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2006 DIGILAW 682 (RAJ)

Lokesh Chandra v. Chatra Ram

2006-02-27

MANAK MOHTA

body2006
Honble MOHTA, J.–These two Misc. Appeals, namely, 48/1995, and 69/1995 have arisen out of single accident for which claim case Nos. 64/94 (2/93) and 72/94 (1/93) respectively were preferred by the present claimants before the Judge, Motor Accident Claims Tribunal, Phalodi, District Jodhpur who vide his judgment and award dated 26.9.1994 decided the claims petitions by a common judgment and awarded Rs. 40,000/- as compensation in each case. Since in these appeals, common question of law and facts are involved, therefore, these appeals were being heard together to maintain uniformity and convenience of judgment and are being disposed of by this common judgment. (2). Briefly stated the facts of the case are that on 2.12.1992 at about 1:40 p.m. while Ruchit Kothari and his classmate Chandra Shekhar Soni were going on their cycle from the main gate of Indira Gandhi Nahar Pariyojana, Phalodi towards National Highway No. 15(which leads from Jaisalmer to Bikaner), at that time, a truck bearing No. RRF-5641, which was coming from the side of Jaisalmer and was going towards Bikaner and was being driven rashly and negligently at a high speed by its driver i.e., Chatra Ram (respondent No. 1), dashed against the cycle riders, as a result of which Ruchit Kothari (aged 13 years) and Chandra Shekhar Soni (aged 11 years) both got crushed under the wheels of the offending truck and they succumbed to the injuries on the spot. The police also registered a case against the truck driver and after investigation filed a challan against him. (3). A total sum of Rs. 12,02,250/- and Rs. 12,01,000/- were claimed as compensation under different heads in respect of claim petition No. 64/94 (2/93) and claim petition No. 72/94 (1/93) respectively. It was averred in the claim petitions that Ruchit Kothari and Chandra Shekhar Soni, at the relevant point of time, were aged 13 years and 11 years respectively and were the students of 8th standard. They were having outstanding record in their studies and both of them used to maintain first division throughout. It was further averred in the claim petitions that they also used to participate in sports and extra-curricular activities. It was also averred that the appellant-claimants had planned status of Ruchit Kothari and Chandra Shekhar Soni in such a way that they would have either become engineer or doctor in the years to come and would have earned atleast Rs. It was further averred in the claim petitions that they also used to participate in sports and extra-curricular activities. It was also averred that the appellant-claimants had planned status of Ruchit Kothari and Chandra Shekhar Soni in such a way that they would have either become engineer or doctor in the years to come and would have earned atleast Rs. 5000/- per month and would have contributed a sum of Rs. 3,000/- per month to claimant-appellants. It was alleged that due to untimely death in accident, they suffered loss of income as well as suffered loss of love and affection. (4). In the claim petitions, it was stated that the driver and owner of the truck are respondent No. 1 and respondent No. 2 and respondent No. 3 is the insurer of truck and prayed that the claim be awarded against them. In both the claim petitions, the replies were submitted by respondents No. 1 and 2, wherein it was stated that respondent No. 1 was not negligent in driving the truck but as a matter of fact, the deceased-persons were negligent in driving bicycle and due to that, the accident occurred. It was also stated in the reply that the deceased- persons were not earning members. The claimant-applicants were not dependent on deceased. The exorbitant compensations have been claimed, as such they were not entitled for any sort of compensation from them. It was further stated that at the time of accident, the truck was insured with respondent No. 3. If any liability to pay compensation arose then respondent No. 3 is liable. (5). In replies submitted by Insurance Company, the factum of truck being insured with Company was admitted. It was further stated that the driver of truck was not having a valid and effective driving licence and no intimation with regard to accident, was given to the Company, which was in violation of terms and conditions of policy. Thus, respondent No. 3 is not liable to pay compensation. (6). On the basis of pleadings of parties six common issues were framed in each case by the learned Tribunal. Issue No. 1 was with regard to rash and negligent driving of the Truck, Issue No. 2 was with regard to quantum of compensation, if any payable to the claimants, Issue No. 3 was framed with regard to contributory negligence and other issues Nos. Issue No. 1 was with regard to rash and negligent driving of the Truck, Issue No. 2 was with regard to quantum of compensation, if any payable to the claimants, Issue No. 3 was framed with regard to contributory negligence and other issues Nos. 4, 5 and 6 were framed on the defence pleas taken by the respondent No. 3. After framing of the issues, the learned