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2000 DIGILAW 32 (HP)

LAXMI CHAND v. CHAMAN LAL

2000-02-25

LOKESHWAR SINGH PANTA

body2000
JUDGMENT Lokeshwar Singh Panta, J. 1. The above appeal by the owner-cum-driver of the tractor is directed against the award dated 22.06.1992 of Motor Accident Claims Tribunal (II), Sirmour District at Nahan in Claim Petition No.ll-N/2 of 90/89 whereby a sum of Rs.1,80,000/- was awarded as compensation to the claimant-respondent for the death of his wife Smt. Vijay Kumari who died in the accident on 19.4.1989. 2. Briefly stated the facts of the case are that on 19.4.1989 at about 6 p.m. Smt. Vijay Kumari a J.B.T. Teacher was going on foot on her leftside on the road leading to the house of Mohammad Yusaf (PW-5) to village Johron. The appellant who is the owner of tractor No.HPN-2262 was driving his tractor at a very high speed and in a rash and negligent manner while he was coming from the side of the village Peepli-wala. When the tractor reached near Smt.Vijay Kumari, it had struck against her as a result of which she fell on the road and received serious injuries on her head and other parts of the body. The appellant did not stop his tractor after causing the accident even despite the request of PW.Mohammad Yusaf. Thereafter, one Master Laxmi Chand, his wife and various other persons reached the spot and took injured Smt.Vijay Kumari to the house of said Master Laxmi Chand but she died on the way. The claimant who is the husband of Smt.Vijay Kumari filed a claim petition before the Motor Accident Claims Tribunal below alleging, inter alia, that the accident had taken place due to rash and negligent driving of the tractor by the appellant resulting the death of his wife who at the time death was 27 years of age and was employed in Govt. Primary School, Haripur-Khole. The salary of the deceased before her death was Rs.2000/= per month. The appellant in his written statement stated that the age of the deceased was about 30 years at the time of the accident and she was not receiving salary of Rs.2,000/= per month. The appellant had admitted that he was driving the tractor near the place of the accident at the relevant point of time. The appellant in his written statement stated that the age of the deceased was about 30 years at the time of the accident and she was not receiving salary of Rs.2,000/= per month. The appellant had admitted that he was driving the tractor near the place of the accident at the relevant point of time. However, it was denied by him that he was driving the tractor rashly or negligently or deceased Smt.Vijay Kumari was going from village Peepliwala towards other side of the road with a heavy hammer on her shoulder and when she reached near the house of one Kala alias Basheer and Dharam Singh, a buffalo calf was tied there with a rope and was grazing on the side of the road. The buffalo calf suddenly started running across the road as a result of the sound of the tractor but since it was tied with the rope it could not go beyond the length of the road and in the meantime Smt.Vijay Kumari entrapped with the rope around her body and in that struggle she fell on the metalled road and sustained injuries. It was further stated that in the meantime, the appellant reached the place of the accident with his tranctor and stopped the vehicle nearby. He pleaded that he had been falsely involved in this accident on account of previous ongoing litigation between the parties. He also asserted that he himself want to the Police Post Majra and narrated to the police about the entire facts but in the meantime, the claimant alongwith others reached the Police Post, Majra and manipulated the case registered against him for the cause of the death of Smt.Vijay Kumari. 3. On the controversial pleadings of the parties, the Motor Accident Claims Tribunal framed the following issues: 1. Whether the accident took place due to rash or negligent driving by respondent No.1? - OPP. 2. In case Issue No.1 is proved, to what amount of compensation, the petitioners are entitled ? OPP. 3. Whether the petition on behalf of the petitioners No§.2 and 3 is not maintainable ? - OPR. 4. Relief. 4. The parties led their oral and documentary evidence during the trial of the claim petition. - OPP. 2. In case Issue No.1 is proved, to what amount of compensation, the petitioners are entitled ? OPP. 3. Whether the petition on behalf of the petitioners No§.2 and 3 is not maintainable ? - OPR. 4. Relief. 4. The parties led their oral and documentary evidence during the trial of the claim petition. The Tribunal below on appraisal of the entire evidence on record came to the conclusion that the accident had occurred dye to rash and negligent driving of the tractor by the appellant resulting the death of Smt.Vijay Kumari. Consequently, sum of Rs. 1,80,000/= was awarded in favour of claimant husband of deceased Smt.Vijay Kumari. Under issue No.3 it was held by the Tribunal below that the claim petition on behalf of other claimants was not maintainable. 