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2000 DIGILAW 312 (PNJ)

Suman Lata v. Avtar Singh

2000-03-17

S.S.SUDHALKAR

body2000
Judgment S.S.Sudhalkar, J. 1. This appeal arises but of the award of the Motor Accidents Claim Tribunal, Kapurthala in MACT Case No. 53 of 11.10.90. The claim was field by the appellant and respondent No. 3 because of the death of Surinder Kumar Chopra, husband of the appellant and son of respondent No. 3 in the accident which took place on 18.9.1990 at 11.00 a.m. near village Mehra, District Jalandahr. The accident had taken place on the G.T. Road. The case of the appellant-petitioner is that the deceased was going on the scooter. A maruti van was going ahead of the scooted. The four-wheeler bearing No. PB-08A-1249 came from the opposite side. The four wheeler was being driven at rash speed by Avtar Singh respondent No. 1. It is contended that the 4-wheeler was being driven at a rash and negligent manner and it came on the wrong side of the road and struck against the maruti car causing damage to it and injuries to the passengers of the car and after striking the maruti car, the 4-wheeler struck against the scooter of the deceased which was going behind the maruti car. The 4-wheeler dragged the scooter and the deceased towards the road side pits and the 4-wheeler fell into a pit. 2. The claim petition was contested by the respondents. On merits, respondent No. 1 denied the allegations stating that the car was coming from Jalandhar to Phagwara side with a high speed rashly and negligently. This maruti car was being closely followed by scooter being driven by the deceased with high speed. The deceased was trying to overtake the maruti car. The maruti car struck against the 4-wheeler and at that time the 4-wheeler was on its correct side and its speed was low. In the meantime, the scooter being driven by the deceased struck with maruti car on its back portion and fell down. 3. After recording the evidence and hearing the arguments, the Tribunal was pleased to dismiss the claim petition by its award dated 11.3.92. The claim petition was dismissed because of the decision of issue No. 3 against the claimant-appellant. The appellant filed F.A.O. No. 655 of 1992. 3. After recording the evidence and hearing the arguments, the Tribunal was pleased to dismiss the claim petition by its award dated 11.3.92. The claim petition was dismissed because of the decision of issue No. 3 against the claimant-appellant. The appellant filed F.A.O. No. 655 of 1992. When it came for hearing on 18.3.94 it was ordered that the case be remanded to the Motor Accident Claims, Tribunal, Kapurthala for deciding issue No. 6 regarding quantum of compensation afresh because it was not decided by the Tribunal. After this order, the Tribunal decided the same on 14.6.1994 vide its judgment annexure P/3. The present appeal was filed after the judgment Annexure P/3. 4. I have heard learned counsel for the parties. 5. Counsel for the appellant has argued that the Tribunal was not correct when it held that the accident did not take place because of the rash and negligent driving of driver of the 4-wheeler. In the written statement, respondent No. 1 has stated regarding the happening of the accident as under: "Actually the Maruti Car bearing regn. No. PB-08-0093 was coming from Jalandhar to Phagwara side with a high speed, rashly and negligently. This Maruti Car was being closely followed by scooter bearing No. PB-08-A-4491 being driven by the deceased with high speed, rashly and negligently. The deceased was trying to overtake the Maruti Car. Firstly the maruti car struck in the four-wheeler of the replying respondent rashly and negligently. At that time the four-wheeler was on its correct side and its speed was low. In the meantime the scooter being driven by deceased rashly and negligently struck in Maruti Car on its back portion and then fell down. It is pertinent to mention here that when the Maruti Car struck in the four-wheeler of replying respondent, the front right wheel of the four-wheeler of the replying respondent got bursted and turned to its right side. The owner of the Maruti Car was political and influential person, so neither any action was taken against him nor any case was registered against him. Thus, it is very much clear from the above-said submission that the accident has not taken place due to rash speed and negligence of the respondent No. 1 rather it has taken place due to the rash and high speed of the deceased and driver of Maruti Car No. PB-08-0093." 6. Thus, it is very much clear from the above-said submission that the accident has not taken place due to rash speed and negligence of the respondent No. 1 rather it has taken place due to the rash and high speed of the deceased and driver of Maruti Car No. PB-08-0093." 