Hon'ble Aditya Nath Mittal,J.
[Per Hon'ble Mr. Justice Devi Prasad Singh]
1. Present appeal under Section 173 of Motor Vehicles Act, has been preferred against the impugned order dated 17.5.2012 passed by the Motor Accident Claims Tribunal/District Judge, Hardoi in Motor Accident Claim Petition No.167 of 2010, rejecting the application moved by the appellants for payment of compensation.
2. Kamalkant son of Babu Ram Gupta was agriculturist and also doing certain business as source of livelihood. On 24.4.2008 at about 5:30 a.m., in the morning, he was going from his residence situated at Mohalla Gipsanganj, Railwayganj, district Hardoi to his village Jairajpur on his motorcycle bearing No.U.P.30-H-6628. Brother of deceased Kamalkant namely, Karunakant was also going to village on his own motorcycle. When they reached near a petrol pump on Hardoi-Sitapur Road, a maruti car bearing Car No.U.P.30-J-2839 coming from Sitapur side, alleged to have been driven rashly and negligently, hit the motorcycle of Kamalkant resulting in the accident in question. In the said accident, the backbone of deceased Kamalkant was fractured and later on, he was brought by Karunakant to the District Hospital of Hardoi. The doctors of District Hospital, Hardoi referred Kamalkant to King George Medical University, Lucknow. An F.I.R. was registered as case crime No.281/2008 under Section 279, 337, 338, 427 IPC at Police Station Kotwali Dehat. On account of fracture of vertebral column, Kamalkant got paralysed and ultimately, succumbed to injuries on 15.7.2009. In consequence thereof, the dependents of the deceased Kamalkant, namely, wife Smt. Chhaya Gupta, son Atri Gupta, daughter Km. Anshi Gupta, and mother Smt. Vidya Devi approached the Tribunal and preferred the claim petition. While filing written statement, the owner and driver of the maruti car denied the accident. Respondent National Insurance Co. Ltd., also denied the factum of accident. However, at the time of accident, it has not been disputed that the vehicle maruti car was insured by the National Insurance Co. Ltd.
3. After considering the pleading on record, the Tribunal framed the following issues:-
1. Whether, on 24.4.2008, at about 5:30 a.m., on Hardoi-Sitapur Road, near the petrol pump adjacent to village Murli Purva, the accident was caused by maruti car No.U.P.30-J-2839 being driven rashly and negligently with the motorcycle bearing No.U.P.30-H-6628 and in consequence thereof, Kamalkant suffered grievous injuries as well as fracture of vertebral column and died during the course of treatment?
2. Whether, the accident was caused because of contributory negligence of drivers of both vehicles ?
3. Whether, vehicle No.UP30-J-2839 as well as motorcycle No.UP30-H-6628 were possessing valid registration certificates as well as driving licence and other relevant documents valid on the date of accident?
4. Whether, on the date of occurrence, the vehicle bearing No.UP30-J-2839 was duly insured?
5. Whether, vehicle No.UP30-H-6628 was driven keeping in view the terms and conditions of the Insurance policy.
6. Whether, the claimants are entitled for any compensation?
4. APW1 Smt. Chhaya Gupta (wife of deceased), APW2 Karunakant Gupta (brother and eyewitness of deceased) APW3 Jagdish Prasad (Tax Clerk District Panchayat Office, Hardoi), APW4. Dr. Ajai Singh, Medical Officer, working in Bala Ji Hospital, Hardoi, under whose treatment the deceased died, APW5 Ashok Kumar, possessing of wholesale shop near Railwayganj, Hardoi, APW6 Ram Deen, Chief Pharmacist, District Hospital, Hardoi who proved the medical certified issued by Dr. Anup Kumar Srivastava, APW7 Dr. Ambuj Singh who issued disability certificate, were examined by the claimants. Apart from these 7 witnesses, the claimants have filed injury report, medical receipts, discharge certificate from Gandhi Memorial & Associated Hospital, Lucknow, certificate of Indian Spinal Injury Centre, New Delhi, discharge certificate from Ram Kishan Mission Sewashram Vivekanand Poly Clinic & Institute of Medical Science, death certificate, driving licence of Ram Mohan Pandey driver of maruti car (supra) insurance policy of maruti car and other material documents were brought on record.
