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2011 DIGILAW 2364 (RAJ)

Union of India v. Barkat

2011-11-04

MOHAMMAD RAFIQ

body2011
RAFIQ, J.—This appeal has been preferred by Union of India against the award of the Motor Accident Claims Tribunal, Beawar in claim case No.304/04. The claimants approached the Tribunal for want of compensation on the ground of death of Shahabudin, husband of respondent-claimant No.1 and father of respondent No.2, which took place on 10.4.2004. The accident took place because of rash and negligent driving of truck No.RSO 9732 by respondent-driver Hari Singh, who was an employee of the Indian Railways and the truck was owned by the Indian Railways. The deceased was riding motor cycle No.RJ-01/11M 5465. Even though the claim was made for compensation of Rs.39,36,000, but the Tribunal has awarded a total sum of Rs.3,56,000/- as compensation. 2. Contention of the learned counsel for the appellant is that the accident had taken place due to negligence of the deceased because he hit the truck of the appellants from behind. He was driving the motor cycle and hit the truck of the appellants from behind, in the process of overtaking. In this connection, learned counsel invited attention of the Court towards the mechanical inspection report of the incident Ex.P13 to argue that truck was hit by the motor cycle from the rear side and it was therefore not the negligence of the truck driver. Alternatively, learned counsel argued that even if it is to be held that the truck was somehow negligent then also it may be said to be a case of composite negligence in the proportion of 50:50 and the compensation that was directed to be paid should be reduced to half in so far as the liability of the appellants is concerned. 3. Learned counsel for the appellants argued that there was no proof with regard to age of the deceased that he was 28 years of old and the claimants should have been required to pay the compensation according to age because this is the sole basis on which the multiplier is applied for arriving at the sum payable as compensation. 4. Learned counsel argued that there was no satisfactory evidence as regards the income of the deceased. The Tribunal could not have accepted the income of the deceased to be at Rs.1500 per month and on that basis computed compensation. 5. 4. Learned counsel argued that there was no satisfactory evidence as regards the income of the deceased. The Tribunal could not have accepted the income of the deceased to be at Rs.1500 per month and on that basis computed compensation. 5. On the question of contributory negligence, learned counsel referred to the statement of NAW-1 Bharat Kumar, the khalasi of the truck and argued that according to his evidence, the negligence was that of motor cycle rider. 6. Shri J.P. Gupta, learned counsel for the respondents has argued that evidence was given with regard to age of the deceased to be 28 years, which fact is also corroborated from the fact that the claimant No.1 Smt. Barkat, wife of the deceased was aged 24 years and claimant No.2 Yakub was 2 years when the claim petition was filed. 7. As regards the contributory negligence, learned counsel argued that NAW-1 Bharat Kumar in his statement under Section 161 Cr.P.C. has stated that truck driver gave horn and also indication by hand to turn to his right side and the accident took place due to the mistake of the motor cycle rider. It was argued that it was not a case where the accident took place due to overtaking, but the accident took place due to the fact that the truck turned towards right side where Shahabudin was riding the motor cycle, which is on his correct side, but the accident took place because of sudden turn of the truck. Learned counsel also argued that according to the site plan, the negligence of the deceased motor cycle rider cannot be proved. No contrary proof about the age of the deceased has been produced by the police. As regards the income, learned counsel argued that the deceased even though was a Mason and was earning a sum of Rs.150-200 per month, his monthly income should have been accepted as Rs.4500-6000, but the learned Tribunal has accepted his income only at Rs.2250/- per month on notional basis, accepting his daily wages to be 75 per day and out of that after making deduction of 1/3rd, towards his own expenses, dependency has been estimated only at Rs.1500/-. The award is therefore just and reasonable. 8. The award is therefore just and reasonable. 8. On hearing the learned counsel for the parties and perusing the material on record, I find that as regards the age of the deceased, the evidence that was adduced by the claimants proved the age of the deceased to be 28 years, which fact has not at all been rebutted by the appellant. Claimant-wife has disclosed her age to be 24 years at the time of accident and similarly claimant No.2 son of the deceased was 2 years at that time. Thus, age of both of them probablised the correctness of the age of the deceased to be 28 years as claimed by the claimants. No evidence to the contrary has been adduced by the appellants, therefore, no infirmity is found in so far as the finding of the Tribunal about the age is concerned. On that basis, the multiplier of 18 has been applied for the age group of 25-30 as per second schedule of the Motor Vehicles Act. As regards the income, the evidence was adduced that the deceased was earing a sum of Rs.150-200 per day because he was working as Mason. On that basis, his monthly income was claimed as Rs.4600-6000, but the learned Tribunal on the safer side accepted the income of the deceased to be Rs.75 per day, which cannot be said to be unreasonable and excessive because in 2004 when the accident took place, the minimum wages was not less than the aforesaid amount and therefore the income on that basis at the rate of Rs.2250 cannot be said to be unjust and unreasonable, which after making deduction of 1/3rd towards self expenses was taken as Rs.1500 per month and on that basis, the computation of compensation has been made. I do not find any infirmity in the award of compensation to the tune of Rs.3,24,000 by applying the multiplier of 18 and also total amount Rs.3,56,000. 9. Learned counsel for the appellants however at this stage submitted that vide order of this Court dated 2.1.2007, 50% amount was ordered to be deposited with the Tribunal and it was directed that the claimants shall be entitled to receive interest on the said 50% amount. The claimants may not therefore be paid interest on that 50% amount. Further prayer has been made for waiver of interest on remaining 50% amount. 10. The claimants may not therefore be paid interest on that 50% amount. Further prayer has been made for waiver of interest on remaining 50% amount. 10. I am not persuaded to uphold the prayer for waiver of interest on remaining 50%. However, the other prayer that interest of 50% having already been paid, the appellants are not required to again pay interest on that 50%, is justified. It is therefore directed that if the claimants have received the interest on 50% amount as directed by this Court in the order dated 21.3.2007, the appellants are not again required to pay interest on that amount, however, they shall be entitled to withdraw the 50% amount, which has been deposited by order dated 2.1.2007. The appellants shall however pay remaining 50% to the claimants with interest as per the direction of the Tribunal within a period of three months from the date copy of this order is produced before them. 11. In the result, I do not find any merit in the appeal as well as cross objection and both are accordingly dismissed.