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2007 DIGILAW 94 (UTT)

Roshan Singh v. Praveen Kumar

2007-03-08

J.C.S.RAWAT, RAJEEV GUPTA

body2007
Judgment J.C.S. Rawat, J. 1. This appeal under section 173 of the Motor Vehicles Act, has been filed against the award dated 03-10-2003 passed by the Motor Accident Claims Tribunal I District Judge, (hereinafter referred as 'Tribunal'), Dehradun in MAC.P. NO.1 08/2001, whereby the learned Tribunal had awarded a sum of Rs. 50,000/- as compensation alongwith interest @ 9% per annum to the claimant against the New India Assurance Company. The Insurance Company was directed to pay the amount of compensation within forty-five days from the date of award. 2. Brief facts of the case are that the claimants Le. Saheb Singh (father of the deceased) and Roshan Singh (brother of the deceased) had filed a claim petition before the Tribunal alleging therein that on 14-02-1998 the deceased-Manish was going to Sabhawala from Herbertpur in a vehicle (Vikram) No. UGI 9039. At about 9:30 A.M. a bus No. UP..11 B4930 coming from the opposite direction rashly and negligently dashed the Vikarm due to which the deceased Manish sustained grievous injuries and subsequently he succumbed to his injuries. The said bus was being driven by its driver-Praveen Kumar in a rash and negligent manner. It was further alleged in the claim petition that the deceased was a doctor. He was aged about 26 years and was earning Rs. 5,000/- p.m. at the time of incident. Hence, the claim petition had been preferred by the father and brother of the deceased Le. Saheb Singh and Roshan Singh respectively. An amount of Rs. 12,10,000/- had been claimed as compensation. The father of the deceased had expired during the pendency of the claim petition and Roshan Lal (appellant) alone is the claimant. 3. The opposite parties filed their written statements and contested the case. The driver and owner of the vehicle i.e. Praveen Kumar and Shiv Kumar Gupta respectively have filed their written statements alleging therein that the accident did not occur on account of rash and negligent driving of the driver of the bus but on account of the fog. The New India Assurance Company had also filed its written statement denying the allegations made in the claim petition. It had also been pleaded that the claimants had not impleaded the driver, owner and Insurance Company of vehicle No. UGI-9039 (Vikram) as an opposite party. 4. The New India Assurance Company had also filed its written statement denying the allegations made in the claim petition. It had also been pleaded that the claimants had not impleaded the driver, owner and Insurance Company of vehicle No. UGI-9039 (Vikram) as an opposite party. 4. On the basis of the pleadings, the learned Tribunal framed necessary issues in the case and ultimately, the learned Tribunal had come to the conclusion that the accident took place due to rash and negligent driving of the drivers of both the vehicles. It was further held that in absence of any documentary evidence regarding the actual occupation of the deceased as well as the income the Tribunal was left with no option except to calculate the amount of compensation according to his own assessment. It was held that since Roshan Lal (Roshan Singh) who is the brother of the deceased was aged about 33 years at the time of accident hence he cannot be said to be dependent on the deceased. The clain;1ants who filed the claim petition before the Tribunal were the father and brother of the deceased i.e. Saheb Singh and Roshan Singh respectively. The father of the deceased had expired during the pendency of the claim petition and Roshan Lal (Roshan Singh) is the only claimant. It was further held that as the deceased was sole earning member in the family, then it is quite natural that after his death, the claimant must be feeling loneliness and is deprived of the company of his brother. Ultimately, an amount of Rs. 1 lakh was assessed in favour of the claimant- Roshan Singh (brother of the deceased) under the head of loss of love and affection in lieu of the death of his brother Manish. It was further held that the drivers of both the vehicles contributed to the accident and therefore the claimant was entitled to get the 50% amount out of the total compensation. It was further held that the Insurance Company is liable to pay the compensation to the claimant. Thus, the Tribunal had awarded a sum of Rs. 50,000/- to the claimant as compensation. The Insurance Company was directed to pay the amount to the claimant within forty five days from the date of award. 5. Feeling aggrieved by this, the appellant-claimant (Roshan Singh) has preferred the present appeal. 6. Thus, the Tribunal had awarded a sum of Rs. 50,000/- to the claimant as compensation. The Insurance Company was directed to pay the amount to the claimant within forty five days from the date of award. 5. Feeling aggrieved by this, the appellant-claimant (Roshan Singh) has preferred the present appeal. 6. Learned counsel for the appellant contended that the driver of Vikram in which the deceased was sitting was not rash and negligent at the time of accident. It was further contended that the learned Tribunal had erred in holding that the driver of the Vikram was 50% responsible for the accident. It was further contended that the Tribunal was not justified in reducing the 50% amount from the decreed amount to the claimant. Learned counsel for the Insurance Company has supported the judgment of the learned Tribunal. The claimants had produced Gambhir Singh as P.W. 2 who was the eyewitness of the incident. Gambhir Singh PW2 has stated in his deposition that it was a head on collusion between the bus and the Vikram. It was further stated that the offending bus coming from the opposite direction rashly and negligently dashed the Vikram due to which the Vikram turned turtle and the deceased sustained multiple injuries and succumbed to his injuries. Gambhir Singh PW2 had stated in his deposition that the Tempo's (Vikram) driver was driving the tempo in a controlled speed and there was no shops or Abadi. Hence, it is quite clear that it was straight road. He had further stated that he saw the bus coming from the opposite