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2005 DIGILAW 1945 (RAJ)

Sajjan Devi v. Shri Mool Chand

2005-07-28

PRAKASH TATIA

body2005
JUDGMENT 1. - Heard learned counsel for the parties. 2. Brief facts of the case are that an accident occurred on 1st Dec., 1992 and in that accident one Sagan Chand died. Sugan Chard's wife and his son submitted a claim petition before the Motor Accident Claims Tribunal, Bhilwara. The registered owner of the vehicle as well as transferee of the vehicle were impleaded as party non-claimants in the claim petition. The tribunal exonerated the insurance Company from any liability as the vehicle was not insured. The driver of the vehicle was also impleaded as party. The tribunal held that it was the sole negligence of the driver of the vehicle in the accident and, therefore, the driver is liable to pay the compensation and consequently, the registered owner as well as the transferee of the vehicle both are also liable vicariously, jointly, and severally. However, the tribunal awarded interest @ 9% per annum in the award dated 28th Nov., 2000. Hence, the S.B. Civil Misc. Appeal No. 196/2001 has been filed by the claimants for enhancement of the interest form 9% per annum to 12% per annum. 3. The S.B. Civil Misc Appeal No. 285/2001 has been filed by the transferee of the vehicle from the registered owner. According to learned counsel for the appellant the tribunal committed serious error while deciding issue of negligence of the driver of the vehicle. According to learned counsel for the appellant, in fact, it was the sole negligence of the victim himself as he tried to ride on the bus when the bus was running. In fact, a scooter hit victim and the victim fell down and rear wheel of the bus ran over the victim and in the alternative; it is submitted that even if it is held that there was no accident from the scooter even in view of the judgment of the Hon'ble Supreme Court delivered in the case of Mohammed Ayunddin Alias Miyam v. State of Andhra Pradesh reported in AIR 2000 Supreme Court 2511 , the driver cannot be held responsible in such circumstances when any person tried to ride the bus when bus is in movement. Learned counsel Sh. Sachin Acharaya appearing on behalf of the transferee from registered owner of the vehicle tried to submit that the amount awarded by the tribunal is on very higher side. Learned counsel Sh. Sachin Acharaya appearing on behalf of the transferee from registered owner of the vehicle tried to submit that the amount awarded by the tribunal is on very higher side. According to both the counsel, the salary certificate produced by the claimants of the deceased, has not been proved and there is no proof of income of the deceased. It is also submitted that even if the salary given in the salary certificate is accepted to be true then the tribunal without any reason assessed the income of the deceased as Rs. 2500/- despite the fact that the claimants produced salary certificate for Rs. 1859/- only. Learned counsel for the owner of the vehicle also submitted that the deceased was on the age of 54 years and was to retire after four years only. Therefore, the tribunal has wrongly applied multiplier of 10. 4. I considered the submissions of learned counsel for the parties and perused the record also. So far as award of interest @ 9% per annum is concerned, the reason may not by sufficient, but the fact remains is that in the light of the subsequent judgments of the Hon'ble Supreme Court, the interest could have been only 9% per annum. Therefore, I do not find any merit in the appeal preferred by the claimants for enhancement of the interest from 9% to 12%. 5. So far as contention of learned counsel Sh. Sachin Acharaya appearing for the transferee that the liability of the entire amount should have been fastened upon the registered owner is concerned, that argument is contrary to law laid down by the Hon'ble Apex Court as the Hon'ble Apex Court held in the cases that registered owner as well as the transferee both are liable to pay the compensation to the claimants as the vehicle stand sold to transferee on payment of consideration to the transferor by the transferee. The registered owner is also liable to pay the compensation as he is deemed owner under the provisions of the Motor Vehicle Act till the registration is transferred in the name of transferee. 6. In view of the above, the contention of learned counsel for the appellant that the tribunal should have fastened the liability only upon the registered owner cannot be accepted. 7. 6. In view of the above, the contention of learned counsel for the appellant that the tribunal should have fastened the liability only upon the registered owner cannot be accepted. 7. So far as allegation of contributory negligence is concerned, the facts reveal that the bus was in fact, in a market area and furthermore the accident occurred at a turn where the driver should not have driven the vehicle with such a fast speed that any person can meet with accident in the manner in which the accident occurred in the case. Learned counsel for the appellant has shown the site map (Ex. 5), which also supports the income given by the Motor Accident Claims Tribunal rather to the appellant. Therefore, I do not find any error of fact in tribunal's holding that is was sole negligence of the driver of the bus. 8. The judgment relied upon by learned counsel for the appellant delivered in the case of Mohammed Ayunddin (supra) it is clear that the Hon'ble Supreme Court held that merely because a passenger fell down from the bus while boarding it presumption of negligence cannot be drawn against the bus driver. There is no quarrel about it, but in the present it has been shown by evidence that there was negligence of the driver of the vehicle and because of that only the passenger died while boarding the bus. Here in this case as stated above, the driver of the bus driven the bus with fast speed at turn that too, in market area. Therefore, the circumstantial evidence also suggests that it was the fault of the driver of the bus and not of the victim, who tried to ride the bus. Apart from it, it will be worthwhile to note that the judgment of the Hon'ble Supreme Court was delivered in a criminal case where the Hon'ble Supreme Court held that conviction of the driver of the offence is unsustainable. In the Civil Cases, the cases are decided on the basis of preponderance of probabilities and, therefore, in the facts of this case, the judgment of the Hon'ble Supreme Court referred above, is of no help to the appellant. 9. So far as quantum awarded by the tribunal is concerned, it is clear that the victim was in service of the Municipal Council. His salary certificate has been placed on record containing salary of Rs. 9. So far as quantum awarded by the tribunal is concerned, it is clear that the victim was in service of the Municipal Council. His salary certificate has been placed on record containing salary of Rs. 1859/-. He was of the age of 54 years. The tribunal awarded total compensation of Rs. 2,19,000/- only. Assuming for the sake of argument that the tribunal has increased the salary of the victim by taking into account the future prospects and the tribunal has assessed the income somewhat more arithmetical, but the conclusion has not resulted into awarding of compensation on higher side in any manner. The multiplier of 10 was applied and the victim was in the service and he was entitled for the retiral benefits, which includes pension for himself and his family members till his life. The pension, which may be allowed to the dependents of the victim was certainly less than which deceased would have given if he would be survived. The total amount as awarded is only Rs. 2,19,000/-, therefore, I do not find any reason to interface in the compensation awarded to the claimants, particularly, in view of the fact that rate of interest is also awarded to the claimant @ 9% per annum only. 10. In view of the above, I do not find any force in both the appeals and the same are dismissed.Appeals dismissed. *******