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Rajasthan High Court · body

1996 DIGILAW 1046 (RAJ)

Ganga v. Dhulji

1996-09-12

P.C.JAIN

body1996
Honble JAIN, J.–The claimant appellants have filed this appeal u/s. 173 of the Motor Vehicles Act, 1988 (for short `the Act) against the `Award dated 21.3.1991 passed by the learned Motor Accidents Claims Tribunal, Banswara in MACT Case No. 98 of 1988, whereby, the learned Tribunal made the Award of Rs. 1,51,000/- in favour of the claimant appellants. (2). The accident in question occurred on 17.5.1988 at 11.40 a.m. near Lodha Nahar Bridge on Banswara-Doongarpur road. Ranjeet singh was proceeding from Banswara to his Village Jolana on a scooter and Ameet Kumar was the pillion rider. When Ranjeet Singh reached near Lodha Nahar Bridge, he found the Tractor No.RJB 6172 proceeding in front of him being driven by Dhulji Driver. Amraji is the owner of this Tractor. The Tractor was insured with National Insurance Company Limited, Banswara from 18.5.1987 to 17.5.1988 as per the policy produced before the Tribunal. (3). It is alleged that Ranjeet Singh wanted to overtake the above Tractor. He, therefore, blew horn and it appeared that the Tractor decided to give him the side. The Tractor Driver came a little on the left side but when Ranjeet Singh was in the process of over-taking the tractor, Dhulji Driver abruptly turned the tractor to right side, as a result of which, the above tractor collided with the scooter. Ranjeet Singh was injured but Ameet Kumar was crushed to death. (4). A FIR of this occurrence was lodged at Police Station, Banswara and on receipt of that report, the police registered a case and inspected the site and prepared the site plan and site inspection memo. The post-mortem was also performed and the cause of death stated in the post-mortem report is head injury sustained by the deceased. (5). The deceased was a Head Master in Government Primary school at the relevant time and was drawing the consolidated pay of Rs. 2,132/- as per the certificate Ex.1. The claimants filed a claim for Rs. 7,71,600/- before the learned Tribunal against Driver Dhulji, owner Amraji and the Insurance Company. The claim was resisted by all the non-petitioners. It was not admitted that the above accident occurred as a result of any rash and negligent driving on Dhulji. It was alleged that it was contributory negligence of Ranjeet Singh which contributed to the above accident. 7,71,600/- before the learned Tribunal against Driver Dhulji, owner Amraji and the Insurance Company. The claim was resisted by all the non-petitioners. It was not admitted that the above accident occurred as a result of any rash and negligent driving on Dhulji. It was alleged that it was contributory negligence of Ranjeet Singh which contributed to the above accident. The Tractor was to move towards right and it was expected of Ranjeet Singh to have slowed down the tractor and applied brakes when the scooter was turning on the right side. The speed of the tractor was not excessive and if Ranjeet Singh would have driven the above Scooter at a reasonable speed, he could have very well avoided the accident. The age as well as the pay of the deceased were also disputed. (6). On the pleadings of the parties, the learned Tribunal framed four issues. It is not necessary to refer all the issues, as regards the material issues regardingthe alleged negligence of Driver Dhulji, the learned Tribunal examined the evidence produced by the parties and came to the conclusion that it was the sole rash and negligence of Dhulji which has resulted in the above accident. (7). Regarding compensation, the learned Tribunal after referring to the evidence regarding age of the deceased determined it to be 50 years, and also accepted the pay certificate produced by the claimants and after deducting one third amount from the above salary, determined the dependency and after applying the multiplier of 8 determined the compensation at Rs. 1,36,416/-. The learned Tri- bunal further awarded a sum of Rs. 14,584/- as general damages and thus, making a total claim of Rs. 1,51,000/- against the owner as well the Insurance Company. (8). I have heard the learned counsel appearing for the claimant- appellants and the learned counsel for the respondents. (9). The learned counsel for the appellants has very vehemently argued that it was wholly erroneous on the part of the learned Tribunal to have applied the multiplier of 8 only. The deceased was only 47 years of age and he would have continued in the service upto 58 years and thereafter he would have been entitled to pension benefits. The claimants include his widowed wife and children. The multiplier of 15 ought to have been applied. (10). The deceased was only 47 years of age and he would have continued in the service upto 58 years and thereafter he would have been entitled to pension benefits. The claimants include his widowed wife and children. The multiplier of 15 ought to have been applied. (10). The learned counsel appearing for the respondent No.3 disputed the finding of the learned Tribunal as regards Issue No.1. He referred to the site plan and submitted that from the perusal of the site plan and site inspection memo, it is clear that the tractor was to turn towards right side and in that process, the tractor was proceeding at a moderate speed. It appears that Ranjeet Singh was driving the scooter at a uncontrollable speed and he failed to control the above vehicle when he was confronted with the scooter proceedings towards the road. Thus, there was a contributory negligence. (11). As regards the finding regarding Issue No.1, I find no ground to interfere with the same. A perusal of the site plan shows that the tractor took an abrupt right turn without giving any signal. Hence, Ranjeet Singh who was driving the scooter was surprised by the abrupt turning of the tractor to the right of the road. In such a situation it was not possible for him to control the vehicle particularly when he was proceeding straight on Banswara Doongarpur road. It appears that in order to avoid the collusion Ranjeet Singh tried to turn on the right side of the Kutchha road and in that process, the collusion took place resulting in the death of Ameet Kumar. (12). Regarding the liability of respondent No.2, it cannot be gainsaid that as per policy produced in the case, the maximum liability was Rs. 1.50 lakhs. Hence, the claim against the Insurance Company cannot exceed Rs. 1.50 lakhs. Hence, theAward passed by the learned Tribunal cannot be enhanced against respondent No.3 No.3 and the same deserves to be maintained. (13). However, we will have to determine the liability of the owner as well. Keeping in view the facts and circumstances of the present case, I am of the opinion that the learned Tribunal has not applied the correct multiplier. It ought to have applied the multiplier of 10 because even after retirement, the deceased would have been entitled to get regular pension and the claimants include his wife and children. (14). Keeping in view the facts and circumstances of the present case, I am of the opinion that the learned Tribunal has not applied the correct multiplier. It ought to have applied the multiplier of 10 because even after retirement, the deceased would have been entitled to get regular pension and the claimants include his wife and children. (14). I, therefore, deem it proper to enhance the above Award as against respondent No.2. The total claim against respondent No.2 will now be Rs. 1,85,104/-. (15). For the above reasons, this appeal against responents No.1 & 3 is dismi- ssed but the appeal, against respondent No.2 allowed in part and the impugned Award is enhanced to Rs. 1,85,104/-. There will be no order as to costs of this appeal.