MINU ROUT Vs SATYA PRADYUMNA MOHAPATRA .
Bench: G.S. SINGHVI,V. GOPALA GOWDA
Case number: C.A. No.-007368-007368 / 2013
Diary number: 33713 / 2011
Advocates: DEBASIS MISRA Vs
JOSEPH ARISTOTLE S.
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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7368 OF 2013 (Arising out of SLP (C) No. 31402 of 2011)
MINU ROUT & ANR. … APPELLANTS VS. SATYA PRADYUMNA MOHAPATRA & ORS. … RESPONDENTS
J U D G M E N T V. Gopala Gowda, J.
Leave granted.
2. This appeal is filed by the appellants who were claimants before the Additional District Judge-cum-4th MACT,
Jagatsinghpur, Odisha (in short ‘the Tribunal’) in MAC case
No.6 of 2005, questioning the correctness of the judgment
and award dated 27.07.2011 passed by the High Court of
Orissa, Cuttack in MACA No. 594 of 2010, wherein it has
affirmed the judgment and award of the Tribunal holding
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that the award of compensation of Rs.2,00,000/- in favour
of the appellants along with interest at the rate of 6% per
annum from the date of filing of the claim application till
actual payment, is legal and valid and the same is not
vitiated either on account of impropriety or illegality.
The correctness of the same is challenged in this appeal
urging certain relevant facts and grounds.
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
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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
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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
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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
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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
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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.
6. It is contended by the learned counsel for the appellants that the High Court has not considered the
evidence produced on record to show that the accident took
place on account of rash and negligent driving of the
driver of the truck, which is proved by examining the three
eye-witnesses PW-2 to PW-4. The Tribunal, without
considering the testimony of the eye witnesses has
erroneously placed reliance upon Exh.1 the charge-sheet
which was filed against both the drivers of the car as well
as the offending truck. Further, it has held that there is
50% contributory negligence on the part of the deceased.
PW-3 was not examined by the police during the course of
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investigation and PW-2 had stated in his evidence that the
car was also driven in high speed. It is urged by the
learned counsel for the appellants that the Tribunal,
without there being any rebuttal evidence adduced by either
the owner of the truck or his driver or any other
independent witness to prove the alleged fact of
contributory negligence on the part of the deceased, has
erroneously recorded the finding of fact on the contentious
issue No. 1 and held that there is contributory negligence
on the part of the deceased. Therefore, it is urged by the
learned counsel that the approach of the Tribunal in
appreciating the evidence on record without there being any
evidence on record adduced by the Insurance Company about
the negligence of the deceased is erroneous. The Tribunal
has placed reliance on the charge-sheet filed against both
the deceased and the driver of the offending vehicle and
has held that there was contributory negligence of the
deceased which resulted in head on collision between the
two vehicles. This fact is not established by producing any
evidence by the Insurance Company availing the defence of
the insured. PW-1 who was traveling in the car has narrated
how the accident occurred. The other eye witnesses who have
witnessed the accident have also deposed in favour of the
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appellants. They have stated that on account of rash and
negligent driving of the driver of the offending truck, the
accident took place. In fact, PW-2 has stated in his
evidence that he was going to his village on his bicycle
and the accident took place within a distance of 15 feet
away from him. Two other persons who have witnessed the
accident were examined in the case in support of the claim
of the appellants. It is urged in their evidence that they
had helped the injured persons by shifting them to the
Jajpur Hospital. PW-3, who is a betel shop owner, whose
shop is situated near the place of accident, has stated in
his evidence that there were six persons in the car and
that he was not examined by the police. PW-4 deposed that
he had seen the accident from a little distance from market
where 10 to 20 persons were present at that time. He has
stated in his evidence that the truck was in a high speed
and there were six persons inside the car who sustained
injuries. The driver of the car sustained grievous
injuries and was conscious when he was taken to Jajpur
Hospital on a trekker and later succumbed to injuries. The
evidence of this eye witness has not been properly
considered both by the Tribunal and the High Court, while
recording the finding on the relevant contentious issue
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No.1. Therefore, the findings recorded on the issue No.1 by
the Tribunal is erroneous in law, and the same concurred
with by the High court without re-appreciating evidence on
record, and therefore, is liable to be set aside. The
compensation awarded by the Tribunal towards the loss of
dependency was at Rs.3,84,000/- for the reason that the
appellants did not produce documentary evidence to prove
the monthly income of the deceased at Rs.5000/- as claimed
by them. Therefore, the Tribunal has taken Rs.3000/- per
month as salary of the deceased, even though he was
entitled for more than Rs.6000/- per month as the job of a
driver is a skilled job. The aforesaid relevant fact
should have been taken into consideration by the Tribunal
in the absence of documentary evidence placed on record to
quantify the reasonable compensation. The Tribunal was
required to consider the claim of the appellants by taking
reasonable amount towards the monthly salary for which the
deceased was entitled to in law and on that basis the
Tribunal should have quantified and awarded just and
reasonable compensation towards loss of dependency. That
has not been done in the case in hand by the Tribunal.
