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SMT. S. DEVI versus STATE

High Court of Judicature at Allahabad

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Smt. S. Devi v. State - FIRST APPEAL FROM ORDER No. - 285 of 1981 [2007] RD-AH 15114 (6 September 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 1/Reserved

First Appeal From Order No. 285 of 1981

Smt. Sushila Devi and others .....Appellants

Versus

The state of Uttar Pradesh through

Collector, District Jalaun ....Respondent

Hon'ble Prakash Krishna, J.

The present appeal is under Section 110-D of the Motor Vehicles Act, 1939 by the Claimants who were unsuccessful before the Motor Accident Claims Tribunal.

Chatur Singh husband of the appellant no. 1 and father of the remaining appellants was posted as Lekhpal in Circle Sirsakalan. According to the claim petition, he on 2-7-1978, while going to visit the area in his circle, got down from a Bus going from Jalaun to Kuthond at a point from wherein a Kachcha Shramdan road starts for village Bichauli. After getting down from the bus, while he was trying to cross the road, hit by Truck No. UTK 583 belonging to the respondent which was being driven rashly and negligently. He fell down and sustained injuries and was hospitalised in Sadar Hospital, Orai by his brother Harish Chandra Singh and died at 4.00 AM on the next day in the hospital. A claim petition no. 1 of 1979 was filed for recovery of Rs. 1,00,000/- as compensation on the ground that he was getting salary at the rate of Rs. 400/- per month and had also agricultural income to the tune of Rs. 10,000/- per year and was aged about 49 years.

The claim petition was contested on the pleas inter alia that the accident in which Chatur Singh died took place by some unidentified vehicle and later on with the connivance of the police, the truck in question was involved in the accident and as such, the respondent is not liable to pay any compensation amount. Other pleas, such as, the claimants are not dependents, in any view of the matter, the deceased was covered under Group Insurance Scheme and the application for recovery of the compensation amount under the provisions of U.P. Motor Vehicles Act, 1939 is not maintainable, were also taken. The Claims Tribunal framed the following six issues:-

1.Whether deceased Chatur Singh died in consequence of accident by truck no. 583 UTK belonging to the State as alleged in para 22 of claim application ?

2.Whether all the claimants are legal representatives of the deceased Chatur Singh?

3.Whether the claimants are entitled to get any compensation? If so, its amount?

4.Whether the claim is barred by Section 61 of Employees State Insurance Act?

5.Whether the claim is time barred?

6.Whether the defendant is not vicariously liable as alleged? If so, its effect?

Issue no. 1 was decided in negative and it was found that the truck no. UTK 583 belonging to the State as alleged in para-22 of the claim petition was not involved in the accident in question. Issue no. 2 was decided in affirmative in favour of the claimants. Issue no. 3 was decided in negative in view of the findings recorded under Issue no. 1. Issues no. 4,5 and 6 were decided in favour of the claimants. However, the claim petition was rejected on the findings recorded under Issue no. 1.

The learned counsel for the appellants submits following two points in support of the appeal:-

Firstly, there is voluminous evidence on record to show that truck no. UTK 583 belonging to the State was involved in the accident and secondly, the compensation amount determined by the Tribunal, though not awarded, is towards lower side.

Taking the first point first, it may be noted that the findings on the said issue went against the claimants principally on the ground that in the FIR lodged by Harish Chandra Singh (PW 7), the brother of the deceased, at Kotwali on the next date of the accident i.e. 3-7-1978 under Sections 279/338/304-A IPC, the truck number does not find place therein. The omission of registration number of the truck in the FIR as also the fact that Harish Chandra Singh the informant was not an eye witness of the accident weighed heavily against the claimants. The contention of the appellants' counsel in this regard is that although the registration number of the truck is not mentioned in the FIR, but that circumstance is not so vital to negate the appellants' claim in toto. There is overwhelming evidence on the record to show that afore stated truck was involved in the accident, he submits.

It is not in dispute that Chatur Singh died on account of road accident. The question to be answered in the appeal is whether there is evidence to show that the truck in question caused the motor accident in which Chatur Singh received fatal injuries.

A bare perusal of the FIR dated 3-7-1978 would show that the deceased got down from the bus at Kuthond near the newly constructed pucca Shramdan Marg leading to village Bichauli and while crossing the road, a Government truck (Sarkari Thela) coming from the side of Madaripur, which was being driven rashly and negligently going towards Jalaun, hit the deceased, with the result he got injuries on his head and body. He fell down and became unconscious. The truck ran away from the spot and the accident was witnessed by Prabhu Dayal son of Shiv Dayal Lohar, Dularey Lal and Sewa Ram all residents of village Harsingpur. These persons informed about the accident at his residence (of the informant) and he rushed to the spot on a tractor. He carried away the injured person (Chatur Singh) to the Sadar Hospital, Orai where he was under medical treatment throughout night and inspite of best efforts made by the Doctors, he succumbed to death at about 4.00 AM on account of injuries. The FIR further states that the informant is not aware about the registration number of the truck, but the witnesses who are presently not available, are aware about it.

