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2004 DIGILAW 355 (HP)

PIARI DEVI v. H. R. T. C.

2004-12-28

DEEPAK GUPTA

body2004
JUDGMENT Deepak Gupta, J.: This appeal under Section 173 of the Motor Vehicles Act, is directed against the award of the MACT(II), Solan in MAC Petition No. 14-NL/2 of 2002 decided on 2.4.2004 whereby he has awarded a sum of Rs. 61,800/- in favour of the claimants. 2. The admitted facts of the case are that the deceased Amin Chand, was the husband of appellant No. 1 and father of appellants No. 2 and 3. He met with an accident on 22.4.2004 at about 7.45 p.m. when he was alighting from Bus No. HP-14-4103. The Tribunal on the point of negligence held that the deceased was equally negligent and had contributed towards the accident. The Tribunal has come to the conclusion that the earning of the deceased was about Rs. 1600/- per month and has assessed dependency at Rs. 19,200/- per annum and by applying the multiplier 8 assessed the compensation to Rs. 1,13,600/-. In addition, the Tribunal awarded Rs. 10,000/- as conventional charges and the total amount of compensation payable was Rs. 1,23,600/-. In view of the contributory negligence of the deceased, the Tribunal has awarded a sum of Rs. 61,800/- to the claimants No. 1 and 2 only. 3. Mr. Sanjeev Kuthiala, learned Counsel appearing on behalf of the claimants has vehemently contended that the Tribunal has gravely erred in holding that the deceased had contributed to the accident by jumping out from the running bus. He has also contended that income of the deceased should be taken atleast Rs. 500/- per month and the compensation should be assessed on this basis only. 4. Firstly, taking up the issue of negligence. Mr. Kuthiala, learned Counsel has referred to the statement of PW3 Siri Ram. This witness has stated that he was also travelling in the bus in question. When the bus had stopped, one or two persons had already got down from the bus and the deceased Amin Chand was in the process of getting down from the bus when it suddenly started moving and the deceased fell down and was crushed under the rear tyre of the bus. In cross-examination, the witness has denied the suggestion that the deceased was drunk and jumped out of the running bus. 5. On behalf of the respondents, only the driver appeared in the witness box. In cross-examination, the witness has denied the suggestion that the deceased was drunk and jumped out of the running bus. 5. On behalf of the respondents, only the driver appeared in the witness box. He states that he had not stopped the bus and when it had just reached near the Prakash Dhaba, the deceased jumped out from the running bus. According to this witness, the accident had occurred due to negligence of the deceased. There is no other evidence with regard to the manner in which the accident had occurred. The driver in his cross-examination has expressed his ignorance as to how the deceased had jumped out from the bus. Mr. Kuthiala learned Counsel has also relied upon the FIR which is Ex. PW1/A. The mere exhibition of the FIR is no proof of the contents thereof especially when the person on whose statement the FIR was recorded has not been examined as a witness. In any event, the contents of the FIR are very ambiguous though in the concluding portion, it is stated that the accident had occurred due to negligence of the bus driver. 6. The deceased was accompanied by PW-3 who has made an unambiguous statement with regard to the cause of accident. It is no doubt true that the driver has refuted the statement but there is nothing to belie the statement of PW3. Furthermore, it was incumbent upon the HRTC to have examined the Conductor of the bus who was the best person to depose as to whether he had blown the whistle for stopping the bus or not; and whether deceased had jumped out from the running bus. In the absence of such evidence, an adverse inference shall have to be drawn against the HRTC. Therefore, the findings of the learned Tribunal is set aside and the contention of the appellants is accepted and it is held that the accident had occurred due to rash and negligent driving of the driver of the bus. 7. Coming to the issue of compensation amount, the main stress of Mr. Kuthiala learned Counsel was that the deceased was of 50 years old and that since he owned about 30-35 bighas of land and was also doing the business of selling milk, his income should be taken atleast Rs. 500/- per month. 