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Rajasthan High Court · body

2006 DIGILAW 264 (RAJ)

Ramkanya v. R. S. R. T. C.

2006-01-25

DINESH MAHESHWARI

body2006
Judgment Dinesh Maheshwari, J.-These four appeals submitted against the common award dated 26.05.2000 made by the Motor Accidents Claims Tribunal, Chittorgarh in two Claim Cases relating to the same accident and involving common questions of law and facts were heard together and are being disposed of by this common Judgment . 2. Claim Applications No. 230/1997 and No. 231/1997 were submitted respectively seeking compensation on account of the death of Gopal Lal Vyas and Shanti Prakash Ramchandani in a vehicular accident involving a Bus (RJ-03/528) and a Jeep (MH-15 TR/756). The deceased were the occupants of the jeep and they succumbed to the injuries sustained in the accident on the spot. The status of the parties in these cases is as follows:- (i) Smt. Ramkanya, Abhishek and Kumari Archna are respectively the wife, son and daughter of the deceased Gopal Lal Vyas and are the claimants in Claim Case No. 320/1997 (relating to CMA Nos. 419/2000 and 667/2000). (ii) Smt. Maya, Kumari Leena, Kumari Neeta, Kumari Maneka and Master Jitendra are respectively the wife, daughter and son of the deceased Shanti Prakash Ramchandani and are the claimants in Claim Case No. 231/1997 (relating to CMA Nos. 420/2000 and 666/2000). (iii) Inboth the claim cases, initially the Rajasthan State Road Transport Corporation, its General Manager at Banswara, and its Driver Saiyed Hussain Hasim were arrayed as the non-applicants No. 1, 2 and 3 being the owners and driver of the offending Bus. However, on an application submitted on behalf of the non-applicants, the claimants agreed for impleadment of the owner and insurer of the jeep involved in the accident, and accordingly, an amended claim application was submitted on 08.06.1998 impleading Mahindra and Mahindra Limited through Ashok Kishan Upsunde, owner of the authorised transport contractor as non-applicant No. 4, Mahindra and Mahindra Automotive Sector, Jaipur as non-applicant No. 5, and the United India Insurance Company as non-applicant No. 6. 3. The Tribunal partly accepted the claim applications and awarded compensation of Rs. 6,25,000/ - in Claim Case No. 230/1997 and Rs. 7,35,000/-in Claim Case No. 231/1997 against the non-applicants No. 1 to 3. The Corporation has preferred appeals in both the claim cases, being CMA Nos. 3. The Tribunal partly accepted the claim applications and awarded compensation of Rs. 6,25,000/ - in Claim Case No. 230/1997 and Rs. 7,35,000/-in Claim Case No. 231/1997 against the non-applicants No. 1 to 3. The Corporation has preferred appeals in both the claim cases, being CMA Nos. 667/2000 and 666/2000 respectively, challenging the findings of the Tribunal on rash and negligent driving of the Bus driver and asserting that at any rate it was a case of composite negligence and the liability deserves to be apportioned between the Corporation and the insurer of the Jeep. Quantum of compensation has also been assailed as being excessive. The claimants, on the other hand, have submitted respective CMA Nos. 419/2000 and 420/2000 seeking enhancement of compensation. Background Facts and Pleadings 4. Brief facts relevant for determination of the questions involved in these cases are that the accident in question occurred on 24.07.1997 at 4:30 PM on Chittorgarh-Bhilwara road near Jojro-ka-khera. Narrating the accident, the claimants submitted that the deceased were travelling in a new Jeep bearing registration No. MH-15 TR/756 of Mahindra Company with their colleagues Brij Mohan Gupta, Sushil Kumar Mittal, Nemi Chand Jain and Ramesh Chand Sharma and were going to Bhilwara from Chittorgarh. After the Jeep had crossed Jojro-ka-khera, a roadways bus bearing registration No. RJ-03/528 coming from Bhilwara was brought driven by the non-applicant No. 3 rashly and negligently that forcefully hit the Jeep which resulted in three persons dying on the spot; the Jeep was swept to a nearby field and the driver of the Jeep also succumbed to the injuries while undergoing treatment. In the original claim application, the liability for compensation was stated against the non-applicants No. 1, 2 and 3 only. However, in the amended claim application it was stated in the alternative that if there be any contribution of the Jeep driver to the accident, then the non-applicants No. 4 to 6 be directed to bear their part of damages. 