Therefore, it is urged by the learned counsel that the
Tribunal has committed an error on fact by taking Rs.3000/-
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as monthly salary of the deceased for determination of
multiplicand by ignoring the fact that the job of a driver
is a skilled job. The Tribunal should have taken Rs.6000/-
per month as the salary of the deceased and 1/3rd should
have been deducted from his monthly salary towards his
personal expenses.
7. Out of the total compensation of Rs.3,84,000/- under the head loss of dependency, 50% was deducted on the ground of
equal contributory negligence on the part of the deceased
and the Tribunal has erroneously awarded Rs.1,92,000/-
towards the loss of dependency. It is further contended
that the aforesaid legal contentions urged on behalf of the
appellants are not examined by the High Court while
exercising its appellate jurisdiction. It has passed a
cryptic order without re-appreciating the facts, legal
evidence on record and law on the question. Therefore, it
is contended that the impugned judgment is vitiated both on
facts and law and hence, the same is liable to be set
aside.
8. The learned counsel on behalf of the Insurance Company has sought to justify the impugned judgments of both the
Tribunal as well as the High Court contending that the
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Tribunal being a fact finding authority, on proper
appreciation of both oral and documentary evidence,
particularly, the evidence of PW-3 and PW-4 who were eye
witnesses, and have deposed that there was contributory
negligence, has rightly affirmed so. The PW-2, who has stated
in his evidence that the car was coming in a speed and there
was a head on collision between the two vehicles, on the
basis of documentary evidence Exh.1 the charge-sheet, the
finding of fact recorded by the Tribunal, regarding
contributory negligence on the part of the deceased is based
on proper appreciation of facts and legal evidence.
Therefore, the same cannot be termed as erroneous and does
not call for interference by this Court. Further, it is
urged that the quantum of compensation awarded by the
Tribunal under the heading of loss of dependency at
Rs.1,92,000/- in the absence of documentary evidence to prove
the monthly income of the deceased, is legal.
9. On the basis of the rival factual and legal contentions urged by the learned counsel on behalf of the parties, the
following points would arise for consideration of this Court:
1. Whether the finding of fact recorded by
the Tribunal on the contentious issue No.1
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holding that contributory negligence on the
part of the deceased driver Susil Rout and
award of compensation at Rs. 1,92,000/-, the
same being affirmed by the High Court in its
judgment, is erroneous in law and warrant
interference in this appeal?
2. Whether the appellants are entitled to
enhanced compensation?
3. What award?
Answer to point No.1: 10. This point is required to be answered in favour of the appellants for the following reasons:-
It is an undisputed fact that the accident took place on
08.11.2004 at about 11.45 p.m on account of head on collision
between truck bearing registration No. OR09-C-7165 and the
car driven by the deceased bearing registration No. OR 09-C-
6463. The Jajpur Police Station has registered FIR against
both the drivers of the offending vehicle and the car. After
investigation of the case, charge-sheet Exh.1 GR 114 of 2004
was filed before the S.D.J.M Jajpur against the first
respondent and the deceased, and on account of his death the
case was abated and therefore, the Tribunal has committed
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error in law in coming to the conclusion in the absence of
rebuttal evidence that there was contributory negligence of
50% on the part of the deceased.
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.