direction at a distance of 100 metres. It is obvious that the driver of the Vikram would also have seen the bus coming from the opposite direction. As such, the driver of the Vikram could have gone to his extreme left in order to avoid the accident. The driver of the Vikram had sufficient opportunity to see the bus coming from the opposite direction and in case, if he would have taken due care and caution then this accident could not have taken place. He also failed to do so. Perusal of the evidence clearly reveals that the Tribunal was justified in holding that it was a head on collusion and the driver of the Vikram had sufficient opportunity to avoid the accident and he had not taken due care to avoid the accident. He also failed to do so. Perusal of the evidence clearly reveals that the Tribunal was justified in holding that it was a head on collusion and the driver of the Vikram had sufficient opportunity to avoid the accident and he had not taken due care to avoid the accident. As such, he was also responsible for the accident. Therefore, we do not find any substance in the arguments advanced by the learned counsel for the appellant. 7. Learned counsel for the appellant further contended that the Tribunal has awarded a very low compensation to the claimant which is against the evidence on record. It was further contended that the Tribunal has awarded the lumpsum compensation of Rs. 50,000/on account of love and affection, but the Tribunal should have computed the compensation as per the provisions of the Motor Vehicles Act. It was further contended that the deceased was a doctor and he was earning Rs. 5000/- per month at the time of accident. The claimants had filed a certificate of the Gram Pradhan stating therein that the deceased was running a medical clinic in the village Sabhawalla. Learned counsel for the insurance company refuted the contention and contended that the Tribunal had awarded the compensation on the higher side. 8. Perusal of the record reveals that the village Pradhan, who has issued the said certificate, was not examined before the Tribunal. The claimants had not filed any documentary evidence by which it could have been shown that the deceased was a doctor. In case, the deceased was a medical practitioner then he must have a degree for the same, but no such documentary evidence was produced before the Tribunal. Moreover, the claimants had adduced the evidence of Roshan Lal PW 1, who had stated in his evidence that he did not know as to which of the degree of doctor, his brother possessed. It was further stated in his evidence that his brother was maintaining a register regarding the patients, but the said register was not produced before the Tribunal. In view of the above circumstances, it was very difficult to believe that deceased Manish was running a clinic without having any degree of medical practitioner. 9. The evidence led by the claimants about the income of the deceased was not of clinching nature. In view of the above circumstances, it was very difficult to believe that deceased Manish was running a clinic without having any degree of medical practitioner. 9. The evidence led by the claimants about the income of the deceased was not of clinching nature. We, therefore, do not find any fault in the approach of the Tribunal in discarding the evidence led by the claimants about the income of the deceased. Therefore, for the purposes of computation of compensation, we assess the income of the deceased at Rs. 2000/- per month or Rs. 24000/- per annum. 10. The claimants were the father and brother of the deceased. During the pendency of the claim petition, the father of the deceased had expired. Now, the brother of the deceased is the only surviving claimant. Roshan Singh PW 1 had stated in his evidence that he is working as mason and he was aged about 33 years at the time of filing of the claim petition. After deducting 1/3rd income for personal expenses of the deceased and i /3rd income for the expenses of the father of the deceased, the dependency of the claimant is assessed at Rs. 8,000/- per annum. 11. While selecting the appropriate multiplier, the age of the deceased as well as the age of the claimant should be taken into account. The deceased Manish was unmarried at the time of accident. The possibility of reduction in contribution once a person gets married is a reality. The compensation is relatable to the loss of contribution or the pecuniary benefits. Therefore, we propose to apply the multiplier of "10" in the facts and circumstances of the case. By multiplying the annual dependency of Rs. 8000/- with the multiplier of '10', the amount comes to Rs. 80,000/-. Apart from this Rs. 20001- towards the funeral expenses & Rs. 3000/- for the loss of estate are also awarded. The total amount of compensation comes to Rs. 85,000/-. Since the driver of the Vikram was also equally responsible for the accident, hence the claimant would be entitled to get 50% of the said amount (Rs. 85,000/-) i.e. 42,500/- only. In the motor accident claim petition, the just and proper compensation should be awarded by the court. The just and proper compensation depends upon the facts and circumstances of each case. The Tribunal had decreed the lumpsum compensation of Rs. 85,000/-) i.e. 42,500/- only. In the motor accident claim petition, the just and proper compensation should be awarded by the court. The just and proper compensation depends upon the facts and circumstances of each case. The Tribunal had decreed the lumpsum compensation of Rs. 11akh to the claimant and out of which 50% of the same i.e. Rs. 50,000/- was awarded to the claimant. 12. In view of the aforesaid calculations, we are of the opinion that the Tribunal had awarded the compensation on the higher side, The insurance company had not preferred any appeal against the impugned judgment and as such we are left with no other option, but to confirm the findings recorded by the Tribunal for awarding the compensation of Rs. 50,000/-. Therefore, we do not find any scope for enhancement of the compensation awarded by the Tribunal. 13. In view of the foregoing discussion, the appeal lacks merit and liable to be dismissed. The appeal is dismissed. No order as to costs.