5. In Claim Case No. 230/1997, the claimants averred that the deceased Gopal Lal Vyas was 41 years and 6 months of age and was working in the Rajasthan State Electricity Board, Chittorgarh as Junior Accountant; his last drawn salary was Rs. 5,955/-per month; he used to contribute Rs. 5,000/-to the family and would have served till the age of 58 years and would have further contributed even after retirement. 5,955/-per month; he used to contribute Rs. 5,000/-to the family and would have served till the age of 58 years and would have further contributed even after retirement. Therefore, the claim for pecuniary loss was stated at Rs. 12,48,000/-. Further Rs. 1,00,000/-were claimed as loss of consortium for the wife and Rs. 2,00,000/-for the loss of love and affection and guidance for the children. Rs. 30,000/-were claimed towards funeral expenses; Rs. 1,000/-towards transportation charges; and Rs. 3,000/-for the loss of property of the cash amount in the pocket of the deceased and his wrist watch. Therefore, a claim of Rs. 15,82,000/-was lodged against the non-applicants. 6. In Claim Case No. 231/1997, the claimants averred that the deceased Shanti Prakash Ramchandani was 46 years and 10 months of age and he was also working as Junior Accountant with the Rajasthan State Electricity Board, Chittorgarh; his monthly salary was Rs. 6,855/-his contribution to the family was of Rs. 6,000/- per month; and with his 11 years of service tenure left and with further future likely contribution, a claim of Rs. 12,24,000/-was stated towards pecuniary loss. Further, Rs. 1,00,000/-were claimed as loss of consortium for the wife; Rs. 4,00,000/-for the loss of love and affection and guidance for the children; Rs. 30,000/-towards funeral expenses; Rs. 1,000/-towards transportation charges; and Rs. 3,500/-towards loss of property comprising of Rs. 1,500/-as cash in pocket of deceased and Rs. 2,000/-being the cost of wrist watch. Therefore, in all a claim of Rs. 17,58,500/-was stated against the non-applicants. 7. Separate replies to the claim applications were submitted; one on behalf of the Corporation and its driver; and another on behalf of the insurer of the Jeep. The insurer of the Jeep while stating general denial of the claim averments submitted that the insurer has undertaken only the transit insurance of taking the new vehicle to its Jaipur Agent and no occupant of the vehicle was insured nor any premium was charged, therefore, the insurer was not liable for compensation on account of death of the said occupants of the Jeep. However, it was submitted that from the papers of the criminal case and even from the averments in the claim application, it was clear that the accident was squarely a result of the negligence of the roadways Bus driver and there was no contribution of the Jeep driver and, therefore, interim compensation under Section 140 of the Act was obtained only from the Roadways Corporation. It was stated regarding the accident that the driver of the Jeep was very slowly proceeding from Chittorgarh to Bhilwara and from the opposite direction up came the uncontrolled roadways Bus; the Jeep driver blew the horn and took the jeep even to the foot-path side yet the bus hit the Jeep, therefore, death of any person resulting from the injuries sustained in the accident was entirely the responsibility of the Bus driver. It was also stated that the Jeep driver was not having valid driving licence. 8. The owners and driver of the bus in their reply admitted the occurrence and admitted that the non-applicant No. 3 was challenged under Sections 279, 337, 338 and 340-A of the Indian Penal Code but it was asserted that the challan was wrongly filed and that the occurrence was the result of rash and negligent driving by the Jeep driver. It was alleged that the Jeep driver while driving the Jeep rashly and negligently, hit a trailer-truck running ahead of him and because of loosing balance collided with oncoming Bus. It was also suggested that the Jeep driver had been driving rashly, and earlier in the day hit a tempo at Javra and settled the matter after payment of Rs. 700/-to the Tempo driver; and yet again the same day, the same driver had another brush with M.P. State Roadways Transport bus hear village Dhodhar. It has been averred in the additional pleas that the jeep first hit the trailer, then the Jeep