…..... Manik Chand Gupta … v. Sheo Shankar Prasad Swarnkar & Others
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Appellate Jurisdiction) M.A. No. 215 of 2018 …..... Manik Chand Gupta …. ..... Appellant Versus Sheo Shankar Prasad Swarnkar & Others ..... Respondents CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO For the Appellant …......... : Mr. Ritesh Kumar Gupta, Advocate. Mrs. Aanya, Advocate. For the Resp Nos. 1 to 5 : Mr. A.K. Sahani, Advocate. For the Respondent No.6: Mr. Praveen Akhouri, S.C. (Mines)-I. For the Respondent No.7: Mr. Manish Kumar, Advocate. For the Respondent No.8: Mr. Manindra Kr. Sinha, Advocate. The matter is being taken up through Video Conferencing. Learned counsel for the parties have no objection with it and submitted that the audio and video qualities are good. 09/05.05.2023. ........ Heard, learned counsel, Mr. Ritesh Kumar Gupta assisted by learned counsel, Mrs. Aanya appearing on behalf of appellant, learned counsel for the respondents / claimants, Mr. A.K. Sahani, learned counsel for the respondent / State, Mr. Praveen Akhouri, S.C. (Mines)-I, learned counsel for the respondent / United India Insurance Company Limited, Mr. Manish Kumar and learned counsel for the respondent no. 8, Mr. Manindra Kumar Sinha. Appellant - Manik Chand Gupta, son of Late Sita Ram Saw, resident of Gaddi Mohalla, Contractor of PWD Department, Giridih, P.O. & P.S. - Giridih, District – Giridih, Jharkhand has preferred this appeal against the award dated 27.01.2018 passed by learned District Judge-II-cum-M.A.C.T., Giridih in Motor Accident Claims Case No. 15/2008, whereby the claimants namely, (1) Sheo Shankar Prasad Swarnkar, son of Ram Awatar Prasad Swarnkar, (2) Binod Prasad Swarnkar, son of Ram Awatar Prasad Swarnkar, (3) Shyam Sunder Prasad Swarnkar, son of Ram Awatar Prasad Swarnkar, (4) Dewanti Devi, Daughter of Ram Awatar Prasad Swarnkar and (5) Shanti Devi, Daughter of Ram Awatar Prasad Swarnkar, resident of Isari Bazar, P.S. - Nimiaghat, District - Giridih have been awarded compensation to the tune of Rs. 3,34,000/- along with simple interest @ 6% per annum from the date of filing of the claim application i.e. 29.05.2008 -2- till the realization of the compensation amount from O.P. No. 2, Manik Chand Gupta. The O.P. No. 2, Contractor of P.W.D., Giridih is directed to pay the compensation amount including the interest to the claimants within a period of sixty days from the date of the order, failing which the claimants will be at liberty to realize the same through the process of court and the interest at the rate of 9% per annum shall be calculated after expiry of 60 days.
