General Manager, M. P. State Road Transport Corporation Bhopal (M. P. ) v. Vimla
1998-05-06
R.R.YADAV
body1998
DigiLaw.ai
Honble YADAV, J.–Both the aforesaid appeals arise out from the same accident occurred on 27.4.83 between the bus belonging to the appellant and motor cycle driven by deceased Om Prakesh while other deceased Chand Mal Sindhi was sitting on the pillion of the said motor cycle, decided by Claims Tribunal on 8.4.93 by two separate judgments. However, since the common question of law and facts are involved in these two appeals therefore these appeals can conveniently be disposed of by a composite judgment. (2). The Claims Tribunal, Nimbaheda in Misc. Appeal No. 116/94 has awarded total compensation of Rs. 1,72,600/- to the heir and legal representatives of deceased Om Prakash and after deducting Rs.15,000/- as no fault liability already paid, the Claims Tribunal directed the appellants to pay Rs. 1,57,600/- with interest at the rate of 12% per annum from the date of filing of the claim petition i.e. 14.7.1983 to them. In Misc. Appeal No. 117/94 the Claims Tribunal awarded compensation to the tune of Rs. 2,23,300/- to the heir and legal representatives of deceased Chand Mal and after deducting Rs. 15,000/- already paid as no fault liability to them under Sec. 140 Rs. 2,08,300/- was ordered to be paid to them with interest at the rate of 12% per annum from the date of filing of the claim petition i.e. 1.6.1983. (3). Before dealing with the rival contentions raised at the Bar in the present appeals it would be expedient to narrate some relevant necessary facts which are taken from Misc. Appeal No. 116/94. (4). It is borne out from the record that deceased Om Prakash Jaiswal at the time of accident was driving the motor cycle whereas deceased Chand Mal was sitting on the pillion of the said motor cycle. They were going from Satkhanda to Nimbaheda when the bus of the appellant corporation coming from the opposite side being driven rashly and negligently by respondent No. 10, who lost control over the bus as a result of which the bus hit the motor cycle about two and half Kms. from Nimbaheda and Chittor Road on the right side of the road as result of which the motor cycle was damaged and the front wheel of the bus rolled on deceased Om Prakash and Chand Mal.
from Nimbaheda and Chittor Road on the right side of the road as result of which the motor cycle was damaged and the front wheel of the bus rolled on deceased Om Prakash and Chand Mal. It is averred in the claim petitions that the deceased received grievous injuries and they became unconscious and on the advise of Hospital doctors Nimbaheda they were taken to Udaipur General Hospital where Om Prakash died on 30.4.83 whereas Chand Mal died on 28.4.83. (5). In the written statement filed by appellant Corporation the averments made in the claim petitions was denied and it was pleaded that the bus was driven in a normal speed at the time of accident but as there was group of she-goats crossing the road and the motor cycle driver Shri Om Prakash deceased in order to cross the crowd of she-goats turned his motor cycle on the wrong side and came on the front of the bus. Deceased Om Prakash could not maintain control over his motor cycle and hit the mudguard of the bus. The driver of the bus did every thing within his control to avoid passing of the wheel of the bus on the motor cycle and turned the bus on its right side and stopped it. It is alleged by the appellants that the motor cycle driver deceased Om Prakash without giving any signal came on the right side and hit the bus. (6). On the basis of pleadings of the parties necessary issues were framed by Claims Tribunal. Both the parties adduced their oral and documentary evidence in support of their respective claims. (7). The Claims Tribunal after analytical discussion of the evidence adduced by both the parties held that accident occurred on 27.4.83 due to rash and negligent driving of the bus driver of the appellant-corporation for which it is vicariously responsible. (8). It is conceded by learned counsel for the appellants that plea of contributory negligence was not raised in written statement filed by the appellants before the Claims Tribunal. It was pleaded in the written statement that accident occurred due to rash and negligent act of driver of motor cycle and not because of rash and negligent driving of the bus by bus driver of the appellant-corporation.
It was pleaded in the written statement that accident occurred due to rash and negligent act of driver of motor cycle and not because of rash and negligent driving of the bus by bus driver of the appellant-corporation. Learned counsel for the appellants submitted that now from the evidence on record it can be demonstrated that the deceased Om Prakash who was driving the motor cycle was guilty of contributory negligence. (9). The aforesaid argument of learned counsel for the appellants is not acceptable to me as plea of contributory negligence was not taken by appellant-corporation in its written statement filed before the Claims Tribunal due to which no issue was framed on this point. Due to non framing of the issue on the point of contributory negligence of driver of motor cycle attention of respondents was not focussed to adduce evidence to prove that deceased Om Prakash driver of motor cycle was not guilty of contributory negligence. At this stage, it is too late to allow the appellants to raise the plea of contributory negligence on the part of Om Prakash deceased driver of motor cycle to utter prejudice to claimant-respondents. The point of contributory negligence in the present case cannot be allowed to be taken at this stage, causing serious prejudice to the claimant-respondents. The plea of contributory negligence on the part of Om Prakash deceased driver of motor cycle was available to the appellants at the trial stage before the Claims Tribunal. Now, the appellants cannot be allowed to travel beyond their pleadings. It is held that appellants are not entitled even to adduce evidence beyond their pleadings. Evidence beyond their pleadings is inadmissible. (10). A close scrutiny of statement of PW 1 - Smt. Vimla and PW 2 - Shri Sushil Kumar and other surrounding circumstances of the case, as discussed by the Claims Tribunal in its Award, lead towards an irresistible conclusion that the accident occurred due to rash and negligent driving of the bus driver and deceased Om Prakash was not guilty of contributory negligence. The aforesaid finding of Claims Tribunal is based on analytical discussion of the oral and documentary evi- dence on record, with which I am at one. (11). For the reasons recorded hereinabove, the argument of learned counsel for the appellant regarding contributory negligence of deceased Om Prakash, driver of the motor cycle, is hereby repelled. (12).
