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2011 DIGILAW 2379 (RAJ)

Kasturi Devi v. Sardar Singh

2011-11-08

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been filed by the claimant-appellants aggrieved by the award of the Motor Accident Claims Tribunal Behror, District Alwar dated 5.1.2001 whereby, claim petition filed by the claimant-appellants was dismissed. The Tribunal dismissed the claim petition holding that the deceased himself was responsible for the accident. 2. Learned counsel for the appellants citing Section 43 of the Evidence Act, 1872 has argued that the findings recorded by the learned Tribunal in other two claim petitions could not have been read against the claimants in the present case to hold that deceased-Girdharilal owner of Truck No.RNG-3479 and who was driving the truck himself at the relevant time was negligent and not the driver of another Truck No.RJ.02-1696. It was argued that mere fact that in the first information report that was lodged by Amar Singh, it was stated that deceased-Girdhari Lal was said to be negligent and responsible for the accident by driving the vehicle rashly and negligently and conclusion to that effect given by the Tribunal could not be a reason to hold the deceased himself negligent and to reject the claim petition on that basis. Learned counsel argued that statement of the witnesses given in those two claim petitions namely; Claim Case Nos.76/1994 and 77/1994 decided by the same Tribunal could not be read against the appellants because in one of the claim petitions i.e. in Claim Case No.77/1994, the award was passed on the basis of compromise and secondly in Claim Case No.76/1994, the Insurance Company failed to adduce any evidence and on that basis, deceased-driver of Truck No.RNG-3479 Girdharilal was held negligent. It was argued that at the maximum, it can be said to be a case of composite negligence and not total negligence on the part of Girdharilal. Learned counsel argued that statements of three eye-witnesses, whose statements were recorded in the present case could not be straightway made a basis to hold total negligence on the part of husband of claimant-appellant No.1 and father of claimant-appellants No.2 to 6. 3. Although, no one has put in appearance for the insurance company, however on the basis of analysis of the record and the award, it has been found by this Court that in claim petitions, no definite finding was given by the learned Tribunal to hold that total negligence on the part of Girdharilal, driver of Truck No.RNG-3479. 3. Although, no one has put in appearance for the insurance company, however on the basis of analysis of the record and the award, it has been found by this Court that in claim petitions, no definite finding was given by the learned Tribunal to hold that total negligence on the part of Girdharilal, driver of Truck No.RNG-3479. The findings of the learned Tribunal in Claim case No.77/1994 decided vide award dated 15.4.1998 do not found anywhere because the award was passed on the basis of compromise. Although those claim petitions were arising out of the injury cases. In Claim Petition No.76/1994 decided vide award dated 7.9.2000 although a finding on Issue No.1 has been recorded by the learned Tribunal on the basis of evidence adduced by the claimants but the Tribunal has held that no evidence in rebuttal was given by the insurance company. In that case, insurance company of both the vehicles were impleaded as party but neither of the insurance companies adduced any evidence. 4. In the circumstances, this have to be examined whether or not it was a case of total negligence on the part of Girdharilal, the deceased driver of Truck No.RNG-3479. 5. It is alleged in the FIR lodged by Amar Singh that Truck No.RNG-3479 was coming from Delhi to Behror being driven by deceased-driver Girdharilal in a rash and negligent manner, which hit another truck bearing Truck No.RJ.02-1696 from the front. Driver and Khallasi of Truck No.RNG-3479 both died and their dead bodies had to be taken out after breaking of the cabin. Police has also accepted their version. Although, site plan has been exhibited as Exh.P.1 but it reveals that the truck that was being driven by Girdharilal was in the middle of the left side of the road i.e. at the half point from the middle of the road from the left side of the road. Learned Tribunal has not believed the version of these three witnesses on the premise that there is no mention of these witnesses in the police investigation and none of them have put their signatures in the fard of site plan. Tribunal could not completely ignore the site plan. Learned Tribunal has not believed the version of these three witnesses on the premise that there is no mention of these witnesses in the police investigation and none of them have put their signatures in the fard of site plan. Tribunal could not completely ignore the site plan. Cross-examination has not been made from three eye-witnesses i.e. AW3 Kanhaiyalal driver of another truck, AW4 Babulal, driver of yet another truck, who was taking tea in a hotel in front of which the accident had taken place and AW5 Gordhan also a driver. From their version although it cannot be said that it was total negligence on the part of the driver of another Truck No.RJ.02-1696 but this much is evident that negligence on the side of deceased-Girdharilal driver of Truck No.RNG-3479 is more than the driver of Truck No.RJ.02-1696. But it cannot be said that it was total negligence on the part of Girdharilal. No finding as such has been recorded by the Tribunal in Claim Case No.77/1994 because that was decided on the basis of compromise. In Claim Case No.76/1994 though such finding was recorded but the present claimants were not impleaded as party in that case. There was no contrary evidence before the Tribunal other than what was produced by the injured-claimants. Insurance company, claimants and owner of Truck No.RJ.02-1696 did not adduce any evidence. That finding probably cannot bind the appellants herein. 6. In the circumstances, the composite negligence of deceased-Girdharilal driver of Truck No.RNG-3479 and driver of Truck No.RJ.02-1696 is assessed in the ratio of 75% : 25% respectively. The accident took place in the year 1994 and in this view of the matter the statement of AW1 Smt.Kasturi Devi to the effect that income of the deceased was Rs.6500/- per month, cannot be accepted. At the maximum, income of the deceased can be said to have been Rs.3000/- per month. At the relevant time, age of the deceased was 45 years therefore multiplier of 14 can be applied as per the judgment of Supreme Court in Sarla Verma & Others vs. Delhi Transport Corporation & Another : (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC) and Second Schedule appended to the Motor Vehicles Act, 1988. Keeping in view the fact that number of dependents are six, hence as per the aforesaid judgment, 1/4th should have been deducted towards the own expenses of the deceased. Therefore, after deduction of Rs.750/-, amount comes to Rs.2250/- per month under this head. Computing thus : 2250x12x14, the amount comes to Rs.3,78,000/- and as per the composite negligence on the part of deceased-Girdharilal in the ratio of 75%, the claimant-appellants are thus entitled to receive compensation as per entitlement to the extent of 25% amounting to Rs.94,500/-. The appellants shall be entitled to interest @7.5% over the amount of compensation of Rs.94,500/- from the date of filing of the claim petition. 7. The appeal is thus allowed in part. Record be transmitted back to the Tribunal forthwith.