5. Feeling aggrieved and dis-satisfied against the award, the appellant has filed the present appeal. The claimant also filed cross-objections whereunder a claim of Rs.6,00,000/- was made as claimed by him in the claim petion before the Tribunal below and awarding dependency of the claimant at Rs.1500/- per month and the increase of the multiplier to 30 from 18 applied by the Tribunal below. The claimant also claimed interest @18% per annum on the enhanced amount of compensation. 6. We have heard learned counsel on both side and re-appraised the entire evidence on record. Mr.Y.Paul learned counsel for the claimant contended that the Tribunal below has not properly appreciated the evidenceeon record and held the appellant liable to pay the amount of compensation without any fault on his part. He contended that on reappraisal of the evidence of the alleged eye witness Mohammad Yusaf, it is clear that he had not seen the accident and, therefore, the claimant has failed to prove that the appellant was negligent in driving the tractor. He contended that on reappraisal of the evidence of the alleged eye witness Mohammad Yusaf, it is clear that he had not seen the accident and, therefore, the claimant has failed to prove that the appellant was negligent in driving the tractor. He next contended that the dependency of the claimant has been wrongly assessed by the Tribunal below for the reason that the claimant cannot be said to be dependent upon his wife as he is working as Draftsman in the H.P.P.W.D. The learned counsel next contended that the claimant has contracted a second marriage and, therefore, he is not entitled to any amount of compensation on account of the loss of his first wife and to prove the factum of second marriage, the claimant has filed CMP.No.438/ 09 seeking to bring this fact on record and the said application is supported by a copy of the marriage certificate issued by the Pradhan of the Gram Panchayat on 17.06.1996. Lastly, the learned counsel contended that the multiplier of 18 adopted by the Tribunal below is at the higher side and the amount of compensation assessed on the basis of such multiplier is exorbitant and deserves to be reduced if the other contentions of the learned counsel are not found favourable to the Court. In support of his submissions, the learned counsel has placed reliance on Basappa and another Vs. K.H. Sreenivasa Reddy and others (AIR 1982 Kamataka 30 ), The Oriental Fire and General Insurance Company Ltd. Vs. Shrimati Chandrawati and others (AIR 1983 Allahabad 174), Makbool Ahmed and others Vs. Bhura Lal and others (AIR 1986 Rajasthan 177), Purnima Vindal and others, Chatar Mai and others (1986 ACJ 130). and Radha Krishna Narang Vs. U.P. State Road Trans. Corpn. and another (1987 ACJ 721). 7. Per contra, Ms.Devyani Sharma, learned counsel for the claimant contended that the eye witness Mohammad Yusaf has categorically stated that the accident had taken place due to rash and negligent driving of the tractor by the appellant resulting in the death of Smt. Vijay Kumari and his testimony was corroborated by ASI, Ram Lai (PW-6) who conducted the investigation of the criminal case. She also contended that the effect of the acquittal of the appellant by the criminal Court will not ipso - facto exonerate the appellant for his rash and negligent driving of the tractor and causing the accident in the present proceedings and no reliance can be placed on the judgment of the criminal Court or the evidence adduced before the criminal Court by the parties. She next contended that the appellant has miserably failed to prove the defence put forth by him before the Tribunal. The Tribunal has rightly appreicated the entire evidence on record while holding the appellant rash and negligent in driving the tractor and causing the accident. She further contended that due to the death of Smt.Vijay Kumari, it was not loss to the dependency of the claimant but the loss to the estate of the family and had the deceased been alive, she would have contributed major part of her salary to the estate of the family and thereby substantial loss was caused to the estate due to the death of Smt.Vijay Kumari. The learned counsel also contended that though the factum of re-marriage of the claimant is not admitted by her as there is no positive and convincing evidence on record to prove that the claimant has contracted a second marriage, that by itself would not dis-entitle the claimant to receive the compensation for the loss of the estate. She also contended that there is no provisions under the Motor Vehicles Act that provide for taking on record the subsequent events. In support of her submissions, the learned counsel relied upon Rajabi and another Vs.Oriental Fire & General Insurance C. Limited (1981 ACJ 374 (Karnataka)), Behari Lal Sharma and others Vs. State of Punjab through Secretary to Govt. of Punjab (1992 ACJ 831 (P&H) ), Vimla Devi and others Vs. Chaman and others (19192 ACJ 1048 (Rajasthan) ), Rajasthan State Road Transport Corporation and others Vs. Kiran Lata and others (1993 ACJ 130 (Rajasthan) ), Khairullah and another Vs. Anita and others (1994 ACJ 1017 (Andhra Pradesh), Jaga Nath and another Vs. State of Himachal Pradesh and others (1998 ACJ 908 H.P.) and Shri T.C. Bhatia Vs. Oriental Insurance Co. Ltd and others (1999 (1) Shim.L.C. 427(H.P.). 