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Rajasthan High Court · body

1987 DIGILAW 908 (RAJ)

Phooli Devi v. Inderjeet Singh

1987-12-07

I.S.ISRANI

body1987
JUDGMENT 1. - This appeal under section 110-D of the Motor Vehicles Act, 1939 (herein- after referred to as 'the Act'), is against the award dated 29.1.1986, passed by Motor Accidents Claims Tribunal, in case No. 60 of 1982, by which the appellants were awarded amount of Rs. 1,06,100/- as compensation. However, Rs. 53,050/- were deducted on account of contributory negligence of the deceased Ramswaroop. 2. In brief the facts of the case are that on 22.1.1982, at about 11.00 p.m. deceased Ramswaroop was coming on cycle from National Ball Bearing Company, and was going towards Sodala/Civil Lines, on his right side, a truck bearing No. DEG 444 was coming from the side of Civil Lines/Sodala Road and dragged the deceased at the crossing of Ajmer Road Bridge. Respondent No. 2, Dhanni Ram, driver of the truck, in his written statement pleaded that the cyclist was cross- ing the main road but did not care to see the truck and came all of a sudden under the truck. The insurance company pleaded that its liability was restricted to the extent of Rs. 50,000/- only. The deceased, who was aged 26 years, lost his life on account of this accident. The Tribunal after hearing both the sides came to the conclusion that the accident had taken place on account of rash and negligent driving of the driver of truck, respondent No. 2, but also held the deceased to be liable for contributory negligence. On basis of evidence, it was held by the Tribunal that the deceased, who was an employee in National Ball Bearing Company, was drawing a salary of Rs. 750/- p.m., had a wife, two children and mother. An amount of Rs. 350/- was deducted on account of personal expenses and dependency was fixed at Rs. 400/-. While applying multiplier of 20 years, amount of Rs. 96.000/- was awarded under this head. However, since the Tribunal held that the deceased was also responsible for the accident, therefore, 50% amount was deducted under this head and net amount of Rs. 48,000/- was awarded as compensation to the claimants under this head. Apart from this the Tribunal awarded Rs. 2,500/- to each of the claimants, on account of mental agony and loss of consortium. Thus the total amount came to Rs. 1,06.100/-. 3. The contention of Mr. 48,000/- was awarded as compensation to the claimants under this head. Apart from this the Tribunal awarded Rs. 2,500/- to each of the claimants, on account of mental agony and loss of consortium. Thus the total amount came to Rs. 1,06.100/-. 3. The contention of Mr. H.M. Bhargava, learned counsel for the appellant, is that the Tribunal has held the deceased to be responsible for contributory negligence, even though there is no evidence whatsoever on the record. It is, therefore, contended that the Tribunal has seriously erred in holding the deceased to be responsible for contributory negligence, which has been assessed at 50% of the amount awarded under the head of pecuniary compensation. The next contention of the learned counsel is that the amount of Rs. 350/- deducted for the personal expenses is also on high side. A person who earns Rs. 750/- p.m. and has to maintain his wife, two children and his mother is not expected to spend this much amount from the meagre salary that he was drawing. His contention is that the amount of Rs. 350/- is little less than 50% of the income which he cannot be expected to be spending upon himself. His contention is that maximum amount that can he deducted on personal expenses, keeping in view the size of the family, should not be more than ⅓rd of the salary drawn by the deceased. The third contention of learned counsel is that the deceased was only 26 years old and the multiplier of 20 applied by the Tribunal is on extremely low side. Usually expected span of life in India is now taken at seventy years and it is, therefore, pleaded that the span of life in this case should also be placed at seventy years and accordingly the multiplier should be increased to 44 years, instead of 20, applied by the Tribunal. It is further contended that the Tribunal has awarded for loss of consortium a very meagre amount of Rs. 2,500/- to a young widow, aged 22 years, which deserves to be increased to Rs. 20,000/- as her life changed suddenly on account of this sad accident. It is further contended that the Tribunal has erred in holding that the liability of insurance company is restricted to Rs. 2,500/- to a young widow, aged 22 years, which deserves to be increased to Rs. 20,000/- as her life changed suddenly on account of this sad accident. It is further contended that the Tribunal has erred in holding that the liability of insurance company is restricted to Rs. 50,000/- in view of the policy which shows that additional amount of premium was paid for wider coverage and, therefore, the insurance company is liable to pay whatever compensation is awarded to the claimants. 