6. Avtar Singh respondent No. 1 has been examined as RW1. He has stated in his deposition that on 18.9.1990 he was coming from Phagwara to Jalandhar. One maruti car and scooter were coming from the opposite side. He has further stated that the scooterist was trying to over take the above mentioned Car and that the car driver did not allow the scooter to overtake and by running fast it struck his vehicle and then the scooter hit the car from the back side. After the car hit the 4-wheeler, the type of 4-wheeler burst. He has further stated that the accident occurred on account of the fault of the car driver. In the cross-examination, this witness has stated that it is correct that his vehicle went in the pit on the right side. However, he has denied that the scooter also fell in the ditch along with his vehicle. He has also stated that the scooter had already fallen on the road on account of the accident. 7. Counsel for the respondents have argued that respondent No. 1 is only the eye-witness to the accident and the witnesses examined by the appellants are true witnesses because they are not coming out with the true version. 8. PW1 Balwinder Singh Constable has stated that on 1.8.1990 at about 2.00 p.m. he was going on cycle for patrolling when a maruti car came from the side of Jalandhar and a scooter was following it. Learned counsel for the appellant has stated that the date and time given by this witness do not coincide. 9. P.W.3 is Kamal Mohy who was occupant of the Maruti Car. He has stated that the scooter was crushed underneath the wheels of the four-wheeler. 10. Learned counsel for the appellant argued that the accident as such is admitted and the question is whether the respondent driver was also negligent or not? It was an accident which took place firstly because of collusion between the four wheeler and the Maruti Car. He has stated that the scooter was crushed underneath the wheels of the four-wheeler. 10. Learned counsel for the appellant argued that the accident as such is admitted and the question is whether the respondent driver was also negligent or not? It was an accident which took place firstly because of collusion between the four wheeler and the Maruti Car. Even if the scooter did not dash against the four wheeler, the accident of the four wheeler with the Maruti Car even as per statement of the driver of the four-wheeler RW.1, has resulted in the accident with the scooterist which was following the Maruti Car. Even if the driver of the four wheeler is partly liable for causing the accident so far as the appellant who is claiming for the death of the scooterist, is a question of composite negligence of both the drivers. As per version of Avtar Singh RW1 Maruti Car hit the four-wheeler and the tyre of the four wheeler burst. If this was the position he could have corroborated it from the necessary evidence to show that the tyre of his vehicle had burst. He has admitted as stated above that the vehicle went into pit on the right hand side of the road. If his vehicle went in the pit on the right hand side of the road, bursting of tyre could have been reason for the same. Then he could have proved it by corroborating by producing documents such as photographs, site plan etc. This was neither done by him nor by the other respondents. Passenger of the Maruti Car, Kamal Mohy (PW3) had stated that the four wheeler was coming from the other side and it overtook the bus and hit with their car. They were dragged about five feet. The four wheeler went out of control and hit a scooterist and dragged it towards katcha way of the road. The scooter was crushed underneath the wheels of the four wheeler. It has come out from the cross-examination of this witness that the owner of the Maruti Car was driving it and he was General Secretary of the political party. It is the case of the respondent that because of the political position of the owner of the Maruti Car, case was not registered against him. However, if there is evidence against the respondents it can still be considered by the Court. It is the case of the respondent that because of the political position of the owner of the Maruti Car, case was not registered against him. However, if there is evidence against the respondents it can still be considered by the Court. PW. 1 Balwinder Singh is a constable. According to him the scooter was following Maruti Car. The Tempo came from the opposite side in a rash and negligent manner at a very high speed. It struck with Maruti Car as a result of which the driver lost control and struck against the scooter. Scooter rolled in the pits. This witness has made mistake regarding the date and time of the accident. However, the accident took place in the day time, the version regarding date and time given him can be said to be by mistake. The statement as to the date also cannot be said to be such that it will lead to drawing of inference that this witness is not a true witness. This witness is a police constable and according to him he was going on cycle for patrolling. He has stated that tyre of the tempo had not burst. He has stated that the driver of the tempo had run away from the sport. 