5. After investigation, the investigating officer of the criminal case found that the vehicle number given in the F.I.R. i.e. U.P. 30-J-839 is not of maruti car but is of motorcycle. A final report was submitted. A protest application was filed before the Magistrate who directed for further investigation. During the course of investigation on 28.5.2008, the claimant informed the investigating officer that the number of maruti car is UP30-J-2839 and in the F.I.R., incorrect number was mentioned. In pursuance of the order passed by the Magistrate, during the course of further investigation, it was found that vehicle bearing No.UP30-J-2839 is a maruti car which has caused the accident. Police submitted chargesheet against the owner of the vehicle bearing No.UP30-J-2839 with the report that accident occurred because of rash and negligent driving of maruti car bearing aforesaid number.
6. Tribunal had disbelieved the subsequent police report and chargesheet filed against the owner of the maruti car bearing No.U.P.30-J-2839 on the ground that in the F.I.R., the number given by the claimant is not correct. However, Tribunal seems to have failed to appreciate with regard to important fact that on account of accident, the number plate of maruti car was broken and found at the spot by the investigating officer. The breakage of number plate of maruti car during the course of accident, may be natural cause for mentioning incorrect vehicle number in the F.I.R. The Tribunal should not have over sighted the material evidence on record which indicates the involvement of maruti car in the accident in question. It was incumbent on the Tribunal to take note of oral evidence or statement given by the witnesses on behalf of claimants during the course of trial. The supporting evidence on record in the form of statement of eyewitnesses coupled with the chargesheet filed by the police while proceeding with further investigation in the matter, are trust worthy evidence, which should have been relied upon while recording finding by the Tribunal.
7. It is well settled proposition of law that contents of F.I.R., is not substantive piece of evidence. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station. After lodging of F.I.R., it is for the investigating officer to proceed further and investigate and record a finding which may be different than the contents of F.I.R., vide (2006) 5 VSS 627: Mohd. Yusuf Vs. Afaq Jahan and another; (2003) 12 SCC 241 Hemraj Vs. State of Punjab).
Hon'ble Supreme Court repeatedly held that F.I.R., is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 161 of Evidence Act or to contradict him under Section 45 of that Evidence Act. It is not the requirement of law that the minutest details be recorded in the FIR lodged immediately after the occurrence. The fact of the state of mental agony of the person making the FIR who generally is the victim himself, if not dead, or the relations or associates of the deceased victim apparently under the shock of the occurrence reported has always to be kept in mind, vide (2002) 9 SCC 147 Bijoy Singh and another. Vs. State of Bihar.
8. In case other material evidence with regard to accident proves the involvement of a vehicle, then such evidence should not be ignored merely on account of some omission or commission in the contents of F.I.R. It is settled principle of law that strict rule of pleading as envisaged in Code of Civil Procedure, does not apply to the compensatory proceeding before the claims Tribunal originating in the realm of social justice to the victim of road accident. The basic requirement is that the petitioner should broadly set up his/her case to apprise respondent of necessary particulars of the accident in the format provided by the Rules framed under Motor Vehicles Act. This proposition has been considered by the Division Bench of this Court in a judgment delivered by one of us (Hon'ble Mr. Justice Devi Prasad Singh) reported in [2011 (9) ADJ 597 (DB) (LB)]: Smt. Sundara Devi @ Rooprani and others. Vs. Mohammad Zaheer and others.
After considering catena of judgment of this Court and Hon'ble Supreme Court, the Division Bench in the case of Sundara Devi (supra) held as under:
"25- In view of above, the finding recorded by the tribunal with regard to issue no.1 is not sustainable in view of discrepancy between FIR and charge sheet. The finding recorded in the charge sheet by the police after thorough investigation with regard to involvement of vehicle (in the present case) should have been believed by the tribunal, more so when according to the statement of DW 1 himself, he was seen at the place of occurrence alongwith his motorcycle and it abundantly clears beyond doubt that accident has occurred from the vehicle in question."
Aforesaid proposition of law has been reiterated in other case reported in [[2011 (9) ADJ 758 (DB) (LB)]: State of U.P. Vs. Smt. Chandrawati.
9. In (2009) 13 SCC 530: Bimla Devi and others. Vs. Himachal Road Transport Corporation and others, Hon'ble Supreme Court held that while dealing with a case under Section 166 of Motor Vehicles Act, a Tribunal stricto sensu is not bound by pleadings of parties. It should have holistic view of the matter considering the entire factual matrix and circumstances on record. The claimants have to establish merely their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt, could not have been applied, to quote relevant portion of Bimla Devi (supra) para 11, 14 and 15:-
"11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post mortem report vis-`-vis the averments made in a claim petition.