Legal Reasoning
8. After having perused the evidence of PW 7, site map (Ext. P- 45) and the detailed analysis undertaken by the Tribunal, we have no hesitation in taking the view that the approach of the High Court in reversing the conclusion arrived at by the Tribunal on Issue 1 has been very casual, if not cryptic and perverse. Indeed, the appeal before the High Court is required to be decided on fact and law. That, however, would not permit the High Court to casually overturn the finding of fact recorded by the Tribunal. As is evident from the analysis done by the -6- Tribunal, it is a well-considered opinion and a plausible view. The High Court has not adverted to any specific reason as to why the view taken by the Tribunal was incorrect or not supported by the evidence on record. It is well settled that the nature of proof required in cases concerning accident claims is qualitatively different from the one in criminal cases, which must be beyond any reasonable doubts. The Tribunal applied the correct test in the analysis of the evidence before it. Notably, the High Court has not doubted the evidence of PW 7 as being unreliable nor has it discarded his version that the driver of the Maruti car could not spot the parked Gas Tanker due to the flashlights of the oncoming traffic from the front side. Further, the Tribunal also adverted to the legal presumption against the driver of the Gas Tanker of having parked his vehicle in a negligent manner in the middle of the road. The site plan (Ext. P-45) reinforces the version of PW 7 that the truck (Gas Tanker) was parked in the middle of the road but the High Court opined to the contrary without assigning any reason whatsoever. In our view, the site plan (Ext. P-45) filed along with the charge-sheet does not support the finding recorded by the High Court that the Gas Tanker was not parked in the middle of the road. Notably, the High Court has also not doubted the claimant's plea that the Gas Tanker/offending vehicle was parked without any indicator or parking lights. The fact that PW 7 who was standing on the opposite side of the road at a distance of about 70 ft, could see the Gas Tanker parked on the other side of the road does not discredit his version that the Maruti car coming from the opposite side could not spot the Gas Tanker due to flashlights of the oncoming traffic from the front side. It is not in dispute that the road is a busy road. In the cross-examination, neither has any attempt been made to discredit the version of PW 7 nor has any suggestion been made that no vehicle with flashlights on was coming from the opposite direction of the parked Gas Tanker at the relevant time. 9. Suffice it to observe that the approach of the High Court in reversing the well-considered finding recorded by the Tribunal on the material fact, which was supported by the evidence on record, cannot be countenanced. 10. Accordingly, we have no hesitation in setting aside the said finding of the High Court. As a result, the appellants would be -7- entitled to the enhanced compensation as determined by the High Court in its entirety without any deduction towards contributory negligence. In other words, we restore the finding of the Tribunal rendered on Issue 1 against the respondents and hold that Respondent 1 negligently parked the Gas Tanker/offending vehicle in the middle of the road without any indicator or parking lights. After hearing the parties and on the basis of the materials available on the record and the judgments placed before this Court, this Court has no hesitation in holding that Kamal Kumar Swarnkar @ Kamli had lost his life in an unfortunate accident on 05.11.2007 while going on a Hero Honda Motorcycle bearing registration no. JH-02J-2358, which dashed with a Water Tanker standing in middle of the road, requisitioned by the O.P. No. 2, Manik Chand Gupta. The deceased died at the age of 25 years having earning of Rs. 8,000/- per month from his business of repairing and manufacturing ornaments. From perusal of the impugned award, it appears that the appellant / O.P. No. 2 has appeared before the learned Tribunal through his counsel and filed written statement, but did not adduce any oral or documentary evidence. The contention raised by the appellant / O.P. No. 2 that the contents of the F.I.R. (F.I.R. of Dumri P.S. Case No. 63/2007 has been marked as Exhibit-3 and Charge- sheet of Dumri P.S. Case No. 63/2007 has been marked as Exhibit-4) shows that the vehicle was driven by deceased himself and as such, there is contradiction in the evidence recorded by learned Tribunal with regard to the police paper. This fact has been rebutted by learned counsel for the claimants as well as learned counsel for the Insurance Company on the ground that the Water Tanker was not insured before any Insurance Company and as per the claimants' case, Anil Kumar was driving the motorcycle, whereas Kamal Kumar Swarnkar @ Kamli was pillion rider. Further, appellant / O.P. No. 2 failed to adduce any evidence to rebut the case of the respondents / claimants. In view of the judgment passed by the Hon'ble Apex Court in the case of National Insurance Company Ltd. v. Chamundeswari -8- (Supra) wherein it has held that the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report, it appears in the present case that the learned Tribunal has rightly considered the deposition of the witnesses examined on the behalf of the respondents / claimants where it has been categorically stated that the tanker was standing in the middle of the road and the deceased was the pillion rider. Since the appellant / O.P. No. 2 failed to prove the above contention of the respondents / claimants and no evidences were adduced by the appellant / O.P. No. 2 to rebut the claim made by the claimants to substantiate their plea. Even the contents of the First Information Report has never been exhibited by the appellant / O.P. No. 2 before the learned Tribunal and as such, such contradictions is not fatal for the case of the claimants. So far contributory negligence is concerned, it appears from para-2 of the impugned award that the water tanker was standing in the middle of the road and no contrary evidence has been brought on record by the opposite parties including the appellant-Manik Chand Gupta and in view of the judgment passed by the Hon'ble Apex Court in the case of Archit Saini (Supra) (Para-10), this Court has no hesitation in holding that there is no contributory negligence on the part of the motorcycle rider. Accordingly, this issue is also negated. Thus, this Court is of the opinion that appellant / O.P. No. 2 was not diligent in pursuing the matter, as claimants have lost their brother, who was bread-earner of the family. Accordingly, this Court is of the opinion that the impugned order does not suffer from any illegality, impropriety or irregularity from the evidence adduced before the learned Tribunal. It is expected that appellant - Manik Chand Gupta, the appellant / O.P. No. 2, who is Contractor shall indemnify the award to the claimants as awarded by the learned Tribunal. Though the awarded amount is meagre for an accident dated 05.11.2007, but since no enhancement appeal / cross-objection has been filed by the -9- claimants, this Court, in view of the judgment passed by the Hon'ble Apex Court in the case of Ranjana Prakash Vs. United India Insurance Company Limited reported in (2011) 14 SCC 631 (Para- 8), is not inclined to enhance the same. Para-8 of the aforesaid judgment may profitably be quoted hereunder: 8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.
Arguments
Learned counsel for the appellant, Mr. Ritesh Kumar Gupta has assailed the impugned award on the ground that there is a contradictory finding in para-15 of the impugned award, as in the initial part, learned Tribunal has considered that the deceased was driving the motorcycle, but in subsequent part, learned Tribunal has considered that Anil Kumar was driving the vehicle and Anil Kumar being the opposite party no. 4, the solitary eye-witness has not been examined before the learned Tribunal. Learned counsel for the appellant has further submitted, that from perusal of F.I.R. and charge-sheet, it clearly indicates that the deceased was driving motorcycle at the time of accident in rash and negligent manner, resulting into head injury and lost his life, as such there was a contributory negligence on the part of the deceased, which has not been considered by the learned Tribunal. Learned counsel for the appellant has relied upon the evidence dealt in para-15 of the impugned award, which reads as follows:- “That a case punishable under Section 279, 337 and 304A IPC has been registered against the driver of Hero Honda Motorcycle no. JH-02J-2358 namely Kamal Kumar Swarnkar @ Kamli on the basis of fardbeyan given by Anil Kumar who is the owner of the motorcycle (Ext. 3) and after investigation, the police has also submitted charge sheet (Final Form) (Ext. 4) against the deceased Kamal Kumar Swarnkar @ Kamli. Meaning thereby, the deceased was driving the motorcycle at the time of occurrence rashly and negligently due to which the occurrence took place but the claimants have claimed that the deceased Kamal Kumar Swarnkar was the pillion rider and the motorcycle was being driven by its owner -3- namely Anil Kumar @ Anil Pandit. However, they have not seen the occurrence. As such, there are vital contradictions in their evidences. The claimants have made party to the owner of the motorcycle namely Anil Kumar as O.P. No. 4 but he has not come to depose in the case wheres he is the solitary eye witness of this case. As such, it is crystal clear that the claimants have filed this claim suit only with a view to take compensation from the O.P. No. 3 M/s United India Insurance Company Limited.” Learned counsel for the appellant has thus submitted, that contributory negligence has to be decided in favour of appellant / O.P. No. 2, Manik Chand Gupta upon considering the F.I.R. and charge-sheet, which has been over-looked by the learned Tribunal and the compensation may be