8. Kiran Lata and others (1993 ACJ 130 (Rajasthan) ), Khairullah and another Vs. Anita and others (1994 ACJ 1017 (Andhra Pradesh), Jaga Nath and another Vs. State of Himachal Pradesh and others (1998 ACJ 908 H.P.) and Shri T.C. Bhatia Vs. Oriental Insurance Co. Ltd and others (1999 (1) Shim.L.C. 427(H.P.). 8. The learned counsel in support of the cross-objections submitted that the monthly dependency determined by the Court below at Rs.833/-to estate of the deceased is at the lower side and it ought to have been Rs.1500/- per month as the deceased before her death was not spending much amount on herself and she was spending a large amount of her salary on the house hold affairs whereas the claimant was spending his salary on the construction of the house which has been proved by him in his evidence. 9. According to the learned counsel for the claimant the multiplier of 18 is proper in view of the age of the deceased who was about 26 years at the time of the death and, therefore, the amount of compensation deserves to be enhanced. 10. In order to appreciate the rival contentions of the learned counsel on either side, we have proposed to re-appraise the entire evidence on record. The earliest version in respect of accident was contained in the F.I.R. Ext. PC registered at about 10.30 p.m. on 19.4.1989 on the basis of the statement made under Section 154 Cr.P.C. by PW. Mohammad Yusaf the alleged eye witness. In his statement PW. Mohammad Yusaf stated that at about 6 p.m. when he war standing in the courtyard of his house and making preparations to render Namaz, he saw tractor No.2262 being driven by appellant coming from Peepliwala side and his son Shri Yogesh Buja was also with the appellant in the tractor. Smt.Vijay Kumari was coming towards the house of this witness on her left hand side on the road. According to the version of this witness, the tractor was being driven by the appellant in a very fast speed and when it reached near Smt.Vijay Kumar, it struct against her as a result of which she fell on the ground on one side of her road. The appellant did not stop the tractor and went ahead even despite the fact that the witness asked the appellant to stop. The appellant did not stop the tractor and went ahead even despite the fact that the witness asked the appellant to stop. The witness raised alarm as a result of which Master Laxmi Chand, his wife Smt. Kanta and various other persons came to the spot and at that time Smt.Vijay Kumari was having some breath left in her body and she was taken by Master Laxmi Chand etc. to his house but she breathed her last on the way. According to this witness, the accident was the direct and proximate result of the rash and negligent driving on the part of the appellant who alongwith his son fled-away from the place of the accident after causing the accident. PW. ASI Sh. Ram Lai reached at the spot and prepared sketch map of the place of occurrence marked Ext.PW-6/A. According to him, the investigation revealed that the accident had taken place on account of rash and negligent driving on the part of the appellant. 11. The evidence of PW. Mohammad Yusaf was recorded by the Tribunal for the first time on 20.10.1989 prior to his examination in the criminal Court in the case registered against the appellant and he corroborated the version contained in the F.I.R. ExtPC. However, it was found that in the criminal case the witness turned hostile and made some contracdictory statement. It appears that some proceedings were initiated by the appellant and this Court directed the Tribunal to re-call PW. Mohammad Yusaf for re-examination. The witness was recalled and cross-examined on 09.04.1992 by both the parties and he has again reiterated that deceased Smt.Vijay Kumari was coming to his house at the relevant point of time to return the implements which were taken from him for the construction of her new house. He also admitted that immediately after the accident the appellant had run away from the spot after leaving the tractor there. A close scrutiny of the evidence of this witness, it would go to show that he saw the accident in which the deceased was hit by the tractor of the appellant due to rash and negligent driving of the vehicle. 12. Dr.Rajeev Kumar (PW-2) had performed autopsy on the dead body of Smt.Vijay Kumari and submitted on record post mortem report Ext. P-1. 