14. Some discrepancies in the evidences of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying burden of proof in terms of the provisions of Section 106 of the Indian Evidence Act as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by the respondent Nos.2 and 3.
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
10. In one other case reported in 2013 (2) ACCD 969 (SC): Rajesh and others. Vs. Rajbir Singh and others, Hon''ble Supreme Court held that courts should not succumb to niceties or technicalities while dealing with a case under Motor Vehicles Act for grant of compensation. Attempt of courts should be to equate as far as possible, misery for grant of compensation, to quote relevant para-15:-
"15. Underlying principle discussed in the above decisions is with regard to the duty of the Court to fix a just compensation and it has now become settled law that the Court should not succumb to niceties or technicalities, in such matters. Attempt of the Court should be to equate, as far as possible the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim."
11. In a recent judgment of a Division Bench (consisting of Hon'ble Mr. Justice Devi Prasad Singh and Hon'ble Mr. Justice Ashok Pal Singh), in the case bearing F.A.F.O. No.103 of 2014, Prabandhak U.P. Rajya Sadak Parivahan Nigam Through Regional Manager Vs.Smt. Rabia Begum & Others, decided on 3.3.2014, delivered by one of us (Hon'ble Mr. Justice Devi Prasad Singh), after considering catena of judgments of Hon'ble Supreme Court, held as under:-
"28 To sum up:-
1. Burden of proof with regard to contributory negligence shall be on the party who pleads for it. The contributory negligence should be proved like other issues. No inference may be drawn solely from Naksha Nazari or mere pleading on record.
2. Compassionate appointment is the service condition of an employee applied in case the scheme has been framed by the employer. It is not an advantage receivable by heirs on account of death and have co-relation of amount receivable under the statutes occasioned on account of accidental death. Compassionate appointments have nexus with the death of an employee during the course of service and not otherwise (supra).
3. The Tribunal/Court has a duty, irrespective of the claims made in the application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for payment of compensation (supra). However, in case the Tribunals or the Courts depart from pleading on record with regard to quantum of compensation, then they have to assign reason based on cogent and trust worthy evidence as well as keeping in view the facts and circumstances of each case. The appointment on compassionate ground does not fall within the definition of pecuniary advantage which may come under the the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. The amount received on compassionate appointment, is not liable for deduction for determination of compensation under Motor Vehicles Act.
4. In view of redundancy of second schedule of the Motor Vehicles Act and judgment of Hon'ble Supreme Court (supra), an amount of Rs.25,000/- may be awarded for funeral expenses and Rs.1,00,000/- for the loss of consortium. The percentage of deduction of amount on account of personal and living expenses of the deceased, may vary with reference to different number of members in the family and the personal and living expenses of the deceased need not exactly be corresponding to the number of dependents.
5. In the event of deceased being survived by parents and siblings, the latter would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family.
However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to 1/3 and contribution to the family will be taken as 2/3.
Where, the deceased is married, the deduction towards personal expenses and living expenses should be 1/3, where number of dependents of the family is 2 or 3, 1/4, where number of dependents of the family is 4 to 6, the deduction may be 1/5 (supra).
6. In case, the deceased is a salaried person, upto 40 years of age an addition of 50% to the actual income of deceased while computing future prospects, may be made. The actual income should be income after paying tax if any. In the event of deceased being in the age group of 40-50 years, addition would be 30% and for persons above 50 years, it is not necessary to add an amount for future prospects.
In the event of deceased being self-employed or on fixed wages and where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 50% for victim below 40 years; 30% for victim between 40 to 50 years and 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable.
With regard to other self employed persons, an addition of 30% may be made in lieu of future prospects (supra)."
12. In view of the above, keeping in view the material evidence on record which includes oral evidence as well as chargesheet submitted by the police, the involvement of maruti car bearing U.P.30-J-2839 may not be ruled out. It appears that because of shock, mental pain and agony, and the breakage of number plate, the informant could not indicate the correct number of vehicle in the F.I.R. Since the eyewitness on record, the chargesheet submitted by the police and recovered broken number plate establish the involvement of maruti car (supra) in the accident, there is no reason to take other view because of incorrect description given in the F.I.R., which itself is not a substantive evidence in view of the settled proposition of law.
13. The Tribunal has recorded a finding that vehicle maruti car UP30-J-2839 possessed valid registration certificate and was insured by the respondent National Insurance Company for the period 8.2.2008 to 7.2.2009. The driver of the maruti car was having valid driving licence. The vehicle was used in accordance with terms and condition of the insurance policy.