4. Mr. S.C. Srivastava, learned counsel appearing on behalf of insurance company, frankly admitted that due to payment of additional premium, the liability of the insurance company is unlimited. It was con- tended by Mr. M.R. Singhvi, appearing on behalf of respondent No. I owner, that the Tribunal has rightly held the deceased to he responsible for contributory negligence. The accident took place at about 11.00 p.m. and the truck was coming with full lights on, which was enough indication to the deceased that a truck was coming towards crossing and he should have been careful also. He further referred to regulations 6 and 7 of the Act to stress the point that the deceased cyclist was also responsible to observe the rules as laid down in the regulations. It is further contended that the award calls for no interference and the amount awarded to the appellant is justified on all counts. 5. I have heard the learned counsel for the parties, gone through the award and also the evidence and other documents on record. AW I Mahmood lqbal is driver of auto-rickshaw, who was the eye-witness of the incident while he was coming from Ajmer road side from the over-bridge and proceeding towards Sodala Police Station side of the same road. He has stated in his statement that the truck was coming at a very high speed and was driven negligently and rashly by the driver of the truck. He further states that the deceased cyclist had crossed the middle of the crossing, at the point of over-bridge of Ajmer road when the truck came and dragged him. The truck dashed with such a force that it dragged the deceased for a distance of about 15' before it stopped. He also states that the truck driver did not blow any horn before coming towards the crossing. The truck dashed with such a force that it dragged the deceased for a distance of about 15' before it stopped. He also states that the truck driver did not blow any horn before coming towards the crossing. AW 2 Narendra Kumar is the Investigating Officer, who has stated that as per the site plan, the accident took place at place marked 'A', which is quite near to the dividing line of the over-bridge and 'B' is 2 away from the place marked 'A' where the cycle was found, that 'C' is place where pool of blood was found which is 25' away from the place marked 'A'. This clearly shows that the truck had dragged the deceased nearly to a distance of 25' before it came to stop while climbing the over-bridge. NAW 1 Dhanni Ram, who is driver of the truck, has deposed that he was driving the truck at a speed of 20-25 km. per hour and he had given dipper before entering the crossing. The truck, according to him, stopped at a distance of about 5-10 steps, after the accident took place. Even though there is no evidence on record to show that the deceased cyclist was also responsible for contributory negligence, the trial court has concluded from the evidence discussed above that merely because the cyclist was also cross- ing the road, he was also responsible for contributory negligence. No evidence what- soever has been produced on behalf of respondents to show that the cyclist was rash or negligent in driving his cycle. Apart from that AW 1. the driver of the auto-rickshaw, is an independent witness, who was coming from Ajmer road and proceeding from the over-bridge to Sodala Police Station side of the same road, has deposed that the truck was coming at a very fast speed and was driven rashly and negligently. He has also deposed that the cyclist had crossed the intersection near the Ajmer road over-bridge and the truck driver did not care even to blow horn before the accident took place. 6. Tenth Schedule of the Act lays down regulations regarding driving. He has also deposed that the cyclist had crossed the intersection near the Ajmer road over-bridge and the truck driver did not care even to blow horn before the accident took place. 6. Tenth Schedule of the Act lays down regulations regarding driving. Regulation 6 lays down: "The driver of a motor vehicle shall slow down when approaching a road inter- section, a road junction or a road corner, and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safety of persons thereon." Regulation 7 lays down: "The driver of a motor vehicle shall, on entering a road intersection, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand." 7. Regulation 6, therefore, clearly shows that before a driver of a motor vehicle approaches any intersection, he shall not enter such intersection unit he has become aware that he may do so without endangering the safety of persons who may he using the road at the same time. 8. Regulation 7 is regarding the driver of a motor vehicle, who may while entering a road intersection enters a main road and a duty has been cast upon him to give way to all traffic approaching the intersection on his right hand before he enters the intersection himself. Evidently the regulations laid down in Tenth Schedule are meant for such persons who drive vehicles as is evident from the heading of the regulations 'Driving Regulations'. It is clear