12. Dr.Rajeev Kumar (PW-2) had performed autopsy on the dead body of Smt.Vijay Kumari and submitted on record post mortem report Ext. P-1. According to the opinion of the doctor, Smt.Vijay Kumari died due to head injury and internal haemorrhage (Asphyxia and collapse lungs and cardio arrest) and such injuries were opined possible in a vehicular accident. 13. The appellant appeared as RW-1 and examined one Rafiq as RW-2 and his son Yogesh Kumar RW-3. These witnesses had repeated the version of the appellant regarding deceased Smt.Vijay Kumari having been entrapped in the rope of the Buffalo Calf and sustaining injuries by failling on the road. The appellant also placed on record copy of the judgment in a criminal case marked Annexure R-1 in which claimant and others were accused and the appellant was a prosecution witness. It was contended by the appellant that the claimant had instituted the present claim petition by involving the appellant in a criminal case arising out of the alleged accident on account of previous litigation and enmity and since the appellant had been acquitted by the Criminal Court, the present claim petition had to be dismissed. 14. The defence of the appellant was not found plausible by the Tribunal below for the reason that from the record the metalled portion of the road at the place of the accident was two metres and forty centimetres wide and the Katcha brims on the side of the road were one metre and thirty centimetres on the left side and one metre and sixty five centimetres on the right side. Thus, the total width of the road including Pacca and Katcha was about five metres which could be said to be fairly wide. It has come on the record that there was no vehicular traffic on the road at the place of the accident at the relevant time, except the tractor belonging to the appellant. The appellant has not been able to prove his defence by disclosing the name of the owners of the Buffalo Calf which according to him was the cause of the death of Smt.Vijay Kumari. The witnesses examined by the appellant have given different versions about the defence. The appellant has not been able to prove his defence by disclosing the name of the owners of the Buffalo Calf which according to him was the cause of the death of Smt.Vijay Kumari. The witnesses examined by the appellant have given different versions about the defence. No suggestion was put to the doctor as to whether the injuries sustained by Smt.Vijay Kumari could have been caused if the deceased was entrapped with the rope of the Buffalo Calf and sustaining injuries with the implements being carried by her and also by falling on the ground. We see no reason to dis-believe the version of PW.Mohammad Yusaf before the Tribunal below and his first version given in the F.I.R. Ext. PC which finds corroboration from the evidence of the investigating Officer. There is no explanation given by the appellant as to why he had fled away from the scene of the occurrence after the accident if he was not responsible for the cause of the accident. The Tribunal below has appreciated the evidence and recorded the finding that the accident had occurred due to rash and negligent driving of the tractor by the appellant and we find no cogent reason to interfere with the findings of the Tribunal on the question of rash and negligent driving of the tractor by the appellant causing the accident and resulting the death of Smt.Vijay Kumari. 15. Now the next question is whether theTribunal has rightly assessed the amount of compensation granted in favour of the claimant and whether the claimant was entitled for the amount of compensation being dependent of the deceased. The age of Smt.Vijay Kumari was proved on record by Shri Sunder Lat, Asstt. Block Primary Education Officer, Paonta Sahib who appeared as PW-3 and stated that from the official record the date of birth of Smt.Vijay Kumari was 06.12.1960. The accident admittedly had taken place on 19.04.1989. The age of the claimant at the time of recording of his evidence was 33 years. Salary certificate of the deceased was also produced on record marked Ext.PB and according to the salary certificate, i the deceased before her death was getting Rs. The accident admittedly had taken place on 19.04.1989. The age of the claimant at the time of recording of his evidence was 33 years. Salary certificate of the deceased was also produced on record marked Ext.PB and according to the salary certificate, i the deceased before her death was getting Rs. 1833/- per month as salary, j According to the claimant who appeared as PW-1, his wife used to spend Rs.10/- daily as fare for going and coming back from the school and her total monthly personal expenses were said to be Rs.400-500. The Tribunal has determined the personal expenses of the deceased at Rs.1,000/- per month on account of her spending Rs.300/- per month on fare for going and coming back from the school, on her food, clothings and other personal