14. In view of the above, the compensation may be awarded and respondent National Company may be directed to pay compensation on account of accident in question. The deceased was agriculturist and also possessing small scale business. During the course of trial, the claimants seem to have not brought on record the income tax return or any documentary evidence to establish the annual income of the deceased.
15. The work of agriculture itself requires huge experience and scientific knowledge hence, an agriculturist may be treated as skilled person and income of the deceased may be ascertained notionally in view of recent judgment of Hon'ble Supreme Court in the case reported in [2013 (31) LCD 2022]=(2013) 10 SCC 695: Minu Rout and another. Vs. Satya Pradyumna Mohapatra and others. While treating the driver as skilled person, Hon'ble Supreme Court has assessed the notional income at the rate of Rs.6000/- per month. Accordingly, the income of the deceased may be assessed at the rate of Rs.6000/- per month and 30% may be added in the notional income for future prospects. Thus, the total monthly income of the deceased would be Rs.7800/- (notional income Rs.6000/-+30% of notional income i.e., Rs.1800/- = Rs.7800/-) per month, amounting to Rs.93600/- per annum. After deduction of 1/3 amount from the annual income, the net annual income of the deceased would be Rs. 62400/-(93600-31200= 62400/-) and multiplier of 17 would be applied to the net annual income. In view of recent judgment considered by Hon'ble Supreme Court in the case of F.A.F.O. No.103 of 2014: Prabandhak U.P. Rajya Sadak Parivahan Nigam through Regional Manager Vs. Smt. Rabia Begum & Others (supra), an amount of Rs.25000/- may be assessed as funeral expenses, and Rs.100000/- for loss of consortium.
16. In view of the above, the annual income of the deceased shall be Rs.93600/-per annum [6000+1800=7800 (notional income Rs.6000+Rs.1800 30% of notional income) x12=93600] (supra). After deduction of 1/3 amount as personal expenses, i.e., Rs.31200/- from the annual income, the net annual income of the deceased shall be Rs.62400/- [93600--31200=62400]. According to claim petition, the deceased was aged about 34 years at the time of death as a result of the accident (supra). Therefore, multiplier of 17 shall be applied under Schedule II of Motor Vehicles Act. Thus, after applying multiplier of 17, to the net annual income of the deceased, the compensation comes to Rs.1060800/- (62400 x17=1060800). After addition of Rs.25000 as funeral expenses, as well as Rs.5000/- for loss of estate and Rs.100000/- (rupees one lakhs) as loss of consortium, total compensation towards loss of dependency of the claimants, shall be Rs.1190800/- [Rs.1060800+25000+100000+5000=Rs.1190800/-].
17. Accordingly, the appellants seem to be entitled for payment of compensation to the tune of Rs.1190800/- along with interest at the rate of 8% from the date of filing of petition before the Tribunal.
18. Appellant No.1 is the wife of the deceased, appellant No.2 and 3 are son and daughter of the appellant whereas, the appellant No.4 is the mother, aged about 70 years. An amount of Rs.3,00,000/- is awarded to the appellant No.1 which shall be kept in interest bearing account of a nationalised bank for a period of two years. Thereafter, she shall be entitled to withdraw the amount. An amount of Rs.3,00,000/- (rupees three lakhs) each is awarded to the appellant No.2 Atri Gupta and appellant No.3 Km. Anshi Gupta, which shall be kept in interest bearing account by the Tribunal till they attain the age of majority. An amount of Rs.1,00,000/- is awarded to the appellant No.4, the mother Smt. Vidya Devi aged about 70 years, which shall be released in her favour through a bank draft of a nationalised bank. The remaining amount of Rs.1,90,800/- shall be released through bank draft of a nationalised bank in favour of the appellant No.1 Smt. Chhaya Gupta to meet out the immediate requirements. The Tribunal shall award compensation along with interest in the same proportion.
Respondent No.3 National Insurance Company Limited, Railwayganj, Hardoi, shall deposit the entire compensation in terms of the present judgment and award within a period of three months. Thereafter, the Tribunal shall release the compensation in terms of present judgment within a period of two months.
19. Appeal is allowed accordingly. No orders as to costs.
[Justice Aditya Nath Mittal] [Justice Devi Prasad Singh] Order Date :- 26.3.2014 Rajneesh DR-PS)