A reading of the said FIR clearly shows the factum of the accident and death of the injured person and the truck belonging to the State Government which was responsible for causing the accident finds place place in the FIR. A reasonable inference can be drawn that from the very inception the involvement of Government truck in the accident has been alleged. Although the registration number of the truck does not find place in the FIR but nonetheless the it states that the said registration number is known to the eye witnesses of the accident who were not present at the time of lodging of the FIR. This conduct of the informant is very natural and cannot, for a moment, be said to be cooked up, specially keeping in mind that the brother of the informant who was otherwise hale and hearty received fatal injuries in the accident and throughout the previous night the informant was busy and in attendance of the patient (the injured person) who was fighting with death and died ultimately. There was hardly any time to find out the registration number of the government vehicle (Sarkari Thela) which caused the accident.

At this juncture, the learned counsel for the appellants invited attention of the Court to the case of Superintendent of Police, CBI and others Vs. Tapan Kumar Singh, (2003) 6 SCC 175 wherein it has been laid down by the Apex Court that a first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. An informant may not be an eye witness and he may not know the name of the victim or his assailant. He may not know how the occurrence took place. In the case on hand, the injured having died, the first information report could have been lodged only by a person who had come to know about the occurrence i.e. the accident. The relevant paragraph-20 is reproduced below:-

"20. It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye witness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can."

The effect of the omission of the registration number of the truck in the FIR should be considered in the light of the defence set up by the respondent in the written statement and evidence. The respondent took the plea of alibi in defence. Its case was that the truck in question got off the road from 1-7-1978 to 4-7-1978. It was under repair and was lying idle during this period at Jalaun, vide para-22 of the written statement. To prove it, Jitendra Kumar Junior Engineer had come in the witness box as DW1. He deposed that in the first week of July 1978 the truck in question never went towards the village Bastepur or Madaripur. It was lying at Jalaun Pipe Centre Lift Division, Orai in disrepaired condition since 2-7-1978 to 3-7-1978 and was returned on 3-7-1978. The daily movement of the truck is recorded in the log book. He got the information that the truck requires repairing on 2-7-1978 in the evening through the driver Hukum Singh. He got it repaired under his supervision through Joseph Denn. It was thereafter proceeded to Kanpur on 5-7-1978. The entries from 2-7-1978 to 5-7-1978 are recorded in the log book in his hand writing. Further he deposes that Joseph Denn, who was a Mechanic in the Department and Hukum Singh, driver of the truck have left the job since then.

The Tribunal in the judgment under appeal, after analysing the statement of DW 1, reached to the conclusion that the entries in the log book from 2-7-1978 to 5-7-1978 (Ext. A-1) do not have much relevance. The entries were made in the log book just as per the statement of the driver etc. The relevant portion from the judgment is reproduced below:-

"...........Hukum Singh was the driver of this truck. One Joseph Denn was the mechanic who got the repair done. He has proved the entries in the log book from 2-7-1978 to 5-7-1978. This is Ext. A-1. It is further stated that both Hukum Singh and Joseph Denn had left the service of the department. The cross-examination of the witness reveals that several entries in the log book were made just as per the statement of the driver etc. Hukum Singh has not been examined in the present case on the ground that he was not in the service of the department. Under these circumstances, these entries do not have much relevance......"

From the above observation made by the court below it is evident that even the court below was not prepared to rely upon the entries recorded in the log book and has rejected it in substance. The rejection of the entries made in the log book as well as non-examination of Hukum Singh driver of the truck as also non-examination of the mechanic by the department leads to the conclusion that the respondent has failed to prove the plea of alibi set up by it. In the absence of any evidence to prove the plea of alibi, it is reasonable to draw an inference that the offended truck caused the accident.

It has come on record that construction work of drilling of tube-well through rigs machine was going on in village Barhaiya and in that connection the truck in question was engaged to carry the materials from one place to another.

Harish Chandra Singh (P.W. 7) deposed that Prabhu Dayal and Dularey Lal had disclosed that the Government truck in question was painted with yellow colour. Jitendra Kumar Jain, Junior Engineer in his cross examination has admitted the fact that truck No. UTK 583 was painted with yellow colour. The colour of other truck bearing registration no. UTK 891 is gray. The Tribunal has, in my mind, taken a wrong view that the identity of the truck involved in the accident is not established as the colour of the truck involved in the accident was not mentioned in the FIR. The said approach of the Tribunal is bereft of the ground realities of life and it also ignores the mental condition of the informant who lodged the FIR at the relevant point of time. The informant in the first information report has very clearly stated that he is not an eye witness of the accident and the eye witnesses of the accident were not present at the time of lodging of the first information report. Mentioning of Government truck involved in the accident in the FIR coupled with the evidence led by the parties establishes the identity of the truck involved in the accident. A pragmatic approach and ground realities of life is required in such matters, specially when the deceased was a young person and had left behind him minor children, yet to be settled in life.