driver, who was driving rashly and negligently lost control because of speed and, therefore, hit the Bus coming from Bhilwara which was standing on its correct side and then the Jeep landed in a field 200 ft. away and that the accident was caused solely for the fault of the Jeep driver. Issues and Evidence 9. Both the claim cases aforesaid were consolidated for trial on 29.04.1999 and the following issues were framed:- 10. In oral evidence, the claimant Ramkanya was examined as AW. away and that the accident was caused solely for the fault of the Jeep driver. Issues and Evidence 9. Both the claim cases aforesaid were consolidated for trial on 29.04.1999 and the following issues were framed:- 10. In oral evidence, the claimant Ramkanya was examined as AW. 1, whereas the other claimant Maya Ramchandani as AW. 2; and the accountant of the State Electricity Board, Chittorgarh R.P. Gupta as AW. 3. On the part of non-applicants, the bus driver Saiyed Hussain Hasim was examined as NAW. 1. In documentary evidence, the claimants produced FIR Exhibit-1, registration certificate of the Bus Exhibit-2, Supurdginama of the bus Exhibit-3, Salary certificate of Gopal Lal dated 05.08.1997 Exhibit-4, Charge sheet Exhibit-5, Site inspection Report Exhibit-6 driving licence of bus driver Exhibit-7 fitness certificate of Jeep Exhibit-8 driving licence of Jeep driver Exhibit-9, temporary certificate of registration of jeep Exhibit-10, postmortem report of Gopal Lal Exhibit-11, invoice of Jeep Exhibit-12, Supurdginama of Jeep Exhibit-13, pay fixation certificate of Gopal Lal dated 03.04.1999 Exhibit 14, postmortem report of Shanti Prakash Ramchandani Exhibit 15, salary certificate of Shanti Prakash Exhibit-16 and pay fixation certificate of Shanti Prakash dated 03.04.1999 Exhibit-17. Findings and Award by the Tribunal 11. After evidence of the parties, learned Judge of the Tribunal proceeded to decide issues No. 1, 4 and 7 together, all relating to the aspects of responsibility towards the accident and after referring to the evidence produced on record, the learned Judge found that the accident occurred in the middle of the road and that the explanation offered by the Bus driver Saiyed Hussain Hasim of rash and negligent driving of the Jeep driver could not be accepted. From the statements of AW. 1 and AW. 2 and the first information report Exhibit-1, site inspection report Exhibit-6 and the charge-sheet Exhibit-5 and so also the postmortem reports Exhibit-11 and Exhibit-15, it was found proved that the accident in question was caused on account of rash and negligent driving of the Bus RJ-03/528 and for its hitting the Jeep MH-15 TR/556 which resulted in the death of Gopal Lal and Shanti Prakash. Issue No. 5 relating to the driving licence of the Jeep driver was decided against the insurer when it was found with reference to Exhibit-9 that the driver had a valid driving licence and no evidence was led by the insurer. Issue No. 5 relating to the driving licence of the Jeep driver was decided against the insurer when it was found with reference to Exhibit-9 that the driver had a valid driving licence and no evidence was led by the insurer. On issue No. 6, the question was about the extent of liability of the insurer with reference to transit insurance and the learned Judge observed that the Jeep was insured only for a transit insurance and was not insured for any passenger but then, with reference to Section 147(2) of Act and the decision of the Honble Supreme Court in New India Assurance Company vs. Satpal Singh, 2000 DNJ (SC) 62, it was held that the insurer was liable for the death or bodily injury to any person in the accident. However, it was observed that there was no contribution of the Jeep driver in the accident, therefore, there was no liability of the insurer to make any payment. 12. Taking up quantification of compensation in case No. 230/1997, learned Judge took the salary of deceased Gopal Lal at Rs. 6,837/-per month as fixed under revised pay scale; and after deducting 1/3rd for personal expenses of the deceased, calculated the dependency at Rs. 4,558/- per month i.e., Rs. 54,696/-per annum; applied the multiplier of 11 and arrived at a figure of Rs. 6,01,656/-rounded off to Rs. 6,00,000/-towards the loss of dependency. The learned Judge further allowed Rs. 10,000/-to the wife of the deceased as loss of consortium; Rs. 5,000/-to each child towards loss of love and affection; and Rs. 5,000/-towards funeral expenses. Other claims were disallowed and the claimants were held entitled to a compensation amount of Rs. 6,25,000/-. 