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2008 DIGILAW 1442 (MP)

NATIONAL INSURANCE CO v. RINKI

2008-12-16

S.C.SHARMA

body2008
Judgment ( 1. ) THE present appeal has been filed under Section 173 of the Motor vehicles Act, 1988 against an award dated 20th April, 2004 passed by the II nd member Motor Accident Claims Tribunal, Gwalior, in Claim Case No. 126/03, parumal and others Vs. Hasankhan and others. ( 2. ) IT has been stated by the appellant-Insurance Company in the appeal that on 2nd November, 2003 an accident took place and the deceased shyam Jeswani died on account of road accident involving the Jeep bearing No. MP-07-B-6888. The Jeep on the date of accident was insured with the appellant-Insurance Company. A claim was preferred by respondent Nos. 1 to 6, who are the children, widow and parents of the deceased Shyam Jeswani and the claim has been allowed by the Motor Accident Claims Tribunal. It has been further stated by the Insurance Company that on 2nd November, 2003, the deceased was riding a scooter and was following a Jeep, the driver of the Jeep suddenly applied the brakes which resulted in an accident as the scooter collided from behind with the Jeep, resulting in death of Shyam Jeswani. An award passed by the Tribunal has been challenged by the appellant-Insurance company on the ground that the respondent No. 6 driver of the Jeep was not responsible for the accident as the deceased was following the Jeep and he could not stop when the driver of the Jeep applied the brakes. Leaned Counsel for the appellant-Insurance Company has vehemently argued before this Court that the driver of a motor vehicle moving behind another vehicle should keep a sufficient distance from another vehicle to avoid collision in case the vehicle in front suddenly slows down or stops. It has been contended before this Court that the Claims Tribunals has erred in law in not taking note of Rule 23 of the Road regulations, 1989 according to which it was incumbent upon the deceased to maintain a safe distance from the vehicle ahead of him. Learned Counsel for the appellant-Insurance Company has also taken a ground that it was a case of contributory negligence and liability of the Insurance Company is liable to be decreased. Learned Counsel for the appellant-Insurance Company has also taken a ground that it was a case of contributory negligence and liability of the Insurance Company is liable to be decreased. It has also been argued that the income of the deceased has not been correctly taken into account as the award is based upon the annual income of the deceased on the basis of income tax returns for the assessment year 2002-2003. As per the Exh. P-2, which is income tax return for the assessment year 2002-2003, the income of the deceased has been reflected as Rs. 66,230/ -. Learned Counsel for the appellant-Insurance Company has prayed for setting aside the award passed by the Tribunal before this Court. ( 3. ) LEARNED Counsel appearing for the respondents-claimants on the other hand made a prayer for dismissal of the present appeal and has argued that the sole bread winner of the family loss his life in a road accident and he was an income tax payee. It has also been stated before this Court that the income tax returns of three years were enclosed and the last income tax return which was filed the deceased himself has been taken into account while awarding compensation. Learned Counsel for the respondent claimants have also argued before this Court that under the Road Regulations, 1989, no such distance is specified and it was the Jeep driver who has driven the Jeep in a rash and negligent manner. Not only this, the learned Counsel has prayed for enhancement of the compensation awarded by the Tribunal. ( 4. ) HEARD learned Counsel for the parties and perused the record. ( 5. ) IN the present case, it is an admitted fact that an accident took place on 2nd November, 2003 involving the Jeep bearing No. M. P.-07-B-6888. It is also an admitted fact that the vehicle in question was insured with the appellant-Insurance Company. At the time of accident, the deceased was aged about 27 years and as per the statements on record, one Shri Ajay Pathak (P. W. 3) has stated before the Tribunal that the Jeep was being driven in a rash and negligent manner and the driver of the Jeep after overtaking the Scooter suddenly applied the brakes which resulted in an accident. This witness has stated that it was the driver of the Jeep who was driving the Jeep in a rash and negligent manner and he was in fact at fault for the accident. The driver of the jeep has not been examined before the Tribunal. ( 6. ) THE learned Counsel for the appellant-Insurance Company has relied upon a judgment delivered by this Court in the case of Mohanlal Gupta vs. State of M. P. , reported in 2002 (1) MPWN SN 16, wherein, the driver of a jeep has not maintained a safe distance and collided with a Truck while