1. This appeal has been directed against the judgment dated 04.04.2009 passed by the 3 rd Motor Accident Claims Tribunal, Rourkela, Sundargarh in M.A.C. Case No.478 of 2007 by the Divisional Railway Manager, South Eastern Railway, Chakradharpur Division, AT/ PO: Chakradhapur, Dist: Chainbasa, Jharkhanda.
2. The case of the petitioner before the Tribunal in a nutshell is that on 03.11.2007 at around 3.30 P.M. when the deceased was standing near Chandini Chawk, Dandapada of Biramitrapur on the extreme left side of the road the offending truck bearing registration No.ORO-4785 driven by its driver rashly and negligently dashed against the deceased. As a result of such accident, the deceased sustained fatal multiple injuries and succumbed to the same at the spot for which accident Biramitrapur P.S.Case No.162 of 2007 corresponding to G.R.Case No.2031 of 2007 was registered. At the time of accident the petitioner was earning Rs.5,000/- per month. Due to death of the deceased, his dependants were not only deprived of the income of the deceased but also they lost his love and affection. With these averments the claim petition was filed claiming compensation of Rs.7,00,000/-.
3. Before the Tribunal, the opp. Party-railway authority contested the case and filed their written statement. The opp. party Railway raised preliminary objections regarding maintainability of the case for non-joinder of necessary parties. Opp. party-Railway also denied all the allegations made in the claim petition including age, monthly income of the deceased and rash and negligent driving of the offending truck at the relevant time. It was further contended that as the deceased was in a drunken state he suddenly came in front of the vehicle and sustained injuries and therefore, Opp. party-Railway is not liable to pay compensation.
4. On the basis of the pleadings of both the parties, the Tribunal framed the following issues. (i) Whether on 03.11.2007 at around3.30 P.M. when the deceased Bhagiratha Lakhua was standing on the left side of the road near Chandini Chawk Dampada of Biramitrapur, the Truck bearing No.ORO-4785 driven by its driver rashly and negligently dashed against him as a result he sustained injuries and succumbed to the same (ii) Whether the petitioners are entitled to the claim compensation amount and if so from whom and to what extent? (iii) To what other relief the petitioners are entitled to?
5. Before the Tribunal, the petitioners examined two witnesses and the opp. party examined one witness. The petitioners produced seven documents which were marked as Ext.1 to 7 and the opp. party has not produced any document.
6. Learned Tribunal after taking into consideration both oral and documentary evidence adduced by the parties held that on the date of accident due to rash and negligent driving of the offending truck by its driver Mohini Nag the same dashed against the deceased who died on the spot. His age was assessed above 30 years and not exceeding 35 years. The Tribunal further held that the deceased was working as a Mason, who was a skilled worker. The monthly income of the deceased was taken as Rs.3,000/-. Applying multiplier 17 the total income of the deceased was assessed at Rs.6.12 lakhs. Deducting 1/3 rd out of the total income towards his personal expenses, amount of dependency was worked out at Rs.4,08 lakhs. In addition to that, the Tribunal awarded Rs.2,000/-, Rs.2,500/-, Rs.5,000/- and Rs.10,000/- towards funeral expenses, loss of estate, loss of consortium and towards sudhi ceremony respectively. Thus in total, the Tribunal awarded compensation of Rs.4,27,500/- to the claimants. The Tribunal further held that the driver of the offending vehicle had valid driving licence on the date of accident. Since no material was available on record to show that the offending truck of opp. party was insured with any Insurance Company, the Tribunal directed the opp. party-Railway Department to pay the amount of compensation to the claimants through the Tribunal by account payee cheque within two months from the date of receipt of a copy of the judgment, with the condition that failure on the part of the opp. Party, interest at the rate of 7% shall be paid from the date of judgment till the date of payment. The Tribunal directed to keep the awarded amount except Rs.27,500/- in the names of the claimants in fixed deposits with certain conditions. Rs.27,500/- was directed to be paid to the claimants jointly through account payee cheque. Being dissatisfied with the judgment, opp. party-railway Department filed this present appeal.
