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2006 DIGILAW 300 (CHH)

SHIV KUMAR v. PRITHVIPAL SINGH

2006-05-10

D.R.DESHMUKH, S.R.NAYAK

body2006
ORDER Shri D.R. Deshmukh,J. :- 1. In this appeal by the claimants who are the wife and relatives of the deceased-Kejuram, the following points arise of consideration :- (i) whether the deceased-Kejuram was travelling as a gratuitous passenger in the truck at the Time of the accident or not? (ii) whether there was actionable negligence on the part of the driver of the truck? (iii) whether the compensation awarded by the Tribunal is just and reasonable compensation in the facts and circumstances of the case? 2. Brief facts as alleged by the claimants in their application before the learned M.A.C.T. is that on 21st June 1994"the deceased-Kejuram, a grain merchant, had gone to village Hardi on his motor cycle which got punctured. He was standing by the side of the road and waved for lift to the on-coming offending truck to come to a standstill. In that process the driver of the truck applied the brakes, due to which, the side tyre of the truck bursted. The driver of the truck lost balance of the truck and dashed against a tree after crushing Kejuram underneath killing him instantaneously. It also resulted in death of the driver and one Rinku Agrawal who was also travelling in the said truck. 3. The learned M.A.C.T., on the basis of evidence adduced before it, carne to the conclusion that the deceased was being carried in the ill fated truck as a passenger at the time of the accident and there was' no actionable negligence on the part of the driver of the truck and thereby exonerated the owner and the Insurance-Company and awarded only Rs.25,000/- as compensation to the claimants being a sum under no-fault liability. 4. We have perused the records and find that Shiv Kumar Kaushik A.W.3 has categorically stated that at the time of the accident, Kejuram was not travelling in the offending truck and was standing at the road waving to the truck to come to standstill. Nothing has emerged in his cross-examination to rebut the aforesaid testimony. We also find that Pundasia A.W.2 has also corroborated the testimony of Shiv Kumar by saying that Kejuram was standing by the side of the road and when the truck got imbalanced, he shouted and asked Kejuram to run for his life but the offending truck engulfed Kejuram and after crushing him underneath dashed against a tree. We also find that Pundasia A.W.2 has also corroborated the testimony of Shiv Kumar by saying that Kejuram was standing by the side of the road and when the truck got imbalanced, he shouted and asked Kejuram to run for his life but the offending truck engulfed Kejuram and after crushing him underneath dashed against a tree. The owner of the truck neither contested the claim nor entered the witness box. In that view of the matter, we find that the learned M.A.C.T. wholly erred in coming to the conclusion that actionable negligence of the driver of the truck was not proved and the deceased-Kejuram was travelling in the ill-fated truck at the time of the accident. 5. So far as the question of actionable negligence is concerned, learned Counsel for the appellants has placed reliance on Minu B. Mehta and another Vs. Balkrishna Ramchandra Nayan and Another wherein the Apex Court has held that in order to sustain a plea that the accident Was due to the mechanical defect the burden is on the owner to prove that he had taken all necessary precautions and kept the vehicle in a roadworthy condition. 6. In Henderson Vs. Henry E. Jenkins and Sons and another a decision of the House of Lords, England, it was held that in a case of accident due to mechanical breakdown, the burden of proof is on the owner and driver of the vehicle to prove that they had exercised reasonable care and took all proper steps to avoid the danger. In the present case also it was the duty of the owner to enter the witness box to prove that he had taken care to see that the lyres of offending truck were in good condition and not in a worn out or remoulded condition. Since the driver of the ill-fated truck died on the spot and the owner failed to produce evidence in this regard it must be said that the owner of the truck failed to discharge the burden of proof that he had taken reasonable care. 7. Since the driver of the ill-fated truck died on the spot and the owner failed to produce evidence in this regard it must be said that the owner of the truck failed to discharge the burden of proof that he had taken reasonable care. 7. Bearing the above touchstone in mind, on examining the evidence led by the claimants and also the fact that the owner did not contest the claim, we have no hesitation in holding that the finding recorded by the learned M.A.C. T. that there was no actionable negligence on the pari of the driver of the truck and the owner and Insurer of the offending truck were not liable to pay compensation was wholly erroneous and contrary to law. It is not disputed that at the time of the accident, the offending truck was insured by the Non-applicant No.2 and was owned by Non-applicant No:1 In this view of the matter, in the facts and circumstances mentioned above, we are of the considered opinion that the non-applicants No.1 & 2 are jointly as also severally liable to pay compensation to the claimants. 8. So far as the quantum of compensation payable to the claimants is concerned, the evidence led by the claimants shows that the deceased was a grain merchant. The evidence also shows that monthly income of the deceased was Rs.5,000/-. However, taking into consideration all the relevant circumstances, we hold the monthly income of the deceased at Rs. 3.000/-. Taking one-third share towards personal expenses of the deceased, the annual loss of dependency comes to Rs.24,000/-. The age of the deceased was unquestionably said to be 48 years on the date of the accident, with the result, multiplier 13 has to be applied to the above mentioned amount. In this manner, the actual' loss of dependency' comes to Rs. 3,12,000/-. To this, considering the fact that the accident took place on 21.6.1994 i.e. before the second schedule was introduced w.e.f. 14.11.1994 in the Motor Vehicle Act, 1988, we deem it fit to award Rs.20,000/- towards loss of consortium to the wife, RS.5000/- towards funeral expenses, a sum of Rs. 20,000/- towards' loss of love and affection to the children of the deceased and a sum of Rs.20,000/- towards' loss of estate. Thus, total compensation payable to the claimants comes to Rs.3,77,000/ -. 20,000/- towards' loss of love and affection to the children of the deceased and a sum of Rs.20,000/- towards' loss of estate. Thus, total compensation payable to the claimants comes to Rs.3,77,000/ -. Considering the rate of interest prevalent in the year in which the accident took place, we deem it appropriate to award interest at the rate of 10% per annum on the aforesaid amount from the date of claim petition till realization. 9. In the result, this appeal is allowed. Out of total compensation of Rs. 3,77,000/-, the mother of the deceased (the appellant No.3 herein) is entitled to Rs.50,000/- and proportionate interest. The sum shall be paid to her. Out of the remaining sum, the widow of the deceased namely Smt. Savitri Bai, the appellant No.4 herein, is entitled to a sum of Rs. 2 lakhs and proportionate interest. The remaining compensation of Rs.1,27 ,000/- shall be equally distributed among the appellants No. 1,2,5,6 and 7 who are the children of the deceased Kejuram. Out of Rs.2 lakhs and proportionate interest payable to the widow of the deceased, 50% shall be invested in Monthly Income Scheme in the Post Office and the remaining 50% shall be paid to her. Appeal Allowed.