A.S. Naidu, J.
1. The Judgment dated 14th May, 2002 passed by the 2nd Motor Accident Claims Tribunal (SD), Berhampur in MAC No. 631/1999 (88/1995) is assailed in MACA No. 50 of 2002 by the Oriental Insurance Company which was Respondent No. 2 in the said MAC. The same Judgment is assailed in MACA No. 274 of 2003 by Smt. Bijayalaxmi Tripathy and others who were the Petitioners in the said MAC. Both the appeals having arisen out of the same Judgment of the Tribunal, the same were taken up for hearing together.
2. Respondents 1 to 5 in MACA No. 50 of 2002 who are Appellants in MACA No. 274 of 2003 and are respectively the widow, minor son and daughter and dependent parents of one Simachal Tripathy, had filed the aforesaid MAC before the Tribunal claiming a compensation of Rs. 4,00,000.00 on account of death of said Simachal Tripathy in a motor vehicle accident on 6-11-1994. It was averred by them that Simachal Tripathy was working as the Conductor in a bus bearing registration number OSN 649. On 6-11 -1994 while, as the Conductor, he was going in that bus due to rash and negligent driving of the driver, not being able to maintain balance fell down from the bus and a rear wheel of the bus run over his head causing instantaneous death.
3. The owner of the bus having not contested the case after receiving notice was set ex parte.
The Oriental Insurance Company which was Respondent No. 2 in the MAC filed its written statement disputing the relationship of the Petitioners with the deceased. Besides, the Insurance Company also disputed the income of the deceased and baldly refuted the other averments of the Petitioners. Further, averring that there was violation of the conditions of the insurance policy of the bus and that the bus having no valid route permit on the date of the accident as also the driver having not possessed a valid driving licence, it took the plea that it was not liable to pay any compensation. It also stated that the death in question having occurred due to the own negligence of the deceased as he was trying to climb to the roof of the running bus when he fell down and was run over by a rear wheel of the bus, its liability to pay any compensation did not arise.
4. On the basis of the averments of the parties, the Tribunal framed three issues to adjudicate the case. While the Petitioners got three witnesses examined on their behalf including a doctor and exhibited six documents comprising of the police papers and insurance policy of the bus, the Insurance Company adduced no evidence, either oral or documentary. After considering the materials available on record, the Tribunal was satisfied that the Petitioners were entitled to compensation. Considering the age and income of the deceased as well as other factors, the Tribunal awarded a compensation of Rs. 1,86,500.00 with 9% interest thereon from the date of filing of the MAC, i.e. 25-4-1995 and directed the Insurance Company to pay the same within two months, failing which it would be liable to pay interest on the compensation amount at the rate of 12% per annum.
5. The Petitioner-Appellants in MACA No. 274 of 2003 challenge the Judgment of the Tribunal on the ground that the compensation awarded is as inadequate. According to Dr. Dash, their Learned Counsel, the Tribunal acted illegally and with material irregularity in holding that the annual income of the deceased was Rs. 15,600.00 while evidence reveals that he was receiving a salary of Rs. 2,250.00 per month besides receiving Rs. 3,000.00 per month towards his dress and food.
6. The submissions of Dr.Dash are strongly repudiated by Mr. Sinha, Learned Counsel appearing for the Insurance Company. According to him, the Cleaner of the same bus who was travelling in the bus at the time of the accident had filed FIR with police clearly stating therein that while the deceased was trying to climb to the roof of the bus to sleep there, his legs slipped and he fell down. When he hauled noticing the said fall, the driver stopped the bus, but by then the deceased had been run over by the bus. The said FIR was marked Ext. 2. After investigation police submitted final form exonerating the driver which reveals that there was no negligence of the driver. He further submitted that as the accidental death had occurred due to the negligence of the deceased himself, the Insurance Company was not at all liable to pay any compensation. In the alternative according to Mr. Sinha the compensation awarded by the Tribunal has been exorbitant as there is no documentary evidence with regard to the income of the deceased and the same should be drastically reduced.
7. According to Dr. Dash, the Insurance Company having not filed any petition under Section 170 of the Motor Vehicles Act it cannot be permitted to challenge the quantum of compensation before this Court. She further submitted that FIR and final form submitted by police are not substantive evidence and therefore the Tribunal rightly rejected the same. Referring to the evidence of P.W. 1 (widow of the deceased) and that of P.W. 2 (Cleaner of the bus) Dr. Dash reiterated that the Tribunal acted illegally in arriving at the conclusion on the basis of the Minimum Wages Act that the monthly income of the deceased was only Rs. 1,300.00 while evidence on record reveals that his monthly income could be Rs. 2,250.00 in the minimum. She further submitted that no compensation has been awarded by the Tribunal on the heads of funeral expenses, loss of love and affection, mental agony, consortium, etc.
8. I have heard the Learned Counsel for the parties at length and perused the materials available on record. No doubt the FIR Ext. 2 states a different story from what has been narrated by the Petitioner-Appellants in their petition filed before the Tribunal for compensation. But then it appears from the statements of P.W. 2, who lodged the FIR that he had no knowledge with regard to the contents of the FIR. He did not knowhow to read or write and the contents of the FIR were never read over and explained to him. He also clearly deposed that due to rash and negligent driving of the bus the deceased Conductor who was standing near the door of the bus was thrown out of the bus, ran over by a rear wheel of the bus and died instantaneously. Though he was cross-examined, nothing could be elicited from his evidence to discredit him.