7. Learned counsel Mr.Mishra, appearing on behalf of the appellant Railway-Department submitted that the offending vehicle was registered in the name of Divisional Superintending Engineer, SouthEastern Railway, Chakradharpur but the said authority has not been impleaded as a party. Therefore, the claim petition was not maintainable for non-joinder of necessary party. Though he raised that point before the Tribunal, the Tribunal has not dealt with the same. It was further argued that no evidence relating to income of the deceased was produced before the Tribunal. Hence, the Tribunal is wrong to determine monthly income of the deceased at Rs.3,000/-. The age and income of the deceased have been determined on assumption. According to Mr.Mishra, the rash and negligent driving has not been properly proved before the Tribunal. On the other hand, the deceased was at a drunken state and all on a sudden he came under the wheel of the truck. Even though the post mortem report shows that the age of the deceased was 35 years, the learned Tribunal has wrongly taken the same as 30 to 35 years.
8. Mr. Chinchani, learned counsel appearing on behalf of the respondent-claimants submitted that the Railway-Department has never adduced any evidence before the Tribunal nor proved that the offending vehicle was registered in the name of the Divisional Superintending Engineer. PWs 1 and 2 in their evidence stated that the income of the deceased was Rs.5,000/- per month which was not controverted by cross-examination and the same should have been accepted by the Tribunal.
9. The preliminary objection raised by the appellant is with regard to the maintainability of the claim petition before the Tribunal. According to the appellant, the Divisional Superintending Engineer, South-Eastern Railway is the registered owner of the truck. Since the said authority has not been impleaded as a party, the claim petition is not maintainable. It is not in dispute that the claimant-respondents made Divisional Railway Manager, South-Eastern Railway, Chakradharpur, Chainbasa, Jharkhand as an opp. party. It is not a case of total non representation. One of the high railway authorities was impleaded. Full opportunity was afforded to the Railway to have their say and in fact the Railway contested the case before the Tribunal on merit. In view of the above, this Court is not inclined to accept the contention of the appellant that the claim petition filed by the claimants before the Tribunal is liable to be dismissed on the ground of non-joinder of necessary party.
10. The learned Tribunal considering Exts.1 to 6, the genuineness and authenticity of which is not in dispute, and also Ext.7 has rightly come to the conclusion that due to rash and negligent driving of the offending truck by its driver Mohini Nag, the same dashed against the deceased resulting his death. The Tribunal has rightly disbelieved the story of the appellant that at the time of accident the deceased was in a drunken state and all on a sudden the deceased came under the wheel of the truck. PW-1 in paragraph 5 of his evidence stated that at the relevant time the monthly income of the deceased was Rs.5,000/-. PW-2 in paragraph 3 of his statement also stated the same thing. However, OPW-1 in paragraph 7 of his evidence denied the occupation and monthly income of the deceased. The Tribunal came to the conclusion that the deceased was working as a Mason and he should be treated as a skilled worker. Taking his daily wages at Rs.100/-the Tribunal assessed his monthly income at Rs.3,000/-. This Court does not find any error in the decision of the Tribunal in determining monthly income of the petitioner at Rs.3,000/-.
11. Since it is not in dispute that as per the post mortem report-Ext.5, the deceased was 35 years at the time of accident, the Tribunal has not committed any error in applying multiplier 17 which is in conformity with the second schedule attached to the M.V. Act. Therefore, determination of compensation by the Tribunal at Rs.4,27,500/- which includes compensation towards funeral expenses, loss of estate, loss of consortium, sudhi ceremony expenses etc. is perfectly justified and warrants no interference of this Court.
12. So far as the payment of interest is concerned, the Tribunal has directed payment of interest at the rate of 7% per annum from the date of judgment till the date of payment, in the event of failure on the part of the opp. party-Railway to make the payment within two months from the date of receipt of copy of the judgment. The direction of the Tribunal does not appear to be just and proper. Section 171 of the M.V. Act provides that where any Claims Tribunal allows a claim for compensation under the M.V. Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date, but not earlier than the date of making the claim. Therefore, this Court is of the view that the opp. party-Railway Department is liable to pay interest at the rate of 7% per annum from the date of filing of the claim petition before the Tribunal till the date of payment.
13. In view of the above, the opp. party Railway-Department is directed to deposit the compensation amount of Rs.4,27,500/- along with the interest at the rate of 7% per annum from the date of filing of the claim petition before the Tribunal till the date of payment within two months from today. The Tribunal on receipt of the revised amount of compensation shall disburse the same to the claimants in the manner it has directed in its order.
14. On production of the evidence/receipt in support of deposit of the above amount of compensation along with interest before the Tribunal, the Registrar (Judicial) of this Court shall refund the statutory deposit of Rs.25,000/- along with interest accrued thereon to the opp. party-Railway Department.
15. The order of the Tribunal is modified to the extent indicated above.
16. The appeal is disposed of with the above direction.