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/-