephew by the fact that they were resident of the same village, but there is no blood relationship between the deceased and the witnesses. Thus, they cannot be classified as the interested witnesses. Secondly, merely because they claim that they reached the spot two minutes after the accident, the said statement is not to be taken literary, but is of figure of speech meaning they reached the spot immediately after the accident. Moreover, their testimonies are corroborated by the site plan prepared by the police. According to the site plan, the accident had occurred right next to the divider and that too due to the negligence by the driver of the Tanker. Thus, their evidence has been corroborated by the documentary evidence. Thirdly, merely filing of an application under Order 1 Rule 10 CPC would not oust the case of the claimants. For, the claimants have consistently pleaded in the petition and have produced two witnesses to buttress their case that the accident, in fact, took place between the motorcycle of the deceased and the Tanker. Furthermore, since the said application has been dismissed by the learned Tribunal and since the claimants did not file any appeal against the said dismissal, the filing of the application does not strengthen the case of the appellants. Fourthly, the learned Tribunal has rightly disbelieved the testimony of Vinod Kumar (NAW-2). For, Vinod’s testimony is not in consonance of the case set up by the claimants. Lastly, the learned Tribunal has applied a multiplier of eighteen relying on the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. [2009 ACJ (SC) 1298]. Therefore, the correct multiplier has been applied by the learned Tribunal.
Heard the learned counsel for the parties and perused the impugned award as well as the record.
A bare perusal of the testimonies of Yad Ram (AW-2) and Yogesh Gurjer (AW-3) clearly reveals that both of them have claimed that since the deceased was a resident of the same village, and considering the close proximity of the people within the same village, therefore, he was treated as a nephew. But this certainly does not mean that the witnesses were biologically related to the deceased. Thus, the first contention that Yad Ram (AW-2) and Yogesh Gurjer (AW-3) are interested witnesses does not have any basis.
It is true that Yad Ram (AW2) in his cross-examination has admitted that he reached the place of the accident within two minutes of the accident. But even such a statement would not preclude him from being an eye-witness. The statement that he reached within two minutes of the accident has to be interpreted figuratively and not literary. For, Yad Ram in his testimony clearly states that the accident had occurred right in front of them. According to AW-2 & AW-3, they had seen the accident. Therefore, the learned Tribunal was justified for considering them as eye-witnesses to the accident. Thus, the learned counsel for the appellants is not justified in claiming that they cannot be treated as eye-witnesses of the accident. According to these two witnesses, the Tanker was being driven rashly and negligently and came and collided with the motorcycle driven by the deceased. Consequently, the driver of the motorcycle expired. Their testimony is also buttressed by the fact that the site plan shows that the accident had occurred beyond the white strip paint on the road and the accident had occurred on the wrong side of the road. Moreover, the inspection report of the Tanker also indicates that it had been in an accident. Thus, the testimony of these two witnesses is corroborated by the documentary evidence which formed part of the challan submitted by the police against the appellant No.2, Gopal Prasad, the driver of the offending vehicle.
The contention raised by the learned counsel that the police and the claimants had colluded to falsely implicate the Tanker cannot be accepted. For, there is presumption in law that any act done by a public officer is done by him strictly in accordance with law. Although the said presumption is a rebuttal one, but the appellants have not submitted any evidence to rebut the said presumption. Therefore, the mere allegation that the police had colluded with the claimants cannot be accepted ipso facto.
The filing of the application under Order 1 Rule 10 CPC by the claimants does not weaken the case of the claimants themselves. Firstly, the said application has been rejected by the learned Tribunal on the ground that the application has been filed collusivly by the claimants and the appellants. Secondly, the claimants have not filed an appeal against the dismissal of their application. Thirdly, although the claimants may be doubtful and may claim that a second motorcycle was involved, but nonetheless, they have examined two witnesses as eye-witnesses who have buttress their case. Thus, the filing of the application under Order 1 Rule 10 CPC would not support the case of the appellants.
A bare perusal of the testimony of Vinod Kumar (NAW-2) clearly reveals that he is an unreliable witness. In his cross-examination, he claims that the deceased was negligent in overtaking his motorcycle, and consequently he collided with the divider. Because he lost his balance, the deceased fell and expired. But in his cross-examination, he also admits the fact that immediately after the accident, he neither reported the accident to the police, nor his statement was recorded by the police. He further admits that he was not requested by anyone to come and give his statement before the learned Tribunal. If that were so, there is no reason why he has appeared on his own before the learned Tribunal. Moreover, his silence about the accident clearly reveals the fact that he is more or less a concocted witness. Therefore, the learned Tribunal is justified in rejecting his testimony as unreliable.
A bare perusal of II Schedule of the Act clearly reveals that in case the deceased is between the ages of fifteen to twenty years, then a multiplier of sixteen should be applied. However, relying upon the case of Sarla Verma (Supra), the learned Tribunal has applied a multiplier of eighteen. It is, indeed, a settled principle of law that a law cannot be amended by judicial interpretation. Thus, there is no reason why the Tribunal should have not implemented the Schedule II, attached with the Act. Thus, the learned Tribunal has erred in applying a multiplier of eighteen instead of applying a multiplier of sixteen. Therefore, the loss of dependency should be re-calculated as under :-
Rs.2000 X 12 X 16 = 3,84,000/-
In view of above, this appeal is partly allowed to the extent that the compensation amount is reduced from Rs.4,52,000/- to 3,84,000/-. Since the amount of Rs.75,000/- has already been deposited by the appellants with the learned Tribunal, the learned Tribunal is directed to deduct the said amount from Rs.3,84,000/-. The appellants are directed to deposit the amount of Rs.3,09,000/- (Rs.384000 Rs.75000) along with interest fixed by the learned Tribunal from the date of filing of the claim petition i.e., 03.02.2007 till date of actual payment. The appellants shall deposit Rs.3,09,000/- along with the interest thereupon within a period of six weeks from the date of receipt of the certified copy of this judgment. The learned Tribunal is directed to release the entire amount deposited by the appellants along with the interest to the claimants immediately thereafter. The learned Tribunal is also directed not to auction the vehicle of the appellants.
(R.S. CHAUHAN) J.
Manoj solank