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12. P.W.3 was a betel shop owner, whose shop is situated near the spot of the accident. Though he was not examined by
the Investigating Officer in the police case he is examined
before the Tribunal whose evidence is required to be accepted
for the reason that the same is not rebutted by the
respondents. P.W.4 has stated in his cross examination that
he saw the accident from a little distance from the market
place, where about 10 to 20 persons were present. He has
further deposed that the truck was in a high speed and the
people traveling in the car sustained injuries and the driver
of the car Susil Rout suffered grievous injuries and
succumbed to the same. He was conscious when he was taken to
the Jajpur Hospital on a trekker. The Tribunal, on
appreciation of the oral and documentary evidence, has
recorded the erroneous finding by placing strong reliance
upon the charge-sheet-Exh.1 without considering the fact that
the criminal case was abated against the deceased and
further has made observation in the judgment that the
appellants had not produced the FIR. Therefore, it has held
that there was 50% contributory negligence on the part of the
deceased driver in causing accident. The Tribunal ought to
have seen that non production of FIR has no consequence for
the reason that charge sheet was filed against the truck
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driver for the offences punishable under Sections 279 read
with Section 302 of IPC read with the provisions of the M.V.
Act. The Insurance Company, though claimed permission under
Section 170(b) of the Motor Vehicles Act, 1988 from the
Tribunal to contest the proceedings by availing the defence
of the owner of the offending vehicle, it did not choose to
examine either the driver of the truck or any other
independent eye witness to prove the allegation of
contributory negligence on the part of the deceased Susil
Rout on account of which the accident took place as he was
driving the car in a rash and negligent manner. In the
absence of rebuttal evidence adduced on record by the
Tribunal, the Tribunal should not have placed reliance on the
charge-sheet-Exh.1 in which the deceased driver was mentioned
as an accused and on his death; his name was deleted from the
charge sheet. The Tribunal has referred to certain stray
answers elicited from the evidence of P.W.2 and P.W.3 in their cross-examination and placed reliance on them to record
the finding on issue no.1. For the aforesaid reasons, the
findings and reasons recorded by the Tribunal on the
contentious issue No.1 holding that there is contributory
negligence on the part of the deceased driver in the absence
of legal evidence adduced by the Insurance Company to prove
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the plea taken by it that accident did not take place on
account of rash and negligent driving of the truck driver is
erroneous in law. The Tribunal has accepted the part of oral
evidence of the eye witnesses regarding the scene of accident
and it has erroneously placed reliance upon the charge-sheet-
Exh.1, which was filed against the driver of the offending
truck and deceased to hold there was contributory negligence
on his part by ignoring the fact that the criminal case
against the deceased was abated. Therefore, we have to hold
that the finding of fact recorded on issue No.1 by the
Tribunal and affirmed by the High Court in the impugned
judgment, is erroneous for want of proper consideration of
pleadings and legal evidence by both of them. Accordingly,
we have answered point No.1 in favour of the appellants in so
far as the finding recorded by the Tribunal on the question
of contributory negligence of 50% on the part of the deceased
is concerned.
Answer to point Nos. 2 and 3:
13. The appellants claimed compensation under the heading of loss of dependency as they were all dependents upon the
earnings of the deceased Susil Rout. It is an undisputed
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fact that Susil Rout was working as a driver of the car which
is a skilled job. Appellants have stated in the claim
petition and in the evidence of PW-1 that the deceased was
earning Rs.5,000/- per month. The oral evidence of PW-1 is
not accepted by the Tribunal, solely for the reason that the
appellants did not produce documentary evidence to prove the
monthly salary of the deceased as Rs.5,000/- per month as
claimed by them. However, it had taken monthly income of the
deceased at Rs.3,000/-, for the purpose of determining the
multiplicand. Out of Rs.3,000/- p.m., 1/3rd amount was
deducted towards personal expenses of the deceased and
arrived at Rs.3,84,000/- towards loss of dependency. Out of
that compensation, 50% was deducted towards contributory
negligence on the part of the deceased and Rs.1,92,000/- was
awarded under the above heading. The compensation awarded by
the Tribunal is approved by the High Court, which is not only
erroneous in law but also suffers from error in law. The
Tribunal ought to have taken the salary of the deceased
driver at Rs.6,000/- by taking judicial notice of the fact
that the post of a driver is a skilled job. Though the claim
of the appellants is Rs.5000/- as monthly salary of the
deceased for the purpose of determining the loss of
dependency, the actual entitlement of the salary of the
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deceased should have been taken at Rs.6000/- per month by the
Tribunal for awarding just and reasonable compensation, which
is the statutory duty of the Tribunal and the Appellate
Court. In view of the law laid down by this Court in
Santosh Devi vs. National Insurance Company Ltd. & Ors.1; 30% of future prospects of the deceased should be added to the
monthly income. If 30% is added to the monthly income, it
would amount to Rs.7,800/- p.m. From the same, 1/3rd should
be deducted towards the personal expenses of the deceased,
then the remaining amount would come to Rs.5,200/- per month.
