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2011 DIGILAW 221 (CHH)

BINDA DEWANGAN v. SURENDRA KUMAR JAISWAL

2011-07-07

N.K.AGARWAL, RAJEEV GUPTA

body2011
AWARD As per Hon'ble Shri N.K. Aganval, J, 1. This is claimants' appeal seeking enhancement in the award dated 05.12.2006, passed by the Additional Motor Accident Claims Tribunal, Bhatapara, District Raipur (for short 'the Tribunal') in claim case No. 15/06. 2. On 22.12.2005, deceased Jhumuk Lal Dewangan was driving Boxer motorcycle bearing registration No. CG-04-C-2820 and one Gend Lal Sahu was sitting on the motorcycle as a pillion rider. When they reached near Pandey Medical Store, Simga, due to head-on-collusion took place between motorcycle and Truck bearing registration No. CG-10-A-9117, the driver of motorcycle i.e. Jhumuklal Dewangan succumbed to the injuries sustained in the said accident and pillion rider Gendlal sahu sustained multiple injuries. 3. As against Rs. 12,00,000/- claimed by the appellants i.e. legal representatives of deceased Jhumuk Lal Dewangan for his death against the driver/owner and insurer of the offending Truck, the Tribunal awarded a total sum of Rs. 1,46,000/-. 4. The Tribunal, on a close scrutiny of the evidence led, held: respondent No. I i.e. driver of the Truck and deceased Jhumuklal i.e. driver of motorcycle, both jointly responsible to the cause of accident and apportioned inter-se negligence between them in the ratio of 40:60%; assessed the income of the appellant as Rs. 15,000/- per annum as prescribed under IInd Schedule appended to Section 163-A of M.V. Act; deducted 1/3rd of it towards personal expenses of the deceased and assessed the yearly dependency of the claimants at Rs. 10,000/-, applied multiplier of 16 and assessed the amount of compensation as Rs. 1,60,000/- on account of loss of dependency. The Tribunal further awarded Rs. 82,000/- on other heads and this awarded total sum of Rs. 2,42,000,-. However, the Tribunal deducted 60% of Rs. 1,60,000/- on account of negligence of deceased motorcycle driver, and thus awarded total amount of Rs.I ,46,000/as compensation in favour of the claimants along with interest @ 9 percent from the date of application till its actual payment. 5. Shri Prakash Mishra, learned counsel for the appellant would submit the Tribunal has erred in assessing the• income of the deceased as Rs.15,000/and in holding deceased responsible for causing accident to the extent of 60% ignoring the evidence adduced by the appellants and thus erred in awarding low amount of compensation which deserves to be suitably enhanced. 6. 5. Shri Prakash Mishra, learned counsel for the appellant would submit the Tribunal has erred in assessing the• income of the deceased as Rs.15,000/and in holding deceased responsible for causing accident to the extent of 60% ignoring the evidence adduced by the appellants and thus erred in awarding low amount of compensation which deserves to be suitably enhanced. 6. On the other hand, Shri Sudhir Agrawal, learned counsel appearing for respondent No. 3/Insurance Company supported the award impugned and would submit that in the facts and circumstances of the case, amount awarded by the Tribunal is just and reasonable and needs no interference. 7. We have heard the learned counsel appearing for the parties and perused the award impugned. 8. Though, the appellants/claimants have pleaded that deceased was working as a Salesman in firm M/s International Scientific Service and was getting 5000/- per month salary and was also having income of Rs. 3000/- per month from agriculture and thus used to earn Rs. 8000/- per month, but failed to substantiate the same by adducing cogent and clinching documentary/oral evidence therefor, therefore, we do not find any infirmity in the findings recorded by the Tribunal that appellants have failed to prove the income of the deceased as pleaded by them. However, the Tribunal has erred in taking into consideration the notional income of Rs. 15,000/- as prescribed in Second Schedule in the year 1994 as income of the deceased. 9. Section 163-A of the Act where-under the Second Schedule was introduced in the year 1994 reads as under : "163-A. Special provisions as to payment of compensation on structured formula basis.-(I) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.-For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923). Explanation.-For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule." 10. The above quoted Sub-Section (3) of Section 163-A of the Act mandated the Central Government to amend the Second Schedule from time to time keeping in view the cost of living. 