11. From the evidence of PW1 Balwinder Singh, and PW.3 Kamal Mohy and RW1 Avtar Singh it is clear that respondent No. 1 Avtar Singh (RW1) was negligent. In case of two fast moving vehicles approaching each other from both sides, it is difficult to draw clear line of distinction between negligence of two vehicles if the evidence does not make a clear distinction between negligence of the two. This principle is laid down in the case of Amthiben Maganilal v. Supdt. Geophysicist O.N.G.C. and Ors., 1996(7) Gujrat Law Reporter 910. I hold from the evidence available before me and following the principle laid down in the case of Amthiben Maganlal (supra) that both the vehicles i.e. Maruti van and the four-wheeler were negligent in causing the accident. The proportion of negligence, in view of the nature of the vehicles can be said to be 75 : 25 as between the driver of the four-wheeler and the driver of the Maruti Car. From the act of the scooterist by following Maruti Car when the accident took place, it cannot be said that he was negligent. The proportion of negligence, in view of the nature of the vehicles can be said to be 75 : 25 as between the driver of the four-wheeler and the driver of the Maruti Car. From the act of the scooterist by following Maruti Car when the accident took place, it cannot be said that he was negligent. A scooterist following the car even at a safe distance will not be able to avoid the accident of this type when the vehicle which is being followed dashes against the vehicle coming from the opposite side. Therefore, I do not agree with the findings of the Tribunal that respondent No. 1 was not negligent. Respondent No. 1 and the driver of the Maruti car both were negligent and so far as scooterist is concerned, his case is of composite negligence of drivers of both the Car and the four wheeler and not of contributory negligence. 12. Regarding quantum of compensation, learned counsel for the respondent argued that quantum of compensation calculated is heavy while contrary arguments have been advanced by the learned counsel for the appellants. The counsel for the respondent has specifically challenged the multiplier applied in the present case. In the present case, the Tribunal, after remand of the case for calculation of compensation held that the deceased was earning Rs. 2,132/- per month. This finding is not challenged by the learned counsel for the appellant. However, the respondents have challenged the multiplier only. Multiplier adopted in this case by the learned Tribunal is 20. However, in view of the age of the deceased it should not have been more than 16. No other change in calculation is suggested by the learned counsel. The amount calculated by the tribunal is Rs. 2,132/-being the income of the deceased and Rs. 1,422/- loss of dependency per month after deducting 1/3rd for the expenses of the deceased. Hence the Tribunal has held loss of dependency to be Rs. 17,064/- per annum. 13. As mentioned above, there is no dispute regarding this calculation. However, with the multiplier of 16, the amount of loss of dependency can be capitalised to Rs. 2,73,025/-. 14. No other point has been argued before me. 15. Therefore, the calculation by the Tribunal stands reduced to the above amount. 16. As a result, this appeal is partly allowed. Appellant and respondent No. 3 are awarded a sum of Rs. However, with the multiplier of 16, the amount of loss of dependency can be capitalised to Rs. 2,73,025/-. 14. No other point has been argued before me. 15. Therefore, the calculation by the Tribunal stands reduced to the above amount. 16. As a result, this appeal is partly allowed. Appellant and respondent No. 3 are awarded a sum of Rs. 2,73,025/- from the respondents jointly and severally with interest of 12% per annum from the date of the petition till realisation with proportionate costs. Rest of the claim is dismissed. Any amount of deposit for no fault liability be given credit of. 17. Out of the above amount 2/3rd share shall go the share of the appellant and 1/3rd shall go to respondent No. 3 who is mother of the deceased. 50 per, cent of the amount awarded to the appellant and respondent No. 3 including the interest shall be invested in any nationalised bank for a period of five years. The bank shall not allow withdrawal of the said amount without specific permission of the Tribunal. However, it shall pay the interest over the said amount as and when it was due.