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1995 DIGILAW 1032 (RAJ)

Banarsi Devi v. Haryana Roadways

1995-11-24

RAJENDRA SAXENA

body1995
Judgment Rajendra Saxena, J.-This appeal has been preferred against the award dated 5.1988 given by the learned Member, Motor Accidents Claims Tribunal, Jaipur, (in short ‘MACT’) for the enhancement of the quantum of compensation. 2. Briefly, therelevant facts are that on 7.1984 at about 7.15 a.m. deceased Brij Mohan Sharma, aged 41 years, was going on cycle from his brother’s house situated in Govindnagar, Jaipur, towards Police Lines, Jaipur. When he reached in front of Kapoor Carpet Factory, Amer Road, bus No. HYR 3504, which was being driven by respondent Han Singh and was owned by Haryana Roadways came from Jaipur city with high speed, went on its wrong side and dashed on Brij Mohan’s cycle causing him severe injuries with the result that he died instantaneously. It is alleged that respondent Han Singh was driving the said bus negligently and carelessly and that after running over the deceased, it also dashed with an electric lamp post, which was damaged. Dharmpal, AW 3, who had witnessed the said accident, reported the matter to the police through a written report, Exh. 1, whereupon Crime No. 79/84 was registered at the police station, Brahmpuri, Jaipur and after investigation a challan, Exh. 4, was filed against Han Singh, the driver of the said bus. 3. Deceased Brij Mohan was a police constable posted in Reserve Police Lines, Jaipur. On 29.1984 his widow appellant, Banarsi Devi, aged 36 years, two minor sons Girraj Prasad aged 17 years and 6 months and Suresh Chandra aged 4 years, two minor daughters Manju and Anu aged 9 and 7 years respectively and his parents, namely, Mangilal Sharma and Rukmani Devi aged 65 and 60 respectively submitted a claim petition under Section 110-A, Motor Vehicles Act, before the MACT for compensation to the tune of Rs. 3,25,000. Respondents filed a joint reply admitting the factum of accident but asserted that accident had taken place due to carelessness and negligence of the deceased and that the said bus was not being driven with high speed, rashly or negligently. .4. The learned MACT framed the following issues: .(i) Whether on 7.1984 driver of bus No. HYR 3504 while driving the said vehicle with high speed, carelessly and negligently caused the accident wherein Brij Mohan sustained injuries and died? .4. The learned MACT framed the following issues: .(i) Whether on 7.1984 driver of bus No. HYR 3504 while driving the said vehicle with high speed, carelessly and negligently caused the accident wherein Brij Mohan sustained injuries and died? .(ii) Whether the driver of bus at the time of the accident was working in the employment of the owner of the said vehicle? .(iii) Whether the claimants/petitioners were entitled to get compensation in the manner detailed in the claim petition and if so, to what extent? .(iv) Whether the accident had occurred due to the contributory negligence of the deceased, if so, its effect? .(v) Relief ? 5. Appellant Banarsi Devi examined herself as AW 1 and produced Harish Chandra S.I., AW 2; Dharmpal, AW 3; and Ram Karan, AW 4; and filed the documents Exh. 1 and Exh. 2. However, respondents did not adduce any oral or documentary evidence in rebuttal. 6. Thelearned MACT after scanning the evidence held that the said accident had occurred due to the rash and negligent act of the driver of the bus and that the deceased was not at all liable for any contributory negligence and accordingly-decided issue Nos. 1 and 4 against the respondents. The Tribunal further held that at the time of the accident the driver of the offending bus was working under the employment of respondent Nos. 1 and 2 and decided issue No. 2 against them. The learned Tribunal further held that the age of deceased Brij Mohan at the time of accident was 42 years, that on the day of accident his salary as a police constable was Rs. 909/-per month and that the loss of dependency to his family was Rs. 600 per month. The learned Tribunal also held that had the deceased been alive he would have superannuated at the age of 58 years and adopted a multiplier of 16 and assessed Rs. 1,15,200/-as compensation for the loss of income to his dependants. The Tribunal also allowed compensation amounting to Rs. 5,000/-to the widow Banarsi Devi for loss of consortium and compensation for loss of affection and company at the rate of Rs. 2,000/-to each of the six other appellants. The Tribunal after deducting the amount of Rs. 15,000, which was earlier paid to appellants under Section 92-A of the Act passed an award of Rs. 5,000/-to the widow Banarsi Devi for loss of consortium and compensation for loss of affection and company at the rate of Rs. 2,000/-to each of the six other appellants. The Tribunal after deducting the amount of Rs. 15,000, which was earlier paid to appellants under Section 92-A of the Act passed an award of Rs. 1,17,200/-against the respondents with interest at the rate of 10 per cent per annum from the date of filing the claim petition, i.e., 10.1984, the Tribunal ordered that if the award amount was not paid within two months then interest at the rate of 12 per cent per annum shall be payable and also gave detailed directions for disbursement and investment of the award amount. Hence this appeal. 7. None appears on behalf of the respondent Nos. 1 and 2 despite sufficient service. The name of respondent No. 3, Han Singh driver, was deleted at the request of the appellant. 