Tribunal tried both the claim cases jointly and decided by a common judgment and award dated 26.9.1994. (7). During trial, in claim case No. 64/94 (2/93), PW 1 Lokesh Chandra, PW 2 Pram Prakash, PW 3 Pawan Kumar and PW 4 Laxman were examined and the claimants produced and exhibited documents as Exhibit-P/1 to Exhibit-P/23. In claim case No. 72/94 (1/93), PW 1 Damodar, PW 2 Pram Prakash, PW 3 Pawan Kumar and PW 4 Laxman were examined and the claimants produced and exhibited documents as Exhibit-P/I to Exhibit-P/23. From the side of defence in both the claim cases, respondent No. 1-Charta Ram (driver of truck) was examined as DW-1. (8). After hearing the parties, the learned Tribunal held that the accident occurred solely due to rash and negligent driving of the truck driver resulting in death of Ruchit and Chandra Shekhar. The learned Tribunal turned down the contention of contributory negligence and awarded compensation of Rs. 40,000/- to the claimants of each case with interest @ 12% per annum from the date of filing of the claim petition. (9). Being dis-satisfied with the amount of compensation awarded by the learned Tribunal, the claimant-appellants have filed these appeals. (10). I have heard learned counsel for the parties and carefully perused the records of the individual case. (11). During the course of argument, the learned counsel for both the appellants submitted that the learned Tribunal has awarded meagre amount of compensation without properly appreciating the material in right perspective. It has contended that both the deceased were of young age and were having very good record of the studies. They also belonged to the families having good educational back-ground. It was further contended that if they would have not died they would have got higher education and would have earned more than Rs. 5000/- per month and out of that, atleast Rs. 3000/- per month they would have given to parent- claimants. They also belonged to the families having good educational back-ground. It was further contended that if they would have not died they would have got higher education and would have earned more than Rs. 5000/- per month and out of that, atleast Rs. 3000/- per month they would have given to parent- claimants. In this way, due to untimely death, the appellants suffered a loss of income but the learned Tribunal has not properly considered the oral and documentary evidence and awarded a fix amount of Rs. 40,000/- in each case as compensation without any basis, that is not sustainable and deserves to be set aside and prayed that reasonable compensation may be determined. It was also contended that the learned Tribunal while assessing the compensation has not applied the multiplier method that is the most scientific and reasonable to maintain uniformity and certainty in the awards. Thus, on this count also, the findings of the learned Tribunal are liable to be set aside. It was further contended with reference to both the appeals that the deceased were very brilliant in studies and their parents had planned to give them higher education to make them either Engineer or Doctor but the learned Tribunal has not given due weightage to the statements. The learned counsel for the appellants further urged that the Honble Apex Court in Manju Devi and Another vs. Musafir Pawan and Another, reported in 2005 ACJ 99 with regard to a boy of 13 years who was killed in accident took the notional income of Rs. 15,000/- per annum, applied multiplier of 15 and awarded compensation of Rs. 2,25,000/- to the parents. The learned counsel for the appellants also cited the following authorities in support his contentions:– (1) Bal Mukand Aangal & Anr. vs. Narayin Ram and Others (2004 ACTC 542), and (2) Kamlesh and Others vs. RSRTC and Others (2005 (3) RLW (Raj) 1654. Again on these submission, it was prayed that the awarded compensation may be modified and enhanced reasonable. The appeal may be allowed. (12). On the contrary, the learned counsel for the respondents supported the judgment and award of the learned Tribunal and submitted that the learned Tribunal after discussing the entire material has determined just and reasonable compensation. Again on these submission, it was prayed that the awarded compensation may be modified and enhanced reasonable. The appeal may be allowed. (12). On the contrary, the learned counsel for the respondents supported the judgment and award of the learned Tribunal and submitted that the learned Tribunal after discussing the entire material has determined just and reasonable compensation. It was contended that both the deceased were of lower age merely on the assumption and presumption, the claimants have assessed future income but that is not certain. The learned counsel for the respondent-Insurance Company contended that there is no scope for enhancement of compensation amount, the learned counsel placed reliance on Nathu Singh Verma and Others vs. Behari Dass and Others, reported in 1993 ACT 1233 and stated that in a case of boy of IV Class, the amount of compensation Rs. 40,000/- was awarded. On these submission, it was prayed that the appeals may be disallowed. (13). I have considered the