13. In Case No. 231/1997, the income of deceased Shanti Prakash was accepted at Rs. 7,995/-per month as fixed under the revised pay scale and deducting 1/3rd for personal expenses of the deceased, the dependency was taken at Rs. 5,334/-per month i.e., Rs. 64,000/-per annum; and applying the multiplier of 11, a sum of Rs. 7,00,000/-was calculated towards loss of dependency. Further, Rs. 10,000/-were allowed to the wife of the deceased as loss of consortium; Rs. 5,000/-to each child towards loss of love and affection; and Rs. 5,000/-towards funeral expenses and, therefore, the said claimants were held entitled to a compensation amount of Rs. 7,35,000/- 14. 7,00,000/-was calculated towards loss of dependency. Further, Rs. 10,000/-were allowed to the wife of the deceased as loss of consortium; Rs. 5,000/-to each child towards loss of love and affection; and Rs. 5,000/-towards funeral expenses and, therefore, the said claimants were held entitled to a compensation amount of Rs. 7,35,000/- 14. In both cases, the claimants were awarded interest at the rate of 12% per annum from the date of amended claim application i.e., 08.06.1998. After deducting Rs. 50,000/-in each case awarded under Section 140 of the Act, the claimants were held entitled to receive the remaining amount from the non-applicants No. 1 to 3 and the claim applications were rejected against the non-applicants No. 4 to 6. Rival stands in appeals 15. The non-applicant No. 1, Rajasthan State Road Transport Corporation has preferred the appeals against the awarded with the submissions that the accident was solely a result of rash and negligent driving of the Jeep driver and the Tribunal has erred in holding the Bus driver to be negligent in this case. While referring to the statements of the bus driver and so also the documentary evidence on record, learned Counsel Mr. L.S. Jodha vehemently contended that the applicants have not produced any eye-witness; and that appreciation of statement of the Bus driver with reference to the site plan makes it clear that the accident was solely a result of extraordinary brisk pace at which the Jeep was being driven; that the accident occurred in the middle of the road and the jeep firstly hit the truck-trailer it was following, lost its balance and then its hood brushed with the driver side of the Bus and the Jeep went totally out-of-control as could be seen from the fact that it landed nearly 200 feet behind the Bus and, significantly, the Jeep landed on its right-hand side; that all the circumstances taken together establish that the accident was clearly on account of the rash and negligent driving of the jeep. Learned Counsel further submitted that in any case it could at the most be a case of composite negligence of both the drivers and in that event too, the liability ought to have been apportioned but the Tribunal was in error in exonerating the Jeep driver, owner and insurer altogether. Learned Counsel further submitted that in any case it could at the most be a case of composite negligence of both the drivers and in that event too, the liability ought to have been apportioned but the Tribunal was in error in exonerating the Jeep driver, owner and insurer altogether. Learned Counsel also submitted that the Tribunal has awarded an exorbitant amount towards compensation and has erred in assessing the income of the deceased at the alleged rate of fixation of salary after revision of pay scale; and that the loss of income ought to have been assessed at the rate the salary was last drawn by the deceased in both the cases. 16. Learned Counsel for the claimants Mr. Manish Pitaliya, on the other hand, submitted that the stand sought to be taken by the Bus driver is self -contradictory as is apparent from the averments taken in the written statement; and that his testimony is not worth reliance when he has made contradictory statements about respective position of the Bus, Jeep and Trailer at the time of accident and, therefore, the Tribunal was not in error in rejecting his testimony. Learned Counsel also submitted that even if it be a case of composite negligence, both the Bus driver and Jeep driver remain joint tortfeasors and, therefore, the claimant is entitled to recover compensation from either of them as