Smt. Anita Jena and ors. Vs. Barot Chandra Pattnaik and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - as well as copy of the charge sheet in the police case. the driver and cleaner of the truck would have been the best witnesses to prove such a stand. the driver could have clearly proved as to whether the truck was moving or it had been parked with parking lighten.p.k. mishra, j.1. the claimants are the appellants against the award of the 3rd motor accidents claims tribunal, balasore, dismissing their claim application for payment of compensation on account of death caused due to accident involving the truck of respondent no. 1.2. the widow, one minor daughter and two minor sons of deceased kishore kumar jena are the claimants. it is alleged that the deceased was travelling on a scooter in the midnight of 12/13-6-1989 and was proceeding behind a truck bearing registration number o.r.s. 7536 belonging to respondent no. 1. it is alleged that the truck was moving without any light and at gopalgaon, the iruck suddenly applied brakes and the deceased could not control himself and dashed his scooter against the truck. though the deceased was taken to the hospital, he could not escape the clutches of death. it is claimed that the deceased was working as supervisor in aprivate bus association and was earning rs. 1500/- per month.3. the owner of the truck filed written statement. according to the written statement, the truck had been parked with back-light on and the scooterist came in a high speed and dashed against the truck.the insurance company also filed written statement denying the claim made in the claim petition.4. before the tribunal, the widow of the deceased was examined as p.w.i. a passer by was examined as p.w.2 and the secretary of the balasore bus assocation was examined as p.w.3. no witness was examined on behalf of any of the respondents. the tribunal did not place any reliance upon the evidence of p.w.2 regarding the cause of the accident and held that, in fact, the truck was on a standing position and the scooterist came from behind and dashed against the truck and there was no negligence on the part of the truck driver. for coming to the aforesaid conclusions, the tribunal mainly relied upon the certified copy of the f.i.r. which had been recorded at the police station on the basis of the information sent by the doctor who had treated the deceased.5. in this appeal, the learned counsel for the appellants contended that the tribunal has committed an illegality in placing reliance upon the f.i.r. as well as copy of the charge sheet in the police case. it is further contended that the evidence of p.w.2 having not been shaken in cross-examination should have been accepted. it is further contended that even assuming that the evidence of p.w.2 was not acceptable, the doctrine of ros ipsa loquitur should have been invoked and as the respondents had not examined any witness including the driveror the cleaner of the truck, adverse inference should have been drawn.the learned counsel appearing on behalf of the insurance company while supporting the award of the tribunal has contended that since the f.i.r. was marked as ext 1 on behalf of the claimants, its contents had been rightly utilised and there is no embargo for the tribunal to refer to the charge sheet which had been produced before the tribunal.6. p.w. 2 claims that he saw the accident while he was returning from the house of the ex- m.l.a. which was about 300 to 400 cubits away from the spot. his evidence reveals that at thetime of accident there was heavy rain and a truck has crossed him in high speed and a scooter was going behind the truck. he has further stated that after proceeding for some time, the truck applied sudden brake as a result of which the scooter dashed against the truck and after going to the spot he could find that the rider of the scooter was deceased kishore jena. such evidence of p.w.2 has not been shaken in any manner in the cross-examination. there is no suggestion to p.w.2 that he was not near the place of accident. the tribunal did not place any reliance upon the evidence of p.w. 2 mainly on the basis of the contents of the f.i.r. and the information of the police who submitted a final report indicating that there was no negligence on the part of the truck driver and the truck was not moving at the time of the accident. as already indicated, the f.i.r. was not lodged by any of the eye witnesses to the occurrence, but had been recorded on the basis of information sent by the doctor who had sent information to the police station regarding death of the deceased due to accident. in the f.i.r. it was indicated that three persons who had come with the deceased had said that the deceased while travelling on a scooter dashed against a standing truck. in the final form submitted by the police which had not