attempting to overtake the Truck and, therefore, the Division Bench of this court has held the driver of the Jeep to be negligent in the aforesaid case. Whereas in the present case, it was the Jeep driver who indulged in an act of overtaking the Scooter and later on applied the brakes and, therefore, in the facts and circumstances of the present case, the Scooterist (deceased) cannot be held to be negligent for the accident and, therefore, the case cited by the learned counsel for the appellant-Insurance Company is distinguishable. Learned Counsel has also relied upon a judgment delivered by this court in the case of United India Insurance Co. Ltd. and another Vs. Lalji Singh and another, 1993 ACJ 704 , wherein, a Division Bench of this Court has dealt with the contributory negligence. A car and a Scooterist were proceeding in the same direction and when the car driver took a sudden turn, the Scooterist who was proceeding just behind the car dashed against it. The Scooterist and the car driver were held equally responsible for the accident. Whereas, in the present case, the Scooterist was not at all responsible for the accident, it was the Jeep driver who after indulging in an act to overtake the scooter applied the brakes suddenly which resulted in a collision and, therefore, again on facts, the case relied upon by the learned Counsel is distinguishable. Learned Counsel has also relied upon a judgment delivered by this court in the case of Kanhaiyalal and another Vs. Learned Counsel has also relied upon a judgment delivered by this court in the case of Kanhaiyalal and another Vs. Sitabai and others, 2003 (4)M. P. H. T. 74 (DB) = 2004 ACJ 1372 , wherein, the driver of the vehicle met with an accident due to his own negligence and it was held that the claimants are not entitled for compensation under Section 166 of the Motor Vehicles Act, 1988. Whereas in the present case, the deceased was not responsible for the accident as is evident from the award delivered by the Tribunal and, therefore, as negligence of the deceased has not been proved before the Tribunal, the judgment referred is again distinguishable. Learned Counsel has also relied upon a judgment delivered by a division Bench of this Court in the case of Suchitra Sinha and others Vs. Baij nath and others, 2005 (3) TAC 533 MP, wherein income tax return filed on behalf of the deceased after his death was taken into account for calculating the compensation. Whereas in the present case income tax returns filed by the deceased himself during his lifetime has been taken into account and, therefore, the judgment referred by the learned Counsel is again distinguishable on facts. ( 7. ) LEARNED Counsel for the appellant-Insurance Company has heavily relied upon the Rules of Road Regulation, 1989. Rule 23 of the Road regulations, 1989 framed by the Central Government in exercise of power conferred under Section 118 of the Motor Vehicles Act, 1988 reads as under:-"23. Distance from vehicles in front.- The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that another vehicle to avoid collision if the vehicle in front should suddenly slow down or stop. " In the present case, violation of the aforesaid Rule is not attracted as the jeep was following the scooter and thereafter the driver of the Jeep overtook the scooter and later on applied the brakes suddenly and, therefore, no relief can be granted to the Insurance Company based upon the Rule 23 of the Road regulation, 1989. ( 8. ) THE Exhs. P-1, P-2 and P-3 are the income tax returns of the deceased Shyam Jeswani. The deceased has submitted the following returns as under:- (i) For the assessment year 2003-2004 submitted on 20th August, 2003 income Rs. ( 8. ) THE Exhs. P-1, P-2 and P-3 are the income tax returns of the deceased Shyam Jeswani. The deceased has submitted the following returns as under:- (i) For the assessment year 2003-2004 submitted on 20th August, 2003 income Rs. 78,675/-; (ii) For the assessment year 2002-2003 submitted on 28th January, 2003 income Rs. 66,230/-; and (iii) For the assessment year 2001-2002 submitted on 26th March, 2002 income Rs. 58,510/ -. The last return was submitted on 20th August, 2003 by the deceased himself reflecting his income to be Rs. 78,675/ -. It was not a case where the return has been submitted after the death of the deceased by his relative. The learned Tribunal has, therefore, rightly relied upon the Exh. P-l and has rightly treated the income of the deceased to be Rs. 78,765/- as his annual income. After deducting l/3rd Rs. 52,000/- has been treated as dependency and keeping in view his age in mind, the multiplier of 18 has rightly been taken into account while calculating the compensation. The Claims Tribunal has rightly arrived at the amount of compensation as reflected in the impugned award and, therefore, no case for interference is made out in the matter. ( 9. ) RESULTANTLY, the appeal is dismissed. No order as to costs.