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Andhra Pradesh High Court
Judges : G.ROHINI, MOTILAL B.NAIK
Pidigala Linga Reddy - Appellant
Versus
Satla Srinivas - Respondent
Decided On : 07-31-01
Held : When a dying declaration is recorded by any Authority there shall be a certificate issued by the competent Medical authority indicating that the deceased, who made such dying declaration at the relevant point of time, was not only conscious, but was also in a fit state of mind to make such declaration and the same shall also be proved in a Court of law by examining the authority, who was present during recording of such declaration.
In this case, neither the Authority who recorded the 161 Cr. P. C. statement of the deceased, has been examined nor there is any supporting medical evidence to show that the deceased was conscious and in a fit state of mind while making such statement. In the absence of all these essential features, we are at a loss to know as to how the tribunal has accepted the statement said to have been made by the deceased to the police under Sec. 161 Cr. P. C. and used it against the beneficiaries for the purpose of denying just and reasonable compensation. We are also at a loss to notice that this award has been passed by a senior Officer in the cadre of Grade I District Judge and it is unfortunate that such a Senior Officer is so ignorant of the essential conditions for accepting a dying declaration. As indicated above, we are constrained to say that the determination of compensation by the tribunal solely relying on the 161 Cr. P. C. statement said to have been made by the deceased to the police is unwarranted and accepting the 161 Cr. P. C. statement as admission by the deceased and using the same against the claimants is unsustainable. Denying just compensation by the Tribunal to the claimants on the basis of alleged admission of the deceased under 161 Cr. P. C. statement is solely illegal. The Tribunal was only determining the compensation but was not deciding criminal case against the accused to make use of the statement as dying declaration.
By producing Exs. A-6 and A-7 the appellants have brought to the notice of the tribunal that the deceased was working as manager in a cinema theatre and earning an amount of Rs. 3,600. 00 per month. Exs. A-6 and A-7 are supported by the evidence of p. Ws. 3 and 4. Nothing contra is elicited from the cross-examination of P. Ws. 3 and 4 on behalf of the respondents to discard the evidence of P. Ws. 3 and 4. Therefore, when exs. A-6 and A-7 are available before the tribunal with the supporting evidence of p. Ws. 3 and 4, the Tribunal ought not to have discarded Exs. A-6 and A-7. Though none was examined to prove Ex. B-1 161 Cr. P. C. statement said to have been made by the deceased to the Police, the Tribunal accepted the same and determined the income of the deceased to be at Rs. 1,000. 00 per month as income from agriculture, whereas failed to take notice of Exs. A-6 and A-7, though proved by P. W. 3 and P. W. 4, which indicate that the deceased was working as a Manager in a cinema theatre. Through Ex. A-7 the appellants have proved that the deceased, at the relevant point of time, was earning rs. 3,600/- per month.
( 1 ) APPELLANTS herein, who are the claimants in O. P. No. 334 of 1991 on the file of the motor Accidents Claims Tribunal (District judge s Court), Karimnagar, assail the award dated 30-11-1993 made by the tribunal in the above O. P. , on various grounds.
( 2 ) APPELLANTS 1 and 2 are the parents and the 3rd appellant is the wife of the deceased p. Srinivasa Reddy According to the appellants on 26-12-1990 while the deceased along with T. Devendar Reddy, who is the 4th respondent in the above O. P. , were proceeding on Yamha Motor Cycle being driven by the said Devendar Reddy to siddipet, around 1. 45 p. m. when they reached the place in front of a barber shop near Alugunuru bus stage, an Ambassador car bearing No. AAR 9876 came in opposite direction with high speed and in rash and negligent manner, hit the motor cycle causing multiple injuries to the deceased srinivasa Reddy and Devendar Reddy. The deceased was initially treated in the government Headquarters Hospital at karimnagar and was shifted to Nizams institute of Medical Sciences at Hyderabad on the same day around 8. 15 p. m. On 3-1-1991 while undergoing treatment, srinivasa Reddy succumbed to the injuries sustained by him in the above accident. 2001 (6) (R)-F-24
( 3 ) THE appellants filed the above O. P. before the Tribunal below claiming a compensation of Rs. 5,00,000. 00 for the death of the deceased, who was the sole bread winner to their family.
( 4 ) THE 1st respondent, who was the driver of the vehicle involved in the accident, and the 4th respondent, who was the driver of the yamaha Motor Cycle, were set ex pane. The 2nd respondent, who is the owner of the ambassador car involved in the accident, and the 3rd respondent-Insurance Company filed separate counters denying the allegations made in the petition and contending that the accident took place due to the rash and negligent driving of the motor cycle by the 4th respondent T. Devendar reddy, along with whom the deceased was travelling as a pillion rider. Basing on the rival pleadings, the Tribunal below framed the following issues for enquiry. (1) Whether the deceased died due to rash and negligent driving of the ambassador Car bearing No. AAR 9876 by the 1st respondent or by the negligent driving of the Yamaha motor Cycle which was driven by the respondent No. 4 or due to the contributory negligence of both the drivers i. e. , respondents 1 and 4? (2) Whether the drivers of both the said vehicles (i. e. , R. 1 and R. 4) were having valid driving licenses at the time of the accident i. e. , on 26-12-1990? (3) To what compensation are the petitioners entitled to and which of the respondents are liable to pay such compensation? (4) To what relief? to substantiate their claim, the appellants-claimants examined P. Ws. l to 4 and got marked Exs. A-1 to A-8. On behalf of the respondents, none was examined, however ex. B-1 statement said to have been made by the deceased Srinivasa Reddy recorded by the Police under Section 161 Cr. P. C. was marked.
( 5 ) ON the basis of oral and documentary evidence, the Tribunal below accepted the claim of the appellants about the rash and negligent manner in which the Ambassador car bearing No. AAR 9876 was driven causing the death of the deceased. Though ex. A-6, a certificate showing that the deceased was working as manager in a cinema theatre, and Ex. A-7 salary certificate of the deceased, were filed by the appellants, the Tribunal rejected the claim made by the appellants for granting compensation on the basis of Exs. A-6 and A-7, but solely relied on Ex. B-1 alleged statement made by the deceased to the police indicating that he is an agriculturist and determined the average monthly income of the deceased at rs. 1,000/ -. While determining the monthly income of the deceased at Rs. 1,000. 00, the tribunal applied multiplier 16. 51 and came to the conclusion that after deducting one third from the income of the deceased towards personal expenses, the loss of
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