reduced to 50% on the basis of contributory negligence. Learned counsel for the United India Insurance Company Limited, Mr. Manish Kumar has submitted, that the learned Tribunal has held that the O.P. No. 3, United India Insurance Company Limited is not liable to pay compensation to the claimants as the deceased was a pillion rider. The motorcycle was insured before the United India Insurance Company Limited, but the Water Tanker was never insured before the United India Insurance Company Limited, as such, liability has rightly been fastened upon Manik Chand Gupta (appellant herein). Learned Tribunal has further mentioned that no any vehicular documents or Insurance Policy of the water tanker has been produced by the appellant / O.P. No. 2, Manik Chand Gupta who has requisitioned the water tanker from actual owner for construction of road and this fact has not been rebutted by the appellant / O.P. No. 2. Learned counsel for the respondents / claimants, Mr. A.K. Sahani has submitted, that since the Water Tanker has not been insured with the Insurance Company, the learned Tribunal has rightly held that Manik Chand Gupta being the Contractor, who has requisitioned the water tanker, is liable to indemnify the award. -4- Learned counsel for the respondents / claimants has further submitted, that though the claimants have been paid meagre amount under the conventional head as well as future prospect has not been considered. The interest has also been given on the lower side, but inadvertently the claimants have neither filed any Cross-Objection nor appeal for enhancement of the award, as such, claimants are not agitating the issues. Learned counsel for the respondents / claimants has further submitted, that whatever the issue, which has been raised by learned counsel for the appellant / O.P. No. 2 with regard to contradiction in the FIR and the Charge-sheet, which the learned Tribunal as well as this Court has only to consider and give weightage to the evidence adduced and recorded before the learned Tribunal and not to rely upon the contents of the F.I.R. or Charge-sheet, as has been held by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Chamundeswari passed in Civil Appeal No. 6151/2021, reported in (2021) SCC OnLine SC 849, and decided on 01.10.2021. The relevant part of para-8 may profitably be quoted hereunder:- “In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report.” (Emphasis Supplied) Learned counsel for the respondents / claimants has thus submitted, that in absence of any evidence adduced by appellant being the O.P. No. 2 before the learned Tribunal, claim application has rightly been decided by the learned Tribunal. Learned counsel for the respondents / claimants has referred para-12 of the impugned award passed by the learned Tribunal, where learned Tribunal has categorically mentioned that the Opposite parties have not adduced any oral or documentary evidence to rebut the case of the claimants. Further, no contrary evidence has been brought on record by the appellant before the learned Tribunal, -5- as such, in view of the judgment passed by the Hon'ble Apex Court in the case of Chamundeswari (Supra), the learned Tribunal was justified in considering the evidence adduced before the learned Tribunal. Learned counsel for the respondents / claimants has further submitted, that so far contributory negligence is concerned, as per the case of the parties as recorded in para-2 of the impugned award that the Water Tanker is kept on the middle of the road by O.P. No. 2 and the Hon'ble Apex Court in the case of Archit Saini Vs. Oriental Insurance Company Limited reported in (2018) 3 SCC 365 has dealt this issue in paragraph-7, 8, 9 & 10 and has held that respondent no. 1 has negligently parked the Gas Tanker/offending vehicle in the middle of the road without any indicator or parking lights and thus, denied the claim of contributory negligence. The present case is identical to the case of Archit Saini (Supra), as such, in absence of any evidence adduced by the appellant / O.P. No. 2, Manik Chand Gupta before the learned Tribunal, the issue of contributory negligence cannot be decided against the claimants, as such, this Issue may also be rejected. Paragraph no.s 7, 8, 9 & 10 of the aforesaid judgment may profitably be quoted hereunder:- 7. In the present appeals, the moot question is whether the High Court committed manifest error in reversing the well considered decision of the Tribunal on Issue 1 answered against the respondents, instead concluding that it was a case of 50% contributory negligence on the part of the deceased driver of the Maruti car.
Decision
In the result, the appeal, being devoid of any merit, is hereby dismissed. The Statutory amount deposited by the appellant at the time of preferring this appeal shall be remitted to the learned Tribunal so as to indemnify the award to the claimants. If it is found in excess of the awarded amount, the same shall be returned to the appellant. Let the L.C.R. be sent down. Sunil/- (Kailash Prasad Deo, J.)