8. I have heard Mr. Sandeep Mathur, the learned Counsel for the appellants and carefully perused the record of the Tribunal in extenso. 9. Mr. Sandeep Mathur has vigorously canvassed that the learned Tribunal has committed an error in not taking into consideration the prospect of advancement of future career of the deceased, who had a stable job as a police constable. He has submitted that the amount of compensation for loss of consortium to appellant Banarsi Devi is also much less than the conventional amount, which should be at least Rs. 16,000/-and that the compensation for the loss of affection and society of the deceased and his dependants at the rate of Rs. 2,000/-is very low, which needs to be suitably enhanced. He has asserted that the rate of interest at the rate of 10 per cent per annum awarded by the learned Tribunal is also not just and in consonance with the principle propounded by the Apex Court in this behalf , which should be at least 12 per cent per annum. 10. I havegiven my anxious and thoughtful consideration on the submissions made before me. Dharmpal, AW 3, who is the eyewitness of the accident deposed that on the ill-fated day at about 7.30 a.m. when he was going to the office of the co-operative society situated in front of the carpet factory, he saw a Haryana Roadways bus coming from Jaipur side with a speed of about 90-100 km. Dharmpal, AW 3, who is the eyewitness of the accident deposed that on the ill-fated day at about 7.30 a.m. when he was going to the office of the co-operative society situated in front of the carpet factory, he saw a Haryana Roadways bus coming from Jaipur side with a speed of about 90-100 km. per hour, that the said bus went on its wrong side and dashed a cyclist, who fell down and was run over by the said bus and after colliding with an electric pole it fell down in a nalla (drain). He stated that at that time there was no other vehicle on the road and that the said accident had occurred due to the carelessness and negligent act of the bus driver. He further stated that the cyclist, who had received multiple severe injuries, died on the spot and that he had submitted a written report, Exh. 1, to the Police Sub-Inspector. He also proved his signatures on the site plan prepared by the police. Nothing substantial was elicited in his cross-examination and his testimony remained unshattered. 11. Harish Chandra Sharma, Police Sub-Inspector, AW 2, has proved written report, Exh. 1, autopsy report Exh. 2, the mechanical inspection report of the offending bus, Exh. 3, site plan, Exh. 5, notice issued under Section 88 of the Motor Vehicles Act, Exh. 6 and its reply, Exh. 7, as also the challan filed by the police against Han Singh, respondent. The testimony of Dharmpal finds sufficient corroboration from testimony of Harish Chandra and the contents of documents, Exhs 1 to 7. From a careful perusal of the mechanical inspection report, Exh. 3, as also the site plan, Exh. 5, it stands amply proved that bus No. HYR 3504 which was being driven by Han Singh, after going on its wrong side and covering almost the major part of the road had dashed and run over the deceased Brij Mohan, who was going on a cycle, from the front side and thereafter it collided with an electric pole installed on the extreme right side of the road. Thus, from the oral and documentary evidence adduced in this case it has been fairly established that Han Singh was driving the said vehicle with a high speed and by his careless and negligent act the said accident took place resulting in the death of Brij Mohan, who was not at all responsible for any negligent act. The learned Tribunal has, therefore, rightly decided issue Nos. 1, 2 and 4 in favour of the appellant and against the respondents. 12. In re: quantum of compensation Ram Saran, AW 4, Junior Accountant of S.P. Office, Jaipur city, proved the salary certificate, Exh. 9, of the deceased Brij Mohan, a perusal whereof indicates that on 7.1984 total monthly salary of the deceased was Rs. 909.05 and that his date of birth was 20.5.1942. This witness has deposed that Brij Mohan was posted as a constable and that had he been alive, due to Revised Pay Scales, his pay on 6.4.1989, i.e., on the date when this witness was examined by the learned Tribunal, would have been Rs. 1,500/-per month. He also stated that Brij Mohan would have superannuated on 3 5.2000 and that keeping in view his seniority and qualifications he would have retired as a Police Sub-Inspector, in normal course. He further stated that had Brij Mohan appeared in the departmental/competitive examination, he could have been promoted to the post of Dy. S.P. This witness has not been cross-examined at all by the respondent and as such there is no valid reason to disbelieve his sworn testimony. 13. BanarsiDevi, AW 1, is the widow of the deceased. She deposed that besides her, the deceased left two minor sons, two minor daughters and his old parents. She stated that her father-in-law Mangilal had retired as a peon from a school, that her husband used to earn Rs. 1,000/-per month, which he used to give her and that he used to spend about Rs. 10-20/-per month only on himself She deposed that the deceased possessed good health and was not a victim of any vice and that all her sons and daughters are unmarried. There is not a fringe of evidence in rebuttal. 