HIMACHAL ROAD TRANSPORT CORPN. v. GARATU — 1992 DIGILAW 10 (HP)

JUDGMENT Lokeshwar Singh Panta, J. (Oral) 1. The above appeal is directed against the Award dated 18-5-1992 passed by the Motor Accident Claims Tribunal (I), Shimla in M.A.C. No. 34-S/2 of 1988 whereunder a sum of Rs. 1,37,780.00 cam to be awarded in favour of the claimant Garatu, respondent herein for the death of his son Puran Chand who died in the accident taken place on 12-5-1986 at Kotkhai in which bus No. HPS-4390 belonging to the appellant-corporation and being driven by respondent Karam Singh met with an accident. 2. Briefly stated, the facts of the case are that bus No. HPS-4390 belonging to the appellant Corporation was involved in an accident at Kotkhai on 12-5-1986 which was being driven by respondent No. 2 herein and respondent No. 3 was conductor. The claimant and his second son Sohan Lal also boarded the bus at the relevant data at a place known as Nautipal. The cause of the accident as stated by the claimants who were initially two in number before the Tribunal below was that the bus was being driven by its driver in a rash and negligent manner when Puran Chand was loading his luggage on the roof of the bus involved in the accident and the conductor without taking due care had given signal to the driver to start the bus and thereby Puran Chand who was on the roof of the bus fell down and received multiple injuries, Puran Chand remained in hospital in coma for 21 days and ultimately died due to injuries suffered by him in the accident. During the pendency of the claim petition filed by both parents of the deceased, the mother of Puran Chand also expired and claim petition was prosecuted by the father of the deceased Puran Chand. In the claim petition, a claim of Rs. 2 lacs on account of the death of Puran Chand was made. 3. Written statement on behalf of the appellant Corporation was filed by its Additional General Manager in which various objections were raised inter alia stating that the claimants had compromised the claim and they were paid Rs. 30,000/- under ex-gratia and another sum of Rs. 15,000/-under no fault liability. Affidavits were said to have been filed by the appellant-Corporation and both the parents of the deceased before the Tribunal below. In the face of the said compromise, the claim petition was dismissed. 30,000/- under ex-gratia and another sum of Rs. 15,000/-under no fault liability. Affidavits were said to have been filed by the appellant-Corporation and both the parents of the deceased before the Tribunal below. In the face of the said compromise, the claim petition was dismissed. On merits it was stated that the deceased was not a passenger travelling in the ill fated bus as he was travelling on the roof of the bus without the knowledge of the driver and conductor, therefore, the deceased had not died due to rash and negligent driving of the bus by the employee of the appellant-corporation and in the facts and circumstances of the present case, the appellant Corporation was not liable to pay the amount of compensation. 4. On the controversial pleadings of the parties, the Tribunal framed the issues which we need not reproduce again for burdening the judgment. 5. The parties went to trial and led oral and documentary evidence. The Tribunal below on appreciation of the evidence came to the conclusion j that the accident had occurred due to rash and negligent driving of the vehicle by its driver and consequently total amount of Rs. 1,70,780/- as compensation was awarded in favour of the sole claimant Garatu father of the deceased under various heads. Feeling aggrieved and dis-satisfied against the award of the learned Tribunal below, appellant corporation has filed the present appeal challenging the award of Tribunal below on various grounds. 6. We have heard the learned counsel for the appellant-corporation, Mr. Deepak Gupta and Mr. D.K. Sharma, learned counsel for the claimant-respondent. On the question of rash and negligent driving of the vehicle, we find that the Tribunal below has rightly held that the accident had occurred due to rash and negligent driving of the vehicle by the driver as the evidence of the claimant and his second son who were travelling in the bus on the date of the accident is cogent and convincing to hold that Puran Chand was on the roof of the bus for purpose of loading of his luggage and in that process the conductor without taking due care signalled to the driver to start the bus and consequently Puran Chand fell down from the roof of the ill-fated bus and sustained multiple injuries. He was taken to the I.G.M.C. in a coma where he remained in the same condition for 21 days and thereafter succumbed to the injuries. We do not find any substance in the submissions of the learned counsel for the appellant-Corporation that accident had not occurred because of the rash and negligent act on the part of its employees. 7. The next submission of the learned counsel for the appellant-Corporation was that the income of the deceased before the death has been assessed at Rs. 800/- p.m. by the Tribunal below as he was working as Mali with one Het Ram who appeared as PW-2 and categorically stated that the deceased was being paid Rs. 800/- p.m. by him besides food etc. The only surviving dependent in the present case is the father of the deceased and other members are either adult brothers or adult sisters of the deceased whereas the mother of the deceased also died during the pendency of the claim petition. The Tribunal assessed the monthly dependency of the claimant at Rs. 500/- and multiplier of 16 was used, thereby the total amount of compensation on account of loss of dependency has been awarded to the tune of Rs. 96,000/-. The age of the deceased at the time of his death was said to be 19 years whereas there is controversy about the age of the claimant. In his deposition before the Tribunal below in the year 1989 the claimant stated his age 60 years and thereafter when