essential articles keeping in view her status as a J.B.T. Teacher in H.P. Education Department. The claimant himself is employed and his salary was found to be Rs.1,800/- per month. The fact that the compensation in respect of the death of the deceased Smt.Vijay Kuamri is being paid in lumpsum and keeping in view all the factors that in future there was possibility of children having been born and thereby the loss to the estate could have been reduced, the quantum of compensation has to be fixed in a manner which may not amount to a windfall to the claimant. Accordingly, in the facts and circumstances of the case on hand, we are of the j considered view that the multiplier of 16 is just and reasonable the present case. Thus, we reduce the amount of compensation awarded by the tribunal below from Rs.1,80,000/- to Rs.1,60,000/-. 16. In the decisions cited by the learned counsel for the claimant that the husband will not be entitled for compensation for the death of his first wife he has contracted second marriage or the widow of the husband after re-marriage will not be entitled for compensation as dependent cannot be applied as a principle of law in the case on hand. A division Bench of this Court in Jagar Nath and another Vs. A division Bench of this Court in Jagar Nath and another Vs. State of Himachal Pradesh and others (1998 ACJ 908) held that the widow of a workman after re-marriage is not dis-entitled from getting compensation under the Workmens Compensation Act, 1923 as the eligibility is seen at the time of the death of the workman and subsequent events like re-marriage having no bearing. In Khairullah and another Vs. Anita and others (1994 ACJ 1017), the learned Single Judge of the Andhra Pradesh High Court held that re-marriage will not debar the widow from her right to claim compensation for the reason that when the Tribunals award was passed she had not remarried and even if there was remarriage it could not be taken as a ground to refuse compensation to her. Similar view was taken by learned Single Judge of Punjab and Haryana High Court in Behari Lal Sharma and others Vs. State of Punjab and others (1992 ACJ 831) and by learned Single Judge of the Rajasthan High Court in Vimla Devi and others Vs. Chaman and others (1992 ACJ 1048). In Rajabi and another Vs. Oriental Fire & General Insurance Co. Ltd. (1981 ACJ. 374), the learned Judges of the Division Bench in a case of fatal accident held that in India social conditions require that principle of sounding prospects of remarriage in terms of money for purposes of deduction in the quantum of compensation awardable to the widow should be applied with caution and circumspection. As noticed by us, in vehicular accident cases it is not the amount of compensation awarded to the dependent, the amount has to be awarded just and reasonable to the legal representatives/heirs of the deceased on account of loss to the estate of the family and, therefore, the amount of compensation awarded in the present case is on account of loss to the estate and not in the nature of dependency of the claimant upon his deceased wife. In the present case, the marriage between the claimant and Smt. Vijay Kumari was solemnised in the year 1986 and she died on 19.04.1989 in the alleged accident. In the present case, the marriage between the claimant and Smt. Vijay Kumari was solemnised in the year 1986 and she died on 19.04.1989 in the alleged accident. According to the averments of the appellant made in CMP.No.438/99 the claimant remarried on 16.10.1995 and his second wife is also said to be equally educated and qualified and employed in Govt.service drawing handsome salary, if the averment made { by the claimant in the application is accepted, even then the claimant got remarried after about six years of the death of his first wife. The factum of the claimant re-marrying does not dis-entitle the claimant to receive the compensation for the loss of the estate caused to the family due to the death of first wife at the prime age in the accident. The submissions of the learned counsel for the appellant noticed above are not sustainable. The claim of the claimant in his cross-objections seeking enhancement of the amount of compensation on the ground noticed above does not find favour with us for the reasons and discussions stated in the earlier part of the judgment. No other point has been urged by the learned counsel on either side. 17. Consequently, for the above stated reasons the appeal is accepted in part and a sum of Rs.1,60,000/- is awarded in favour of the claimant and against the appellant alongwith interest @12% per annum from the date of the institution of the claim petition ke.04.50.1989 till the date of payment or deposit in the Registry Office. The award of the Tribunal below shall stand modified to the extend indicated above. Cross objections are/dismissed. CMP.No.438/99 shall stand disposed of. Costs on parties.