9. Law is well settled that the contents of an FIR can only be used as a corroborating/contradicting piece of evidence. P.W. 2 clearly denied the suggestion made to him with regard to veracity of the statement made in the FIR. Thus the statements made in the FIR lose all force. It is no more res integra that the statements made in the FIR, Case Diary and charge-sheet cannot be considered as substantive evidence. Therefore the Tribunal rightly discarded the FIR, more so because P.W. 2 who was-the informant denied the contents thereof in Court. After perusing the FIR, Ext. 2, a doubt arises as to veracity of the facts narrated therein. Admittedly the accident occurred in the month of November, that too after a midnight. It sounds improbable that in the month of November, in the chilled hour after midnight, anybody would relish to sleep on the roof-top of a running bus. The evidence, of the doctor P.W. 3 and the post-mortem report Ext. 3 reveal that the head of the deceased was crushed and the brain matter had come out. Thus the story narrated in the FIR that the death had occurred due to fall while climbing to the roof-top of the bus cannot be believed without a pinch of salt.
10. So far final form Ext. 4 submitted by police exonerating the driver of the bus of any liability is concerned, it is well settled that a final form is only an opinion of police and therefore Ext. 4 cannot be the sole basis of arriving at a finding in a motor accident claim case that the driver was not rash or negligent. Even otherwise, a perusal of the written statement filed by the Insurance Company before the Tribunal reveals that no plea as to contributory negligence of the deceased for the accidental death had at all been taken. Even otherwise, the submission of Mr. Sinha that that in a case where a person falls down from a bus the insurer would not be liable to pay any compensation cannot be accepted for the simple reason that in a base where a person travelling at the roof-top of a bus is thrown out, the insurer would be liable to pay compensation, as has been held earlier by this Court in the case of D.M., New India Assurance Co. Ltd. v. Sanjukta Mallik and Ors. reported in 2001 (1) AIR 537. In view of the aforesaid discussion this Court does not find any reason to disagree with the findings of the Tribunal that due to rash and negligent driving of the bus the accidental death of the Conductor had occurred.
11. The Tribunal, after considering the entire materials available on record, has directed payment of compensation to the Petitioners before him as stated above. The Insurance Company having not filed any petition under Section 170 of the Motor Vehicles Act is not permitted to challenge the quantum of compensation as directed to be paid by it.
12. The grievance of the Petitioner-Appellants before this Court is that the Tribunal acted illegally in assessing a lower income of the deceased. Admittedly no documentary evidence was produced by them before the Tribunal in support of the income of the deceased as averred by them. The owner of the bus did not appear in the case to testify the averment of the Petitioner-Appellants in that regard. Though P.W. 1, the widow of the deceased, disposed that the deceased was earning Rs. 2,250.00 per month, her statement was based only on information. P.W. 2 was the Cleaner of the bus. According to him the deceased Conductor was getting a wage of Rs. 75.00 per day. He5 did not clarify as to whether the deceased was paid wages on holidays or on days he was not working. Excepting the aforesaid two witnesses, no other witness has been examined nor any document has been produced with regard to the income of the deceased who was working as Conductor in a private bus. The Tribunal held that a bus conductor could be considered to be a skilled labourer and assuming that a conductor of a private bus would be earning a wage of Rs. 50.00 per day, arrived at the conclusion that his income could be Rs. 1,300.00 per month excluding four Sundays in a month. Deducting 1/3rd out of that income towards the personal expenditure of the deceased, the Tribunal held that the contribution of the deceased to his family could be Rs. 10,400 per annum. While calculating the compensation payable to the Petitioner-Appellants the Tribunal has awarded Rs. 5,000.00 towards loss of consortium; Rs. 2,000.00 towards funeral expenses; and Rs. 2,500.00 towards loss of estate and has awarded a total amount of Rs. 1,86,500.00 as compensation. After considering the facts and circumstances of the case, this Court feels an amount of Rs. 2,00,000.00 with 7.5% per annum interest thereon from the date of filing of the case before the Tribunal, instead of Rs. 1,86,500.00 with 9% interest thereon as awarded by the Tribunal would be just and appropriate compensation.
13. This Court therefore allows MACA No. 274 of 2003 without costs, modifies the Judgment of the Tribunal with regard to compensation payable to the Petitioner-Appellants and directs the Respondent-Oriental Insurance Company to pay them a compensation of Rs. 2,00,000.00 with 7.5 % interest per annum thereon from the date of filing of the MAC before the Tribunal, i.e. 25-4-1995. The Respondent-Oriental Insurance Company shall deposit the entire amount as per this Judgment before the Tribunal within six weeks hence which shall be disbursed to the Petitioner-Appellants after deducting therefrom the Court-fees payable by them in this appeal and proportionately apportioning the same as per the stipulations made in the impugned Judgment of the Tribunal.
This Court dismisses MACA No. 50 of 2002 filed by the Oriental Insurance Company without cost. The statutory deposit made in this appeal be returned to the Oriental Insurance Company through a crossed-cheque.