rival contentions of the parties and perused the findings of the learned Tribunal. (14). It is revealed from the record that PW 3 Pawan Kumar is the person who has seen the occurrence. He has stated that on 2.12.92, at 1.45 PM the accident occurred, the son of Lokesh was driving the bicycle and other boy Chandra Shekhar was sitting behind him. Both were on the side of the road. At that time, the offending truck at a high speed came from Bikaner side, hit the boy and crushed them. He has stated that due to accident, both the boys died on the spot. Thereafter their father and other witnesses also reached on the spot. The police also reached and inspected the site and prepared the site-plan etc. Other witnesses fathers of both the deceased and PW 2 Prem Prakash stated that on information, they at once reached on the spot and saw the accident. The dead-bodies were lying on the spot and the truck was standing at a distance of 15-20 ft. Site-plan Ex.3 and inspection-note Ex.4 also corroborated the factum of accident. DW 1 Chatra Ram, in his statement, also admitted rightly the accident. The dead-bodies were lying on the spot and the truck was standing at a distance of 15-20 ft. Site-plan Ex.3 and inspection-note Ex.4 also corroborated the factum of accident. DW 1 Chatra Ram, in his statement, also admitted rightly the accident. In this way, the learned Tribunal, on the basis of the material, rightly concluded issues No. 1 and 3 in favour of the claimant-appellants that the accident occurred solely due to rash and negligent driving of Truck No. RRF 5641 by its driver Chatra Ram and rightly over-ruled the contentions of contributory negligence on the part of the deceased-boys. The conclusion is to be maintained. I have also considered the contention with regard to quantum of compensation. The learned Tribunal mainly on the ground that both the deceased were of lower age and at the time, they were not earning, assessed the fix amount of compensation of Rs. 40,000/- in each case but the learned Tribunal has not properly considered the material in this respect. The father of both the deceased are educated persons and on the basis of education, they got Government Services. They know the importance of education. They have stated in their statements that they had plan to give higher education to their sons. The study record of both the deceased boys placed by the claimants also supported their version. In this situation, it was most expected that if they would have not died in accident, they would have got higher education and would have earned more than Rs. 5000/- per month. It is also expected that being sons, they would have paid at least Rs. 1000/- each to their parents even after their marriage. In this way, the finding of the learned Tribunal is not sustainable and the amount awarded by the learned Tribunal requires to be modified and enhanced. In this respect, the authorities cited by the appellants side also support the conclusion. In 2005 ACJ 99 (supra), a boy of 13 years died in motor accident, awarded Rs. 2,25,000/- as compensation to the parents. The authority cited by the learned counsel for the respondent do not help their contentions. In that authority, the father of the deceased was Teacher having a big family to maintain. In 2005 ACJ 99 (supra), a boy of 13 years died in motor accident, awarded Rs. 2,25,000/- as compensation to the parents. The authority cited by the learned counsel for the respondent do not help their contentions. In that authority, the father of the deceased was Teacher having a big family to maintain. In this way, on the above discussion, the compensation comes in each case taking the multiplier of 15, looking to their age and as well as the age of the parents (1000 x 12 x 15) = 1,80,000/-. Further being parents, they have suffered mental pain and agony and suffered loss of love and affection, it would be reasonable to award Rs. 25,000/-. Thus, the total amount comes to Rs. 2,05,000/- that is reasonable. In this way, the compensation is enhanced from Rs. 40,000/- to 2,05,000/- in each case in favour of the appellants and against the respondents. The appellants shall be entitled to recover interest @ 7 1/2% per annum on the enhanced amount from the date of filing of the claim petitions. All the respondents are jointly and severally responsible to pay or deposit the amount in Motor Accident Claims Tribunal, Phalodi. (15). In the result, both the appeals are allowed and the judgment and award of the learned Tribunal is modified to that extent that total amount of compensation is enhanced from 40,000/- to Rs. 2,05,000/- (inclusive of any amount awarded under No Fault Liability) and further the appellants will get interest @ 7 1/2% per annum on the enhanced amount of Rs. 1,65,000/- = (Rs. 2,05,000 - 40,000/-) from the date of the claim petition till payment is made. Rest of the judgment and awards is confirmed. All the respondents are jointly and severally made responsible to pay or deposit the amount in Motor Accident Claims Tribunal, Phalodi within two months from the date of judgment failing which the appellants will be entitled to recover the same from them. No order as to costs. _