14. In General Manager, Kerala State Road Trans. 10-20/-per month only on himself She deposed that the deceased possessed good health and was not a victim of any vice and that all her sons and daughters are unmarried. There is not a fringe of evidence in rebuttal. 14. In General Manager, Kerala State Road Trans. Corporation vs. Susamma Thomas 1994 ACJ 1 (SC), the Apex Court has held that the multiplier method is the accepted method of ensuring a just’ compensation which will make for uniformity and certainty of the award and that departure from this can only be justified in rare and extraordinary circumstances and in very exceptional cases. In that case deceased aged 39 years was drawing Rs. 1,032/-per month on the date of fatal accident. The claimants were his widow, children and parents. The Tribunal awarded Rs. 58,760. The High Court awarded Rs. 1,80,000/-for loss of dependency and Rs. 50000/-under the head loss of future earnings plus special damages for funeral expenses, hospital treatment expenses, etc. and enhanced the award to Rs. 2,64,000/-. Apex Court having regard to the prospects of advancement in the future career of the deceased with more or less stable job, estimated the gross income of the deceased at Rs. 2,000/-per month and loss of dependency at Rs. 1,400/-per month, adopted multiplier of 12 and assessed Rs. 2,04,000 as loss of dependency, allowed Rs. 15,000 each for loss of consortium and loss to estate and disallowed compensation for future earnings on the proposals of future employment in USA and reduced the award from Rs. 2,64,000/-to Rs. 2,25,000. 15. Now adverting to the facts of the case on hand, deceased Brij Mohan was about 42 years of age on the date of accident. He was in the pay scale of Rs. 400/-to Rs. 700/-and as per salary certificate, Exh. 9, his basic pay was Rs. 530/-per month and his total emoluments were Rs. 909.05 per month. The pay scales of the employees of Rajasthan State Government, including the police constables, have been revised and now higher grades are being given to them. Brij Mohan was in regular Government service and he was entitled for annual grade increments, fixation in the revised pay scale and future promotions as Head Constable and Police Sub-Inspector. He was to retire after 16 years in the year 2000 AD. As a police constable he used to put on the uniform. Brij Mohan was in regular Government service and he was entitled for annual grade increments, fixation in the revised pay scale and future promotions as Head Constable and Police Sub-Inspector. He was to retire after 16 years in the year 2000 AD. As a police constable he used to put on the uniform. As per statement of Banarsi Devi, he was not addicted to any vice and that he used to spend only Rs. 10-20/-per month on himself Keeping in view all the relevant facts, I feel that the total loss of income to his dependants was positively not less than Rs. 675/-per month. Hence it would be just, proper and reasonable to assess the loss of income to his dependants at the rate of Rs. 675/-per month. The learned Tribunal has adopted a multiplier of 16, but keeping in view the remaining length of his service and having regard to prospects of advancement in his future career, the estimated loss of income to his dependants can be safely computed at Rs. 1,350 per month or Rs. 16,200/-per annum. Having regard to the age of the deceased, ages of his dependants including his 4 minor sons and minor daughters, this loss of dependency per year should be capitalised on a multiplier of 12 only. Thus, in this case, the compensation under the head loss of dependency works out to Rs. 1,350 x 12 x 12 = Rs. 1,94,400/-. 16. It will also be just and proper to grant compensation of Rs. 10,000/-for loss of consortium to Banarsi Devi, the widow of the deceased and compensation at the rate of Rs. 2,000/-each for loss of affection and company to his minor sons and daughters and aged parents. Thus the total amount of compensation works out to Rs. 1,94,000/-+ 10,000/-+ 12,000/-= Rs. 2,16,000/-. From this an amount of Rs. 15,000/-already paid to appellants under Section 92-A of the Act has to be deducted. 17. Thelearned Tribunal has allowed interest on the award amount at the rate of 10 per cent only, which is apparently low and not in consonance with the principle propounded by the Apex Court in Chameli Wati vs. Delhi Municipal Corporation 1985 ACJ 645 (SC). Therefore, it will be just and proper to allow interest at the rate of 12 per cent per annum from the date of filing the claim petition. 18. Therefore, it will be just and proper to allow interest at the rate of 12 per cent per annum from the date of filing the claim petition. 18. The net result of this discussion is that this appeal is allowed and the award dated 5.1989 passed by the learned MAC T, Jaipur City, is modified to the extent that compensation under the head for loss of dependency is enhanced to Rs. 1,94,000/-from Rs. 1,15,000/-, compensation for loss of consortium to the appellant Banarsi Devi is also raised to Rs. 10,000/-from Rs. 5,000/-. The appellant shall also be entitled to get interest at the rate of 12 per cent per annum from the date of filing the claim petition till realisation. The enhanced amount of award under head loss of dependency shall also be invested in the fixed deposit in any nationalised bank proportionately in the manner enumerated in the award passed by the Tribunal. No order as to costs. Decree be drawn accordingly.