Dularey Lal (P.W. 8) is one of the eye witnesses, but his evidence has been discarded on the ground that he happens to be a Lekhpal, by the court below in para-11 of the judgment. Other witness, Prabhu Dayal has been examined as P.W.9. He has also stated that the truck involved in the accident was of yellow colour and was a Government vehicle. He states that the registration number both in English as well as in Hindi was inscribed thereon on the number plate. He further states that he does not know English, but can read Hindi. There is no reason to discard his evidence as he did not disclose the number of the truck to Harish Chandra Singh, the brother of the deceased. The inability to read English numerals is not of much significance as he has stated that the registration number of the truck was also written in Hindi. The reasons given by the Tribunal to discard the statement of eye witness namely Dularey Lal (P.W. 8) and Prabhu Dayal (P.W.9) are not cogent and convincing. On insufficient grounds the oral deposition of these witnesses have been discarded.

The court below has proceeded to answer Issue no. 1 on presumption and assumption as is evident from the observation made by it at the end of paragraph-11 of the judgment.

No doubt it is essential to prove negligence and rash driving of the motor vehicle as an essential ingredient. The burden lies upon the claimant to prove that the accident took place on account of rash and negligent act of the driver of the vehicle concerned. But this fact, in view of the defence set up by the respondent, is of little importance as its case was of total denial of involvement of its truck in the accident in question. Even otherwise also it was neither pleaded nor proved by the respondent that the deceased himself was negligent while crossing the road.

A very important aspect of the case is that the respondent has admitted that Hukum Singh was driver and incharge of truck no. UTK 583. He would have been the best person to explain that the truck in question was not involved in the accident. According to the respondent, the truck was under repair and the repairing work was done by the employee, Joseph Denn. Neither the driver Hukum Singh nor Joseph Denn has been examined as a witness by the respondent and the only explanation given is that they have left the job immediately after occurrence of the accident in question. No document has been produced to show that these persons have left the job. Jitendra Kumar Jain (DW 1) has stated only this much in his deposition that presently Hukum Singh is not a driver in his department and has not met him after 2-7-1978. The court below should have considered the case from this angle also i.e. the effect of non-consideration of statement of driver Hukum Singh and Joseph Denn the mechanic who allegedly repaired the vehicle on 2-7-1978.

Upon consideration of entire material on record, the pleadings and evidence of the parties, it is established that the driver of truck no. UTK 583 was driving the vehicle rashly and negligently, hit Chatur Singh who fell down and succumbed to injuries.

Now I take up the second question regarding the compensation amount to which the claimants-appellants may be entitled. The Tribunal has considered this point in paragraph-24 of the judgment. It has come on the record that Chatur Singh was getting Rs. 361.80 per mensem as pay and allowances at the time of the accident. The court below has also noted that at this rate the deceased would have drawn a sum of Rs. 39,074/- upto the age of superannuation as he was due to retire at the age of 58 years. It was rounded up to Rs. 40,000/-. The Tribunal has disbelieved the claim of the appellants that the deceased was having agricultural income in the absence of bank pass-book etc. Keeping all the factors in mind, the Tribunal reached to the conclusion that the deceased would have earned a sum of Rs. 40,000/- in his life and after making 50% deduction towards personal expenses it determined a sum of Rs. 20,000/- to be payable to the claimants, if found otherwise entitled. The Tribunal has lost sight of the fact that the deceased was having four minor children besides the wife and was also an agriculturist having land of about 80 bighas. Harish Chandra Singh P.W. 7 has deposed that Chatur Singh had about 80 Bigha (35-36 acres) agricultural land and was doing agricultural operations also. The Tribunal has not considered that the deceased being a Lekhpal residing in a village having large agricultural land could earn agricultural income by crop sharing basis. Apart from the above, the Tribunal has not taken into consideration the future prospects of the deceased in life. Deduction of 50% made by the Tribunal from the total estimated income of the deceased is also towards higher side. In such cases, normally 1/3rd deduction towards personal expenses of the deceased are made.

The Apex Court in General Manager, Kerala State Road Transport Corporation Trivandrum Vs. Mrs. Susamma Thomas and others AIR 1994 S.C. 1631 has held that while determining the compensation amount, future prospects of the deceased should also be taken into account.

Taking into consideration the entire facts and circumstances of the case and the fact that the deceased was aged about 49 years and nine years were to go as also the future prospects, the total money which should have been estimated as earned by the deceased in his life time should be taken at round figure of Rs. 60,000/- instead of Rs. 40,000/- and making the deduction of 1/3rd, the compensation amount comes to Rs. 40,000/- to which the claimants would have been entitled. Consequently, this Court awards a sum of Rs. 40,000/- as compensation amount payable by the respondent to the claimants-appellants with interest at the rate of 6% per annum from the date of the application till the date of actual payment.

In the result, the appeal succeeds and is allowed with costs throughout. The judgment and award of the court is set aside accordingly.

(Prakash Krishna, J.)

Dated:6-9-2007

ALS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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