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Madhya Pradesh High Court · body

2009 DIGILAW 1166 (MP)

Kalpana Devi Pandey v. Gabbar Singh Baghel

2009-10-06

S.K.GANGELE

body2009
Judgment Gangele, J. ( 1. ) The appellants have filed this appeal under section 173 of the Motor Vehicles Act, 1988 against the award dated 24.4.2003, passed by the Third Additional Motor Accidents Claims Tribunal, Gwa- lior in Claim Case No. 57 of 2002, for enhancement of compensation. The insurance company has also filed a cross-objection questioning its liability to indemnify the insured. ( 2. ) On 12.5.2002, the deceased Ramesh- war Dayal Pandey was going to Ramdas Ghati on his scooter bearing registration No. MP 07-0110. He was dashed by a tractor bearing registration No. CPG 3189. In the aforesaid accident, the deceased died. Report of the accident was lodged at the Police Station, Bahodapur, District Gwa- lior and the police registered an offence under sections 304-A and 337 of Indian Penal Code, vide Crime No. 163 of 2002 against the driver of the tractor. Initially, claimants filed claim application under section 163-A of the Motor Vehicles Act before the Claims Tribunal claiming total compensation of Rs. 26,20,000, subsequently, the claim application has been converted under section 166 of the Motor Vehicles Act. ( 3. ) The Claims Tribunal held that the accident occurred due to rash and negligent driving of the driver of the tractor bearing registration No. CPG 3189. The tractor was insured at the relevant time by the non-applicant No. 3 insurance company, hence the driver, owner and the insurance company are jointly and severally liable for payment of compensation. After considering the evidence on record of the case, the Claims Tribunal awarded a total compensation of Rs. 3,51,000 in favour of the claimants. ( 4. ) Learned counsel for the appellants has submitted that the Claims Tribunal has not awarded a proper compensation. The income of the deceased and dependency has not been assessed properly by the Claims Tribunal. ( 5. ) Contrary to this, learned counsel for the insurance company has submitted that insurance company is not liable to indemnify the insured because the deceased was himself negligent in the accident. ( 6. ) Initially, the claimants filed claim application before the Claims Tribunal under section 163-A of the Motor Vehicles Act. ( 5. ) Contrary to this, learned counsel for the insurance company has submitted that insurance company is not liable to indemnify the insured because the deceased was himself negligent in the accident. ( 6. ) Initially, the claimants filed claim application before the Claims Tribunal under section 163-A of the Motor Vehicles Act. It has been mentioned in para 3 of the application filed before the Claims Tribunal that the tractor attached with a trolley bearing registration No. CPG 3189 was stationed in the middle of the road and due to the aforesaid condition, the accident occurred. However, subsequently, the claim application has been amended and it has been pleaded that the tractor and trolley had been going at a high speed and suddenly the tractor was stationed in the middle of the road, hence the accident occurred. In the first information report, certified copy of which has been filed as Exh. PI, it has been mentioned that the tractor and trolley was stationed in the middle of the road. Bharat Datre, AW 2, in his evidence deposed that he had seen the accident and at the time of accident due to some act, the tractor and trolley became stationed and in that course, the deceased who had been driving a scooter dashed with the trolley attached to the tractor from the rear side. ( 7. ) From the evidence on record of the case it is clear that the accident occurred when the deceased who had been driving a scooter dashed the trolley attached with the tractor from rear side. It is also a fact that in the first information report, Exh. PI, it has been mentioned that the tractor and trolley was stationed in the middle of the road. Initially the claimants filed claim application under section 163-A of the Motor Vehicles Act and in the aforesaid application it has been pleaded that the accident occurred because the tractor and trolley was stationed in the middle of the road. ( 8. ) From the aforesaid facts, I come to the conclusion that the accident occurred when the scooter dashed with the trolley attached with the tractor which was stationed in the middle of the road. It is a fact that the scooter dashed against rear side of the trolley. The Honble Supreme Court in the case of Raj Rani v. Oriental Insurance Co. It is a fact that the scooter dashed against rear side of the trolley. The Honble Supreme Court in the case of Raj Rani v. Oriental Insurance Co. Ltd., 2009 ACJ 2003 (SC), has held as under with regard to the fact of contributory negligence that when the vehicle was dashed by another vehicle which was stationed in the middle of the road: "(16) So far as the issue of contributory negligence is concerned, we may notice that the Tribunal has deducted 1/3rd (sic 72) from the total compensation on the ground that deceased had contributed to the accident. The same, we find, has been upheld by the High Court. This court in Usha Rajkhowa v. Paramount Industries, 2009 ACJ 1314 (SC), discussed the issue of contributory negligence noticing, inter alia, earlier decisions on the same topic. It was held that: (10) The question of contributory negligence on the part of the driver in case of collision was considered by tins court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak, 2002 ACJ 1720 (SC). That was also a case of collision in between a car and truck. It was observed in para 8: "(8) ...The question of contribatory negligence arises when there has been some act or omission on the claimants part, which has materially contributed to the damage caused, and is of such a nature mat it may properly be described as negligence. Negligence ordinarily means breach of a legal duty to care, but when used in the expression contributory negligence, it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an author of his own wrong". (17) The principle of 50:50 in cases of contributory negligence has been discussed and applied in many cases before this court. In Sri Krishna Vishweshwar Hegde v. General Manager, Karnataka State Road Trans. Corpn., 2008 ACJ 1617 (SC), this court upheld the judgment of the Tribunal assessing the ratio of liability at 50:50 in view of the fact that there was contributory negligence on the part of the appellant and fixed the responsibility for the accident in the ratio of 50:50 on the driver of the bus and the appellant. In this case, the truck was stationary. In this case, the truck was stationary. Some amount of negligence on the part of the deceased cannot be ruled out. (18) Hence, in the instant case, we find that there was contributory negligence on the part of the deceased and accordingly the claimant was entitled to only 50 per cent of the total amount of loss of dependency." On the basis of above principle of law, in my opinion, there was 50 per cent contributory negligence of the deceased himself. ( 9. ) With regard to quantum of compensation as per the evidence of the wife of the deceased Kalpana the deceased was working as Dewan in the Police Department. His age was 48 years. The Department has issued a certificate of pay of the deceased, which is Exh. P8. As per the aforesaid certificate, the deceased was earning a gross salary of Rs. 6,775. Looking to the age of the deceased, the promotion of the deceased could not be ruled out as held by the Apex Court in the case of Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC). Hence, in my opinion, it would be just and proper to consider the income of the deceased at Rs. 8,000 per month and Rs. 96,000 per year. Deceased was aged about 48 years. As per Second Schedule to the Motor Vehicles Act, multiplier of 13 would be applicable between the age group of 45-50. Because the claimants are six in number who are wife, mother and four children of the deceased, hence as per the judgment of the Honble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation (supra), the deduction for personal expenses to the deceased could be 1/5th. After making the aforesaid deduction, the total loss of income to the claimants on account of death of the deceased comes to Rs. 76,800. After applying multiplier of 13, total loss of income to the