both remain jointly and severally liable to the injured. Learned Counsel for the claimants also pressed their appeals for enhancement with the submissions that the multiplier adopted in both the cases is grossly inadequate and even as per Second Schedule to the Act, a multiplier of 15 minimum ought to have provided in the case of Gopal Lal Vyas who was 41 years of age; and of 13 in the case of Shanti Prakash Ramchandani who was 46 years of age. Learned Counsel also submitted that the Tribunal was grossly in error in taking a static figure of salary for the purpose of multiplicand and in not providing for reasonable enhancement towards future prospects as both the deceased were Junior Accountants in Rajasthan State Electricity Board and had every chance of future increments and the multiplicand ought to have been taken as double the amount of last payable salary. 17. Learned Counsel appearing for the insurer of the Jeep, Mr. 17. Learned Counsel appearing for the insurer of the Jeep, Mr. V.K. Vyas submitted that issue No. 4 in this case has rightly been decided against the Corporation as the accident occurred solely on account of the mistake and negligence of the Bus driver and, therefore, there was no liability of the insurer of the Jeep for any compensation. Learned Counsel vehemently opposed the submissions about any contribution of Jeep driver in the accident and submitted that it was not a case of composite negligence as alleged. Learned Counsel of course admitted that the insurer has not produced any evidence regarding the terms and conditions of the insurance policy. 18. The name of Bus driver has been deleted from the array of parties in CMA No. 667/2000 by the order dated 112.2001. However, in other cases, the driver has appeared through Counsel Mr. B.M. Bhojak who has duly supported the submissions made on behalf of the Corporation in these appeals. 19. The rival submissions have been given anxious consideration and the records have been scanned through. Negligence for causing the accident in question 20. From the rival submissions, the first point that arise for determination is about the correctness and legality of the findings of the fault and negligence of Bus driver for the accident in question which has been arrived at by the learned Judge after disbelieving the statement of Bus driver Saiyed Hussain Hasim, NAW-1. 21. Having examined the entire record, this Court is clearly of opinion that the learned Judge was in error in concluding that this accident occurred solely on account of the fault and negligence of the Bus driver. The evidence on record clearly shows and circumstances surrounding the accident clearly speak that such an accident could not have occurred but for equal contribution of the jeep driver. .22. The claimants have not produced any eye-witness and the only first hand account of the incident available on record is the testimony of Bus driver, Saiyed Hussain Hasim NAW.1. However, this witness being the tortfeasor himself , and having been disbelieved by the learned Judge of Tribunal his testimony shall require deeper scrutiny. Before dealing with averments and the statement of NAW. 1 it shall be appropriate to refer to the document Exhibit-6, the site inspection report prepared on 25.07.1997 at 1:00 PM that is, the day next after the accident. Before dealing with averments and the statement of NAW. 1 it shall be appropriate to refer to the document Exhibit-6, the site inspection report prepared on 25.07.1997 at 1:00 PM that is, the day next after the accident. The Police Officer who has prepared the report has readily concluded that the accident was a result of the mistake of roadways driver, but then has stated the following features:- .(1) the road was 25 ft. wide with 5 ft. foot-path on each side. .(2) the accident occurred in the middle of the road; .(3) the accident was horrifying with lot of blood at the site; .(4) the Jeep has gone to the field of Gangaram nearly 100 yards ahead the point of accident on its right hand side; .(5) the dead bodies were lying at opposite side of the road; and .(6) the Roadways Bus was stationed at its side on the road, a few yards ahead the point of impact. 23. A bare look at the report Exhibit-6 is sufficient to find that this accident has not occurred on account of the mistake or negligence of the Bus driver alone. It has not been shown that the roadways Bus driver covered his entire lane an