that these regulations apply only to such persons who drive motor vehicles but not to those who are driving a vehicle like cycle etc. By this it does not mean that the person on cycle should not take care while entering intersection of the road but it is evident that these regulations are not applicable to such persons. By this it does not mean that the person on cycle should not take care while entering intersection of the road but it is evident that these regulations are not applicable to such persons. It is clear that it was duty of the driver of the truck to have not only slowed down his speed but before crossing intersection he should have seen and become aware that he will not be endangering life of a person who maybe using the road at the same time and the evidence of PW I shows that the driver did not do any of such things. He was driving his truck at fast speed, did not even blow horn and proceeded to cross the inter- section of the road. Merely because the headlights of the truck were on. it does not mean that the driver of the truck has no further duty to observe the regulations laid down in the Act. I. therefore, do not find any evidence to come to the conclusion that the cyclist was responsible for contributory negligence while crossing the intersection of the road. 9. So far as the point of dependency is concerned, it is common ground that the deceased was drawing salary of Rs. 750/- p.m. and had to support his wife, two children and mother. A person, who draws such small salary, cannot he expected to spend upon himself alone nearly 50% of his salary as is held by the Tribunal. Reliance has been placed on Jyotsna Dey v. State of Assam. 1987 ACJ 172 (SC) . In this case their Lordships of the apex court kept the amount of dependency at Rs. 250/- p.m. when the deceased was earning Rs. 400/- p.m. 10. In the case of Mandip Kaur v. Ram lal, 1985 ACJ 570 (P&H) , the Punjab and Haryana High Court, in a case where the deceased was earning Rs. 755/- p.m., kept the dependency at Rs. 500/- p.m. when the widow of the deceased was the only dependent of the deceased person. 11. In the case of Santosh Kanwar v. On Prakash, 1986 ACJ 799 (Rajasthan) , this court held the amount of Rs. 600/- to be dependency when the deceased was earning Rs. 800/- p.m. and had wife. children and two parents to look alter. 12. 11. In the case of Santosh Kanwar v. On Prakash, 1986 ACJ 799 (Rajasthan) , this court held the amount of Rs. 600/- to be dependency when the deceased was earning Rs. 800/- p.m. and had wife. children and two parents to look alter. 12. In the case of Mohanlal v. Shanti Det,i, 1985 ACJ 205 (Rajasthan) , this court allowed the amount of Rs. 211/- as dependency when the deceased, a teacher, was drawing salary of Rs. 336/- p.m. on whom widow and his children depended. Such decisions can he multiplied endlessly but the ratio seems that usually the courts held that '/3rd may be deducted towards the personal expenses of the deceased and tried to he taken to he the amount of dependency. 1, therefore, hold that out of total salary of Rs. 750/- the deceased was spending on himself amount of Rs. 250/- and the dependency amount comes to be Rs. 500/- p.m. The next contention of the learned counsel is that the Tribunal has erred in applying multiplier of 20 years only even though the deceased was a young man of 26 years. His contention that the span of lite in this case may he taken as 70 years will he rather too high in a case in which the person was serving as he is expected to serve and earn around the age of 58 years only. In the facts and circumstances, I am, therefore, of the opinion that it will he fair and just to keep the span of life at 60 years. Therefore, the multiplier in this case to be applied should be 34 years. The claimants are, therefore, entitled to receive 500 X 12 X 34 which comes to Rs. 2,04,000/-, as compensation under this head. 13. Coming to the point of consortium the amount awarded by the Tribunal is only Rs. 2,500/- which seems to be rather low, keeping in view the age of the widow which is only 22 years. Such unfortunate accidents plunge the widow in sudden darkness. The complexion of her life changes completely. I n Hindu society remarriage of a widow is still treated to he a taboo. In the facts and circumstances of the case, 1. therefore, award Rs. 15,000/- as loss of consortium. Such unfortunate accidents plunge the widow in sudden darkness. The complexion of her life changes completely. I n Hindu society remarriage of a widow is still treated to he a taboo. In the facts and circumstances of the case, 1. therefore, award Rs. 15,000/- as loss of consortium. It is made clear that the claimants shall be entitled to the interest at the rate of 12 per cent per annum on the enhanced amount awarded to the appellants from the date of claim petition filed in the lower court. Thus the appellants shall he entitled to receive Rs. 1,66,000/- more in addition to the amount awarded by the Tribunal. 14. The appeal is allowed with no order as to costs.Appeal allowed. *******