Leela Bai And Ors. v. Munna Lal And Ors. — 1996 DIGILAW 331 (MP)

JUDGMENT A.S. Tripathi, J. 1. These three appeals arise out of the same judgment and order dated 9.1.1995 passed by the Vth Addl. Motor Accidents Claims Tribunal, Gwalior. 2. The three appeals are being disposed of by this common judgment. M.A. No. 146 of 1995 shall be the leading case. 3. The undisputed facts are that one tanker No. MPG 9619 was owned by respondent No. 2, Kanhaiya Lal. Respondent No. 1, Munna Lal, was the driver of the tanker. The tanker was insured with respondent No. 3. On 21.8.1991 at about 8.15 a.m., Gulab Chand, one of the claimants, and his son, Suresh Chandra, the other claimant and one Suraj Singh (deceased) were going towards Malanpur factory on moped No. M/80. Gulab Chand was driving the moped. Near Gole Ka Mandir, the said tanker dashed the moped while being driven rashly and negligently. In that accident, on account of the tanker being driven rashly and negligently, Suraj Singh died on the spot and Gulab Chand and Suresh Chandra were injured. The first set of appellants Leela Bai, Prakash Singh, Mahendra Singh and Uma are the heirs of deceased Suraj Singh. Suraj Singh was said to have been an electrician, earning Rs. 70/- per day. A claim was put by his heirs for Rs. 4,90,000/-. 4. The other set of appellant Suresh Chandra also claimed to be an electrician earning Rs. 2,000/- per month. He sustained a fracture in his leg and was said to be disabled. His claim is that after the accident he was not able to perform his duties efficiently. He had also spent a lot of money for his treatment. He claims Rs. 2,00,000/- for his compensation. 5. The third set of Gulab Chand also claimed to be an electrician and mechanic and used to earn Rs. 2,000/- per month. He also sustained injury and claims compensation. 6. The Tribunal framed the issues and held that the accident had taken place on account of rash and negligent driving of the driver of the tanker. It was also held that the tanker was properly insured with the New India Assurance Co. Ltd. With these findings, the Tribunal awarded Rs. 50,400/- only to the heirs of deceased Suraj Singh with 12 per cent per annum interest from the date of application. 7. Suresh Chandra was awarded a sum of Rs. It was also held that the tanker was properly insured with the New India Assurance Co. Ltd. With these findings, the Tribunal awarded Rs. 50,400/- only to the heirs of deceased Suraj Singh with 12 per cent per annum interest from the date of application. 7. Suresh Chandra was awarded a sum of Rs. 24,000/- as compensation with the same rate of interest. The third set of claimant, i.e., Gulab Chand was awarded only the interim payment already made amounting to Rs. 12,000/- only. 8. Against this judgment and order, the present appeals have been preferred. 9. Heard learned Counsel for the parties and perused the record. The first point raised in these appeals was that the accident had taken place on account of rash and negligent driving of the tanker. On this point, the statements of Gulab Chand, AW 1, Devendra, AW 2 and Suresh Chandra, AW 3, were examined by the Tribunal. It was found that the tanker was being driven with a fast speed rashly and negligently and had dashed against the moped on which the two witnesses and the deceased were sitting. The finding recorded by the Tribunal on this point is fully supported with the testimony of the witnesses and the circumstances that Suraj Singh had died on the spot and the two others were injured. 10. On a public road, it is established principle that heavier the vehicle greater the responsibility. The manner in which the accident had taken place, there is no doubt that the tanker was being driven rashly and negligently. This finding of the Tribunal could not be assailed on any count and the same is confirmed. 11. The second point was in respect of the claim of the heirs of the deceased Suraj Singh. The appellant Leela Bai is the widow of Suraj Singh. Prakash Singh and Mahendra Singh are his sons. Uma is his daughter. This fact is not disputed. These appellants had claimed Rs. 4,90,000/- as compensation. In the evidence, it had come that Suraj Singh was also electrician and used to earn Rs. 30/- per day according to the work being made available. He was usually working for about 15 days in every month. In this respect, the Tribunal had examined the statement of Devendra Kumar, AW 2. These appellants had claimed Rs. 4,90,000/- as compensation. In the evidence, it had come that Suraj Singh was also electrician and used to earn Rs. 30/- per day according to the work being made available. He was usually working for about 15 days in every month. In this respect, the Tribunal had examined the statement of Devendra Kumar, AW 2. Suraj Singh also used to work with different contractors at times and every day he used to be in search of work. The Tribunal rightly concluded that average working day of the deceased might have been coming to 20 days in a month and in that event his income is coming at Rs. 600/- per month. In this respect, I do not find anything to differ with the finding of the Tribunal. Suraj Singh was about 35 years of age at the time of death. Learned Counsel for the appellants only challenged the point of multiplier applied by the Tribunal in his case. The age of Suraj Singh was found in the post-mortem report by Dr. V.K. Diwan, AW 4, as 35 years. That could be safely relied by the Tribunal but the Tribunal considered his age as 42 years on the vague statement of Leela Bai which could not be accepted. Therefore, the age has to be taken as 35 years at the time of accident. In such a case, the multiplier applied by the Tribunal of 12 was not at all appropriate. The appropriate multiplier should have been applied as 15 in this case which is appropriate in the facts and circumstances of the case. 12. The next point was raised in respect of the deduction by the Tribunal holding therein that there was a contributory negligence on the part