The aforesaid finding of Claims Tribunal is based on analytical discussion of the oral and documentary evi- dence on record, with which I am at one. (11). For the reasons recorded hereinabove, the argument of learned counsel for the appellant regarding contributory negligence of deceased Om Prakash, driver of the motor cycle, is hereby repelled. (12). It is further contended by learned counsel for the appellants that the Claims Tribunal has applied wrong multipliers in these two appeals. In support of his argument, he placed reliance on a judgment rendered by me in case of Rajasthan State Road Transport Corporation vs. Bhanwar Dan & Ors. (1) decided on November 25, 1997, wherein in paragraph 12, it was held which reads as follows: ``12. I am of the view that neither the Tribunal nor the courts can go by the ready recknors. It can only be a guide. Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 17 and his dependents are his parents, age of parents would also be relevant in the choice of multiplier. (13). In Misc. Appeal No. 116/94, learned counsel for the appellants stated and also borne out from the evidence on record that at the time of accident deceased Om Prakash was 40 years whereas his dependents i.e. his wife was found to be 35 years of age, his father Budh Lal was of 74 years whereas age of Miss Manisha, daughter of deceased, was found to be 16 years and age of his son Manish Kumar was found to be 15 years. According to learned counsel for the appellants, both minor son and daughter will attain their majority at the age of 21 years and father of deceased is also at the fag end of his life. It is urged by the learned counsel for the appellants that keeping the age of dependents of deceased Om Prakash in view, at the time of accident, and the and the case of Bhanwar Dan & Ors. (supra) the multiplier applied by the Claims Tribunal should not have exceeded 18 years. (14).
It is urged by the learned counsel for the appellants that keeping the age of dependents of deceased Om Prakash in view, at the time of accident, and the and the case of Bhanwar Dan & Ors. (supra) the multiplier applied by the Claims Tribunal should not have exceeded 18 years. (14). The learned counsel for claimant-respondents is not in position to support the application of 25 years multiplier applied by the Claims Tribunal, taking into account the age of dependents of deceased Om Prakash at the time of accident except reiterating age of wife of deceased-claimant-respondent No. 1. Looking into totality of the facts and circumstances of the present case, I am of the view that the Claims Tribunal has wrongly applied multiplier of 25 years in case of Om Prakash whereas it should not have exceeded 18 years. (15). After applying 18 years multiplier in place of 25 years in case of deceased Om Prakash, the compensation comes to Rs. 1,08,000/- in place of Rs. 1,50,000/- awarded by the Claims Tribunal. As regard award of compensation on other counts is concerned, the Claims Tribunal has not committed error in awarding the same, therefore, it is hereby affirmed. In this way, after deducting Rs. 15,000/- as no fault liability already paid by the appellants, the claimant-respondents are entitled to receive Rs. 1,15,600/- in place of Rs. 1,57,600/- as compensation with interest at the rate of 12% from the date of filing of claim petition i.e. 14.7.83. (16). Learned counsel for the appellants also urged that in case of deceased Chand Mal the multiplier of 28 years is also wrongly applied by Claims Tribunal. In fact, in case of deceased Chand Mal also, multiplier should not have exceeded 18 years. (17). Learned counsel appearing on behalf of claimant-respondents refuted the aforesaid argument and urged that in case of deceased Chand Mal, at the time of accident he was only 32 years of age and his children dependents were minors.
In fact, in case of deceased Chand Mal also, multiplier should not have exceeded 18 years. (17). Learned counsel appearing on behalf of claimant-respondents refuted the aforesaid argument and urged that in case of deceased Chand Mal, at the time of accident he was only 32 years of age and his children dependents were minors. Widow of deceased Smt. Devi Bai-respondent No. 1, was aged about 30 years at the time of accident but rest of dependents of deceased namely Miss Sunita- respondent No. 3 (daughter) was 11 years of age, respondent No. 4-Miss Anita (daughter) was 9 years of age, Miss Babita (daughter) was 7 years of age, respondent No. 6-Miss Rekha (daughter) was 5 years of age, respondent No. 7-Raj Kumar (son) was 3 years of age, respondent No. 8-Mahesh (son) was one & half years of age and respondent No. 9-Miss Ganga (daughter) was only 8 months old. (18). Looking into the pathetic conditions of dependents of deceased Chand Mal, whose sons and daughters were in the age group of 8 months to 11 years at the time of accident, as borne out from the evidence on record, the multiplier applied by the Claims Tribunal of 28 years does not appear to me to be excessive. The contention of learned counsel for the appellants contrary to it is rejected and the multiplier of 28 years applied by Claims Tribunal in case of dependents of deceased Chand Mal, who was sole bread-earner in his family, is hereby maintained. (19). As a result of aforesaid discussion, the Misc. Appeal No. 116/94 is partly allowed to the extent mentioned above, modifying the award from Rs. 1,57,600/- to Rs. 1,15,600/- with interest at the rate of 12% per annum from the date of filing of claim petition i.e. 14.7.83 whereas Appeal No. 117/94 is hereby dismissed and award given by Claims Tribunal is affirmed. (20). Both the parties are directed to bear their own costs in these appeals.