The same is multiplied by 12 amounting to Rs.62,400/- which
would be the multiplicand. The same must be multiplied by
16 multiplier as the Tribunal has taken the age of the
deceased at 35 as mentioned in the post mortem report, which
is produced as Exh.5. According to the decision of this Court
in Sarla Verma vs. Delhi Transport Corporation2, the multiplier of 16 taken by the Tribunal for computation of
loss of dependency is correct. If the 16 multiplier is
applied to the multiplicand of Rs.62,400/-, it comes to
Rs.9,98,400/- which amount is awarded towards the loss of
dependency of the appellants. We have answered point No.1 in
favour of the appellants holding that the finding recorded by 1 2012 (6) SCC 421 2 (2009) 6 SCC 121
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the Tribunal that there was 50% contributory negligence of
both the drivers of the offending truck and the deceased, is
erroneous and further 50% deduction out of the total loss of
dependency compensation determined by the Tribunal is not
correct. Therefore, we have to hold that the appellants are
entitled to the full amount of Rs.9,98,400/-. Further, the
Tribunal has erroneously awarded a sum of Rs.5,000/- for
funeral expenses without taking into consideration the actual
amount required to be spent towards funeral expenses and
obsequies ceremonies. The Tribunal has also inadequately
awarded Rs.3,000/- towards loss of love and affection. The
Tribunal also erred both on facts and in law as it has
completely ignored the fact that the deceased died leaving
behind him the first appellant-the widow, his mother and two
minor children, who have lost the love and affection of their
father. Therefore, this Court, after taking into
consideration all the expenses incurred for the funeral and
sudhi ceremonies and towards loss of love and affection by
the surviving child and the first appellant wife, by applying
the decision in the case of Kerala State Road Transport Corporation vs. Susamma Thomas3, awards Rs.50,000/- which is just and reasonable under the conventional heads. If
3 (1994) 2 SCC 176
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Rs.50,000/- is added to the compensation awarded for the loss
of dependency, the total compensation comes to
Rs.10,48,400/-. The Insurance Company is liable to pay the
same as the offending vehicle is insured with it and the same
is an undisputed fact. The Insurance Company is also liable
to pay interest at the rate of 9% per annum, from the date of
application till the date of payment in view of the decision
of this Court in Municipal Council of Delhi vs. Association of Victims of Uphaar Tragedy4.
14. Accordingly, we allow the appeal in the following terms:
I) The impugned judgments and awards of the Tribunal and the High Court are set aside.
II) We award Rs.10,48,400/ with 9% interest per annum payable from the date of filing the application till the date of payment.
III)The compensation awarded shall be apportioned between the appellants - Minu Rout and Sumit Kumar Rout, equally as the remaining appellants Ratnamani Rout and Rohit Kumar Rout died during the pendency of the proceedings and their names have been deleted by the High Court of Orissa on 22.8.2011.
4 (2011) 4 SCC 481
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IV) We direct the Insurance Company to deposit 50% of the awarded amount with proportionate interest in any of the Nationalized Bank of the choice of the appellants for a period of 3 years. During the said period, if they want to withdraw a portion or entire deposited amount for their personal or any other expenses, including development of their asset, then they are at liberty to file application before the Tribunal for release of the deposited amount, which may be considered by it and pass appropriate order in this regard. The rest of 50% amount awarded with proportionate interest shall be paid to the appellants by way of a demand draft within six weeks from the date of receipt of a copy of this order after deducting the amount if already paid.
There will be no order as to costs.
…………………………………………………………J. [G.S. SINGHVI]
…………………………………………………………J. [V. GOPALA GOWDA]
New Delhi, September 2, 2013
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