even been marked as an exhibit before the tribunal, it was indicated similarly.the learned counsel for the appellants has rightly contended that the contents of the f.i.r. or the charge sheet could not have been taken as the basis for holding that the truck was in a standing condition and there was no negligence on the part of the truck driver. even in a criminal case where f.i.r. is considered to be the starting point of investigation, the contents of f.i.r. can be utilised ordinarily for the purpose of corroborating or contradicting the maker thereof. in the present case, the maker of the f.i.r., that is to say the doctor, or even the persons from whom the doctor is said to have derived his knowledge, had not been examined. it was not open to the tribunal to take resort to the contents of the f.i.r. even though this f.i.r. had been marked as ext. 1 on behalf of the claimants, to base its finding regarding lack of negligence on the part of the truck driver. neither the f.i.r., nor the charge sheet which had not been admitted into evidence, could have been utilised for suchpurpose. the decisions of this court reported in 1994(1) tac 413 (mataji bewa v. hemanta kumar jena and 1994(1) tac 475 (national insurance co. ltd. v. asha lata rout) which have been relied upon by the counsel for the appellants fully support the aforesaid view.7. even assuming that p.w.2 is to be disbelieved, it is a fit case where the doctrine of res ipsa loquitur is to be applied. the owner had taken the specific stand that the truck was in a stand-still condition and the scooter dashed against the truck from behind. it is also claimed by the owner that the parking light of the truck was on to indicate that it had been parked on the roadside. the driver and cleaner of the truck would have been the best witnesses to prove such a stand. the withholding of the driver and the cleaner from the witness-box by the owner without any apparent reason culls for an adverse i nferencc to be drawn against the contention raised by the owner. the driver could have clearly proved as to whether the truck was moving or it had been parked with parking lighten. when some evidence had been adduced on behalf of the claimants through the mouth of p.w.2 it was all the more necessary for the owner to rebut such evidence by examining the driver and/or the cleaner. the factum of negligence can be inferred from the non-examination of the driver and/or the cleaner of the truck. in the absence of any plausible explanation, the doctrine of res ipsa loquitur shall come into play. as such, in view of the aforesaid discussion differing from the findings of the tribunal, i hold that the accident occurred due to the negligence of the driver of the truck.8. the tribunal on assessment of the materials on recordcame to the conclusion that theclaimants should have been entitled to rs. 1,00,800/-. the said assessment based on discussion of the materials on record appears to be reasonable. accordingly, taking the said assessment to be correct, i hold that the claimants are entitled to a sum of rs. 1,00,800/-. since the claim petition had been dismissed by the tribunal and thereafter the appeal had been filed after some amount of delay, i do not consider it a fit case where any interest should be paid provided the amount is now disbursed expeditiously. accordingly, 1 direct that respondent no. 2, m/s. united india insurance co. ltd., should pay a sum of rs.1,00,800/- to the claimants within a period of two months from the date of this judgment. it is, however, made clear that if the said amount is not paid within the period now stipulated, the awarded amount shall carry interest at the rate of 10 per cent per annum from 8-3-1995, i.e. the date of admission of the miscellaneous appeal.out of the amount awarded, a sum of rs. 40,800/- is to be paid to the widow (appellant no. 1); a sum of rs. 30,000/- is to be paid to the daughter (appellant no. 2) and a sum of rs. 15,000/- each is to be paid to the two' sons (appellants 3 and 4 respectively). out of the amount of rs. 40,800/- payable to appellant no. 1, a sum of rs. 25,000/- is to be kept in fixed deposit for a period of five years with facility for withdrawal of interest and the balance amount is to be paid to her. the amount of rs. 30,000/-payable to appellant no. 2 should be kept in a cumulative fixed deposit in the name of appellant no. 2 for a period of three years, or till her marriage, whichever is earlier. similarly, out of the amount of rs. 15,000/- payable to each of appellants 3 and 4, a sum of rs. 10,000/- is to be kept in fixed deposit for a period of five years in their respective names and the balance amount is to be paid to them, or their guardians if they are still minors.9. subject to the aforesaid direction, the miscellaneous appeal is allowed. there will be no order as to costs of this appeal.