11. As the Central Government has failed in amending the Second Schedule as provided in Sub-Section (3) of Section 163-A of the Act, the Courts/ Tribunal can take judicial notice of increase in the prices of essential commodities and the cost of living during the period between the introduction of the Second Schedule in the year 1994 and the date of accident in the given case. 12. Now, reverting to the present case, the unfortunate accident wherein claimants' bread earner Jhumuk Lal Dewangan lost his life took place in the year 2005. If the overall circumstances and increase in the prices of essential commodities and the cost of living between the year 1994 and 2005 are taken into consideration, the notional income of Rs. 15,000/- prescribed in the Second Schedule in the year 1994 would certainty come to Rs. 36,000/- in the year 2005. We, therefore, propose to re-compute the compensation taking the income of the deceased at Rs. 36,000/- per annum. 13. After deducting usual 1/3rd of it towards personal expenses of the deceased, appellants' annual dependency works out to Rs. 24,000/- per annum. Looking to the age of the deceased as 38 years at the time of accident, in the light of dictum of Supreme Court in case of Sarla Verma (Smt.) & others Vs. Delhi Transport Corporation and another), wherein multiplier of 15 has been prescribed .for the age group of 36-40 years, we deem it proper to apply multiplier of 15. Looking to the age of the deceased as 38 years at the time of accident, in the light of dictum of Supreme Court in case of Sarla Verma (Smt.) & others Vs. Delhi Transport Corporation and another), wherein multiplier of 15 has been prescribed .for the age group of 36-40 years, we deem it proper to apply multiplier of 15. By multiplying claimants' annual dependency by multiplier of 15, the amount of compensation would be Rs. 3,60,000/- (24,000 x 15). The claimants are further entitled to Rs. 15,000/- on other heads (Rs. 5000/- each for loss of consortium, loss of estate and funeral expenses), and thus become entitled for total compensation of Rs. 3,75,000/-. 14. The Tribunal has found, deceased Jhumuk Lal Dewangan's negligence in the said accident to the extent of 60%, on a careful examination of evidence and material available on record, it is clear that as per spot map filed by the appellants/claimants (Ex. A/3), the motorcycle was running to his right side i.e. on wrong side and due to head-on-collusion took place between Truck and motorcycle the said accident had occurred resulting in death of Jhuml.k Lal Dewangan. 15. As per Rule 2 of Rules of Road Regulations, 1989, the driver of motor vehicle shall drive the motor vehicle as close to left hand side of the road as may be expedient and shall allow all traffic which is proceeding in the opposite direction to pass on his right hand side. 16. At the time of accident deceased Jhumuk Lal was running the motorcycle in the wrong side i.e. towards his right side of the road and thus was running motorcycle in breach of traffic rules. Thus, it appears that, deceased was negligent in driving the motorcycle. It is also equally true that whenever a Truck driver drives a vehicle on the main road, he is also required to see persons or vehicle coming from opposite direction. The driver of the offending Truck, being a driver of heavier vehicle was having greater responsibility. Therefore, in our opinion, the Tribunals' findings regarding negligence of motorcycle driver to the extent of 60% is not correct. The driver of the offending Truck, being a driver of heavier vehicle was having greater responsibility. Therefore, in our opinion, the Tribunals' findings regarding negligence of motorcycle driver to the extent of 60% is not correct. Looking to every aspects of the matter, the motorcycle driver and Truck driver can be held equally responsible for the accident and therefore it can be said that Truck driver as well as deceased motorcycle driver have contributed to the cause of accident to the extent of 50%. 17. After deducting 50% of the amount towards contributory negligence of the deceased, the amount of compensation payable to the claimants becomes Rs. 1,87,500/-. After deducting the amount awarded by the Tribunal i.e. Rs. 1,46,000/-, additional amount of compensation payable to the claimants works out to Rs. 41,500/-. 18. The claimants are further awarded a sum of Rs. 3500/- towards uantified amount of interest on the enhanced amount of compensation of Rs. 41,500/-. 19. For the foregoing reasons, the appeal filed by the appellant claimants' for enhancement of the compensation is allowed in part. The compensation of Rs. 1,46,000/- awarded by the Tribunal is enhanced to Rs. 1,87,500/- with further quantified amount of interest of Rs. 3,500/- on the enhanced amount of Rs. 41,500/-. Rest of the' conditions mentioned in the award shall remain intact. The award stands modified to the above extent. 20. The respondent No. 3/0rientllInsurance Company Limited, is granted three months' time to deposit enhanced amount of compensation before the concerned claims Tribunal. No order as to costs. Appeal Partly Allowed.