7. Coming to the issue of compensation amount, the main stress of Mr. Kuthiala learned Counsel was that the deceased was of 50 years old and that since he owned about 30-35 bighas of land and was also doing the business of selling milk, his income should be taken atleast Rs. 500/- per month. With regard to the age of the deceased, it is no doubt true that in the claim petition, deceaseds age is stated as 50 years. However, PW2 Smt. Piari Devi appellant-claimant No. 1 who is the wife of the deceased has stated that her age is 50 years. However, she has not stated a word about the age of the deceased. She has in her cross-examination admitted that the appellant-claimant No. 2 is aged about 30 years and appellant-claimant No. 3 is 40 years old once she has admitted that the age of her daughter was about 40 years, it can safely be presumed that the age of the deceased must be more than 58 years PW3 in his statement has stated that he is about 80 years and that Amin Chand deceased was about 15-20 years younger than him. If it is so, then the age of Amin Chand deceased was in between 60-65 years at the time of accident. In the postmortem report the age of Amin Chand deceased has been mentioned as 58 years. Therefore, the Tribunal has rightly taken the age of the deceased as 58 years. 8. No cogent proof has been given about the income of the deceased. Only the widow - claimant No. 1 has appeared as PW2 and stated that her husband was earning Rs. 50,000/- to Rs. 60,000/- per annum from agriculture and Rs. 150/- per month by selling the milk. 9. As regards the agriculture income, the jamabandi of the land has been produced on the record which shows that the total land holding of the deceased was about 23 bighas. This land has been inherited by claimants. Regarding income from sale of milk, there is no other proof except a bald statement of the claimant which cannot be accepted at its face value. No evidence was led as to whom the milk was sold and how many cows and buffalos were being maintained by the deceased or any other record with regard to the sale of milk. Regarding income from sale of milk, there is no other proof except a bald statement of the claimant which cannot be accepted at its face value. No evidence was led as to whom the milk was sold and how many cows and buffalos were being maintained by the deceased or any other record with regard to the sale of milk. The deceased was aged almost 60 years and could not be expected to do much manual work. He had a son aged about 30 years. It is also in the evidence that the widowed daughter appellant No. 3 aged 40 years was living with him. In view of the fact that there were three younger family members residing with the deceased, it cannot be accepted that it was the deceased alone who was looking after and maintaining the whole property. Claimants No. 2 and 3 have not been stepped into the witness box in support of their claim. 10. Keeping in view all these facts, the income of the deceased can be assessed to be about Rs. 2000/- per month which would be approximately equivalent to hiring a labourer to work for about 25 days on the land if the income is taken as Rs. 2000/- per month, the dependency is to be taken at 50% or Rs. 1000/- since in my view only appellant No. 1 Piari Devi widow of the deceased can be said to be dependent upon the decease. The son Bir Chand is a young man of 30 years, and daughter Smt. Kaushalya Devi is aged 40 years and cannot be said to be dependent upon their father. No evidence has been led to prove this fact. Taking the dependency of Rs. 1000/- per month or Rs. 12000/- per annum and applying the multiplier of 8, the compensation payable works out to Rs. 96,000/-. In addition, the appellant No. 1 is held entitled to Rs. 5000/- for loss of consortium and Rs. 5000/- for funeral expenses and loss of estate etc. and thus the total amount payable to the appellant No. 1 alone comes to Rs. 1,06,000/-. 11. The appeal is accordingly allowed. The award of the learned Tribunal is modified and it is held that the appellant No. 1 alone is entitled to the entire amount of compensation amounting to Rs. 1,06,000/-. and thus the total amount payable to the appellant No. 1 alone comes to Rs. 1,06,000/-. 11. The appeal is accordingly allowed. The award of the learned Tribunal is modified and it is held that the appellant No. 1 alone is entitled to the entire amount of compensation amounting to Rs. 1,06,000/-. She is held entitled to interest at the rate of 9% per annum on the said amount from the date of institution of the petition that is 10.6.2002, till the date of payment thereof. The HRTC is directed to deposit the enhanced amount of compensation along with interest in the Registry of this Court on or before February 29, 2005. On deposit of the amount, the same shall be remitted to the bank account of appellant No. 1, particulars whereof shall be supplied by the learned Counsel on or before the abovesaid date. 12. The appeal is accordingly disposed of.