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2011 DIGILAW 1695 (RAJ)

Lada v. Kashmiri Lal

2011-08-11

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by the appellants whose claim petition for compensation on the basis of accidental death of late Shri Ram Nath who was a helper in the Rajasthan State Electricity Board was dismissed by the learned Tribunal. The Tribunal held that deceased Ram Nath himself was negligent and therefore no compensation can be awarded. The appellants have challenged the award of the Tribunal. 2. Contention of the learned counsel for the appellants is that the learned Tribunal was wholly unjustified in holding that the deceased Ram Nath himself was negligent. Learned counsel argued that the Tribunal has not correctly appreciated the evidence. In this connection, reference was made to the statement of NAW-1 Kashmiri Lal, driver of the offending vehicle owned by respondent-State, who has stated that while they were coming from Sanganer towards Jaipur City during night, they found 4-5 camel cart near the place of accident. One cyclist was also following them. When he tried to overtake the camel carts, the cyclist suddenly came in the middle of the road and was hit by his vehicle. He tried to save him and even blown horn, but the accident took place. The cyclist was immediately taken to the hospital where he was declared brought dead. 3. Learned counsel for the appellants has argued that against this, the learned Tribunal has relied on the statement of Satya Narain, AW-3, the Assistant Sub-Inspector, who was also in the same vehicle, but he has given a twist to the story and stated that accident took place because bicycle rider due to fear and confusion could not control himself and suddenly came in front of the vehicle and the reason was that a person was walking on one side of the road with his dog and his dog suddenly came in front of the cycle. No injury was sustained by the cyclist, but he became unconscious. When he was taken to hospital, the Doctors declared him brought dead. He has denied that police was trying to overtake any one. He also denied the suggestion that he was trying to overtake the camel cart. No injury was sustained by the cyclist, but he became unconscious. When he was taken to hospital, the Doctors declared him brought dead. He has denied that police was trying to overtake any one. He also denied the suggestion that he was trying to overtake the camel cart. Learned counsel argued that both these witnesses are employees of the respondent-State and while the driver has spoken that the accident took place when he was trying to overtake the camel cart, the Assistant Sub-Inspector who was higher in rank stated false that they did not try to overtake any camel cart or any other vehicle. In the face of this witness, the conclusion arrived at by the learned Tribunal is that it was negligence on the part of the deceased himself. Learned counsel referring to the site plan Ex.5 has argued that in the site plan, which was prepared on the basis of information given by the witnesses and first inspection of the place of incident, the accident took place at 'X' place but the witness NAW-1 has tried to shift the place of incident from place 'X' to 'Y' which part of his statement has already been relied on by learned Tribunal, which is wholly unbelievable because AW-2 Bhairu, witness of the site plan has fully supported it. Learned counsel submitted that deceased at the material time was working on permanent basis with the Rajasthan State Electricity Board as Helper Gr.I. His salary certificate is on record as Ex.1. He was at the relevant time receiving a sum of Rs.2,639 in October, 1993. 4. Relying on the judgment of this Court in Oriental Insurance Company ltd. vs. Ram Gupta & Ors.-2007 ACJ 1754, learned counsel argued that the average income should have been doubled so as to take care of the future prospects. It is therefore prayed that the appeal be allowed. 5. While no one has neither appeared in this Court on behalf of respondents today and nor, has been appearing for past few dates even then the matter is considered on the basis of the findings recorded by learned Tribunal to find out whether those findings in the face of the evidence that has been adduced, can be sustained. 6. 5. While no one has neither appeared in this Court on behalf of respondents today and nor, has been appearing for past few dates even then the matter is considered on the basis of the findings recorded by learned Tribunal to find out whether those findings in the face of the evidence that has been adduced, can be sustained. 6. I may at the outset observed that the evidence if read cumulatively, does not support the conclusion arrived at by the learned Tribunal that it was the negligence and for that matter total negligence on the part of the deceased which lead to the accident and his consequential death. The two witnesses who have appeared namely Satya Narain, AW-3, Assistant Sub-Inspector of Police and Kashmiri Lal, NAW-1, the driver of the vehicle differed with each other as to the manner in which accident took place. While AW-1 Satya Narain has stated that accident took place when a dog suddenly came in front of cyclist and deceased on account of fear from the dog came in the middle of the road and was then hit by the vehicle, but the driver Kashmiri Lal, NAW-1 in his statement has rather given another version by stating that accident took place while he was trying to overtake 4-5 camel carts and the cyclist who was following them suddenly came in front of the vehicle. It is the driver who was driving the vehicle, therefore, his version has to be given more credence that the accident took place while the policy gypsy was trying to overtake 4-5 camel carts and suddenly hit the cyclist. The theory put forth by AW-3, Satya Narain that the cyclist came in front of police gypsy due to fear by a shock cannot be believed. In any case, it was the gypsy driver who had to drive the vehicle more carefully and vigilantly so as to ensure that no untoward incident took place and no one is hit by his vehicle. Even there was no external injury to the deceased. The evidence has proved that deceased died due to internal head injury. Ex.7, the postmortem report has given the cause of his death to be coma brought about as a result of antimortem injuries to the skull and brain and there were multiple injuries on the skull as is evident from the postmortem report. The evidence has proved that deceased died due to internal head injury. Ex.7, the postmortem report has given the cause of his death to be coma brought about as a result of antimortem injuries to the skull and brain and there were multiple injuries on the skull as is evident from the postmortem report. Ex.8, the mechanical inspection report of the vehicle also indicates that the front glass of the vehicle was broken and the radiator was also found to have received dent and also there was dent on the side mud guard. In view of this, the finding of the learned Tribunal that there was negligence of the deceased Ramnath himself cannot be sustained and is liable to be reversed. 7. Having held so, I find that deceased was 47 years old at the time of accident. According to salary certificate which was on record as Ex.1 he was receiving Rs.2639 as salary. His age at the relevant time was 47 years. At this age, according to judgment of Supreme Court in Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC) and also according to schedule appended to the Motor Vehicles Act, a multiplier of 13 should be applied by taking into consideration the future prospects of the deceased particularly when it is proved that he was in the regular employment of the Rajasthan State Electricity Board and his age at the relevant time was 47 years. According to the ratio of aforesaid judgment, 30% has been added for his future prospects. Taking into consideration the fact that there were only 3 dependents, 1/3rd deductions towards self expenses of deceased is made. On that basis the compensation is computed by counting the monthly income of Rs.2650 + 795 (30% of 2650) = 3445-1148(1/3rd of 3445) = 2300 (approx) x 12 x 13=3,58,800. The claimants shall also be entitled to interest @ 7.5% from the date of filing of claim petition. The appeal is consequently allowed.