of the appellants as well. The Tribunal found that since three persons were sitting on one moped which was sufficient to presume that there was contributory negligence on the part of the appellants. On this point, the Tribunal had deducted 20 per cent of the amount calculated for the award. The contributory negligence could not be assumed. It had to be proved. Further that if three persons have been sitting on the moped, that by itself does not amount to contributory negligence. On this point, the Tribunal had deducted 20 per cent of the amount calculated for the award. The contributory negligence could not be assumed. It had to be proved. Further that if three persons have been sitting on the moped, that by itself does not amount to contributory negligence. On the other hand, the nature of the accident was such that the tanker was driven rashly and negligently which dashed the moped on a public road and the moped was on its own side. In such a situation, there could not be any indication of contributory negligence. Therefore, the deduction of 20 per cent by the Tribunal in respect of the claim of the heirs of the deceased is not at all justified. A reference was also made to the case of United India Insurance Co. Ltd. v. Lalji Singh 1993 ACJ 704 (MP). In that case, there was an element of contributory negligence at the point of turning on the road, whereas in the present case there is absolutely nothing to see that there was any contributory negligence on the part of the deceased or the injured persons. In such a case, the deduction of 20 per cent of the amount calculated was not justified on the basis of assumed contributory negligence. Thus, on a calculation applying the multiplier of 15 and giving no allowance to any contributory negligence, the claim of the heirs of the deceased Suraj Singh which should have been awarded comes to Rs. 78,300/-. 13. So far as the claim of injured Suresh Chandra is concerned, he sustained a fracture and the Tribunal had awarded Rs. 24,000/- as compensation after calculation. The amount of Rs. 24,000/- has been calculated by the Tribunal on the basis of suffering of Suresh Chandra and the expenses incurred on medical treatment, etc. On facts, there is no reason to differ from the finding of the Tribunal on this point. 14. However, learned Counsel for the appellant Suresh Chandra placed reliance on the cases of Bhagchand v. Kishanlal 1991 ACJ 1074 (MP), Mangal Kishore Kaul v. Union of India 1989 ACJ 786 (P&H) and Anugrah Sharma v. Balbir Singh 1992 ACJ 284 (Delhi). Compensation on the basis of permanent disability when the leg was shortened by 3/4th of an inch to the tune of Rs. 45,000/- was awarded taking into consideration that the injured person was a graduate. 15. Compensation on the basis of permanent disability when the leg was shortened by 3/4th of an inch to the tune of Rs. 45,000/- was awarded taking into consideration that the injured person was a graduate. 15. In the case of U.P. State Road Trans. Corporation v. Naresh Pal Singh 1995 ACJ 591 (Allahabad), the Allahabad High Court held that the shortening of leg by 1/4th of an inch and restricting its movement amounts to permanent disability. The court allowed the total compensation at Rs. 90,000/-. 16. In the present case, the medical report shows that Suresh Chandra had received an injury on his leg and on operation one leg was shortened. The Tribunal found that medical bills were not submitted and the expenditure was not proved, however, the patient remained in the hospital for about two months. The expenses for treatment were found to be Rs. 4,000/- by the Tribunal and Rs. 6,000 for mental suffering, etc. The Tribunal calculated the suffering of the patient and the nature of medical treatment and came to the conclusion that Rs. 24,000/- was sufficient in the circumstances. On facts, the Tribunal had given detailed reasons for allowing this amount to Suresh Chandra on account of the nature of injuries caused and suffering of the patient. On facts, I do not find any reason to differ with this finding of the Tribunal, so far as the compensation awarded to Suresh Chandra is concerned. 17. The third appeal was filed by Gulab Chand who was not allowed any further compensation by the Tribunal. The amount of Rs. 12,000/- paid by the company as the interim compensation was found to be sufficient which was already allowed under Section 140 of the Motor Vehicles Act. Gulab Chand had sustained minor injuries and I think in the circumstances of the case that the Tribunal was fully justified in holding that interim compensation as already allowed of Rs. 12,000/- was sufficient in the circumstances of the case and the nature of injuries caused to Gulab Chand. 18. Therefore, in view of the findings recorded above, the Misc. Appeal Nos. 164 of 1995 of Gulab Chand and 169 of 1995 of Suresh Chandra are dismissed. Appeal No. 146 of 1995 filed by the heirs of deceased Suraj Singh is allowed and it is directed that these appellants shall get in total an amount of Rs. 78,300/- from the respondents. Appeal Nos. 164 of 1995 of Gulab Chand and 169 of 1995 of Suresh Chandra are dismissed. Appeal No. 146 of 1995 filed by the heirs of deceased Suraj Singh is allowed and it is directed that these appellants shall get in total an amount of Rs. 78,300/- from the respondents. The amount of Rs. 25,000/-already paid under Section 140 of the Motor Vehicles Act shall be deducted/ adjusted in the said amount. The remaining amount with interest at the rate of 12 per cent per annum shall be awarded from the date of application, i.e., 13.1.1992 till realisation. It is further directed that the shares allotted amongst the present appellants in the amount awarded are uncalled for and are set aside. All the appellants shall get equal share in the entire amount allowed at once as they are all majors. Let a copy of this judgment be placed on the files of Misc. Appeal Nos. 164 of 1995 and 169 of 1995 which shall govern disposal of these appeals as well.