he filed one application for condonation of delay in filing the claim petition the age of the claimant was stated to be 50 years and again in the year 1996 an application was moved before this Court in this appeal for the release of the amount alongwith affidavit of the claimant indicating his age 50 years. We would like to accept the version of the claimant when he appeared as his own witness before the Tribunal below that at the time of recording of his statement by the Tribunal, his age was 60 years. Looking to the age of the claimant and the deceased for determining the amount of compensation by applying the multiplier method, we find that the multiplier of 16 used by the Tribunal below is definitely on the higher side. The dependency of the claimant as determined by the Tribunal cannot be said to be Rs. Looking to the age of the claimant and the deceased for determining the amount of compensation by applying the multiplier method, we find that the multiplier of 16 used by the Tribunal below is definitely on the higher side. The dependency of the claimant as determined by the Tribunal cannot be said to be Rs. 500/- P.M. out of the total income of the deceased which he earned before his death amounting to Rs. 800/-. We take monthly dependency of the father of the deceased at Rs. 400/- p.m. and after applying the multiplier of 10 in the present case, the total dependency of the deceased for the loss of his son works out to Rs. 48,000/-. The Tribunal below has awarded Rs. 30,000/- on account of loss of living being which in our view is grossly out of consideration. The mother of the deceased died during the pendency of the claim petition, but there is no evidence on record to prove that she died because of shock received by her on account of the death of her son Puran Chand as noticed by the Tribunal below in para 22 of the Award. The accident occurred on 12-5-1986 and the claim petition was decided on 18-5-1992, between this period there is not an iota of evidence to prove as to when mother of the deceased Smt. Darshnu died and what was the cause of her death. In view of the facts and circumstances of the present case, we are not inclined to accept the reasonings of the Tribunal below awarding a sum of Rs. 30,000/- on account of loss of living being of the family and to this extent the award of the Tribunal below deserves to be set aside. So far the amount of compensation awarded under the various other heads is concerned, we find that the Tribunal has rightly awarded the said sum in favour of the claimant. However, we make an award of Rs. 3220/- to the claimant on account of conventional amount. After considering the entire evidence on record and the submissions of the learned counsel for the parties, we are of the opinion that the claimant is entitled to total sum of Rs. 65000/- for the death of his son and the amount is divided under the following heads : 1. Loss of dependency to the claimant. 48000.00 2. Conventional amount 5220.00 3. 65000/- for the death of his son and the amount is divided under the following heads : 1. Loss of dependency to the claimant. 48000.00 2. Conventional amount 5220.00 3. Expenses on medicines 8780.00 4. Expenses on post death ceremonies 2000.00 5. Litigation cost 1000,00 Total Rs.65000.00 8 Out of the total compensation of Rs. 65000/- an amount of Rs. 15000/ - paid by the appellant-Corporation under Section 92 of the Motor Vehicle Act has to be compulsorily deducted in view of Section 30(D) of the Act. 9. Shri D.K. Sharma, learned counsel for the claimant-respondent contended that the Tribunal has rightly assessed the amount of compensation based upon the proper appreciation of the evidence and no ground is made out by the appellant-Corporation for reducing the compensation amount. We are afraid that we cannot accept this contention of the learned counsel for reasons stated in the earlier part of the judgment as amount of compensation awarded by the Tribunal below is grossly excessive in the face of the age of the father who is the claimant and is now aged about 70 years. However, the claimant-respondent is entitled to interest at the rate of 12% p.a. on the total amount of Rs. 50,000/- from the date of the institution of the claim petition i.e. 19-5-1988 till the date of the payment or deposit of said amount by the appellant-corporation. 10. We find from the proceedings of this court that an amount of Rs. 50,000/- out of the deposited amount of Rs. 1,22,780/- was ordered to be paid to the claimant on his application being CMP No. 10 of 1997 and the said amount appears to have been released to him as we find from the statement of the Registry that only an amount of Rs. 87,780/- is lying in deposit. The claimant would be entitled to 12% interest from the date of the claim petition till the date of payment, as stated above in modification of the award passed by the Tribunal below. We find that the claimant-respondent father has been allowed release of certain amounts as permitted in the interim order passed by this Court during the pendency of this appeal. We find that the claimant-respondent father has been allowed release of certain amounts as permitted in the interim order passed by this Court during the pendency of this appeal. The amount now awarded by us would be adjusted against all amounts or sums paid to him including those ordered to be released as interim relief and if there is any over payments to the claimant, he shall restore the excess to the appellant and the appellant shall be entitled to take such action/steps as are permissible in law to recover the amount so paid in excess. The balance of amount lying invested from out of out of the amount deposited by the appellant shall be released to the appellant after deducting any sum, if any, which become payable as per this order in the appeal. 11. Consequently, the appeal is allowed in part and the award of the Tribunal below is modified to the extent above. Parties are left to bear their own costs.