Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 2487 (RAJ)

National Insurance Co. v. Kashkandha Meena

2011-11-17

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by non-claimant-appellant National Insurance Company Limited, assailing award dated 04.12.2002 of learned Motor Accident Claims Tribunal, Jaipur (Rajasthan State Cooperative Tribunal, Jaipur), in MAC Case No.1312/1997, by which learned Tribunal awarded a compensation of Rs.16,80,000/- in a death claim, in favour of the claimants. 2. Deceased Ram Singh Meena, who was husband of claimant-respondent No.1, father of claimant-respondents No.2 to 5 and son of respondent No.6, was going on a motorcycle No.RJ-14-M-3496 from Jhalrapatan to Teendhar on 12.05.1997. When he reached the public road near village Bagdhar at 9.45 AM, a trolla No.GJ-7X-6048, being driven by non-claimant-respondent No.7 Suresh Kumar, came from opposite direction, while taking a turn, struck the motorcycle, as a result of which Ram Singh Meena died on the spot. Learned Tribunal, upholding aforesaid plea of claimants and accepting monthly income of deceased to be Rs.11,600/-, applying the multiplier of 15 at the age of 41 years, determined compensation at Rs.16,65,000/- for loss of dependency. In addition thereto, an amount of Rs.15000/- was awarded cumulatively for loss of consortium, love and affection, attendant, funeral expenses and estate loss, and thus total compensation of Rs.16,80,000/- was awarded as compensation. 3. Shri Vizzy Agrawal, learned counsel for appellants contended that learned Tribunal has failed to appreciate the evidence in its true perspective. Despite specific averment in the reply to the claim petition that the truck trolla was not involved in the accident and, despite there being no evidence of involvement of said trolla, learned Tribunal has erred in law in holding that the accident involved aforesaid trolla. None of the witnesses examined by claimants could establish from their statements that said truck-trolla was involved in the accident. AW-1 Smt. Kashkandha Meena is admittedly not an eye witness. AW-2 Ramaotar, who claimed himself to be an eye witness, in his cross-examination, admitted that he had stated before the Chief Judicial Magistrate, Jhalawar, in the criminal trial of the driver that he did not see the accident taking place. He reached the site of accident after it had taken place. Learned Tribunal, therefore, discarded the statement of AW-2 Ramaotar. These witnesses failed to stand the scrutiny of cross-examination. He reached the site of accident after it had taken place. Learned Tribunal, therefore, discarded the statement of AW-2 Ramaotar. These witnesses failed to stand the scrutiny of cross-examination. Even though the court witness CW-1 Gajraj Singh has stated that trolla was involved in the accident but he said that he noticed the accident after the trolla had gone 400 feet away from the place of accident and that he could not notice its registration number. Another court witness CW-2 Tejraj Singh, author of first information report and investigating officer of the criminal case, failed to prove that the accident was caused by the truck aforesaid. He stated that registration number of truck-trolla was told to him by local villagers but he could not name any such villager. The site plan was prepared at 10.35 AM on the place of accident itself but registration number of the truck was not disclosed therein. Learned Tribunal also failed to appreciate the statement of NAW-1 Suresh Kumar, driver of the truck, who asserted that his truck was not involved in the accident. He was caught by the police from a 'dhaba' where he had halted at around 8.00 AM on 12.05.1997. The said 'dhaba' was 7 kilometers away from the place of accident. The driver has been acquitted by the court in the criminal trial because offence against him was not proved. The Tribunal has erred in law in discarding the testimony of Suresh Kumar only on the ground that he did not file his reply to the claim petition. It was further argued that mechanical inspection report of the insured truck (Exhibit-10) shows that it did not contain any fresh blood stains. It has come in the evidence of AW-2 Ramaotar and CW-1 Gajraj Singh, that at the site of the accident, there is turn of as much as 110 degree. Thus, there is every possibility of the motorcycle getting slipped as the deceased was to reach Ratlai, which was 25 kilometer away therefrom, to attend the duty. In order to reach Ratlai on duty in time at 10 AM and it was already 9.45 AM. He might have driven the motorcycle speedily and on the turn it got slipped. Multiplier of 15 is not to be mechanically applied just because the age of the deceased was claimed to be 41 years at the time of his death. In order to reach Ratlai on duty in time at 10 AM and it was already 9.45 AM. He might have driven the motorcycle speedily and on the turn it got slipped. Multiplier of 15 is not to be mechanically applied just because the age of the deceased was claimed to be 41 years at the time of his death. Lesser multiplier should be applied for high income group. Learned counsel, in support of his arguments, relied on decision of the Supreme Court in Kerala State Road Transport Corporation vs. Susamma Thomas (Mrs.) AIR 1994 SC 1631 = RLW 1995(2) SC 19 and United India Insurance Co. Ltd. vs. Patricia Jean Mahajan and Others – AIR 2002 SC 2607 = RLW 2002(4) SC 526. The quantum of compensation that has been awarded, if invested in a bank, would fetch more amount than what would have been contributed by the deceased to the family. Learned Tribunal has assessed the dependency after deducting an amount equivalent to 2 units out of total 10 units, on account of self-expenses of the deceased, from the total monthly income of Rs.11600/- and, thus learned Tribu-nal arrived at net loss of dependency at Rs.9250/-. Had the learned Tribunal adopted the universally acclaimed method of 1/3rd deduction, the monthly loss of dependency would have come to Rs.7733/- only. Other factors remaining the same, the compensation towards the loss of dependency would have come to Rs.13,91,940/- only instead of Rs.16,65,000/-. Learned Tribunal also erred in law in enhancing mon-thly salary from Rs.9250/- to Rs.12000/- by taking into consideration element of future prospects but it did not count for the future uncertainties such as demotion, termination etc. The compensation that has been ultimately awarded is, therefore, unjust and excessive. It is, therefore, prayed that impugned award may be set aside. 4. Per contra, Shri Sandeep Mathur, learned counsel for claimant-respondents, opposed the appeal and argued that acquittal of the driver in criminal trial, cannot be a reason to hold that the accident did not involve the vehicle trolla No.GJ-7X-6048, which was being driven by respondent No.7 Suresh Kumar. It is, therefore, prayed that impugned award may be set aside. 4. Per contra, Shri Sandeep Mathur, learned counsel for claimant-respondents, opposed the appeal and argued that acquittal of the driver in criminal trial, cannot be a reason to hold that the accident did not involve the vehicle trolla No.GJ-7X-6048, which was being driven by respondent No.7 Suresh Kumar. Learned counsel argued that while the offence of the driver in criminal trial is required to be proved by greater degree of proof, namely, in that his offence in those proceedings had to be proved beyond reasonable doubt, whereas in a proceeding of claim case before Motor Accident Claims Tribunal, the involvement of the vehicle needs not be proved by same standard of proof where the rule of proof is by preponderance of evidence. It is argued that even if some witnesses in criminal trial have chosen not to depose against driver, that does not mean that the claimants on that basis can be deprived of their rightful compensation. It was argued that when the notice under Section 133 of the Motor Vehicles Act, 1988, was served upon the respondent No.8, the owner of the trolla, he admitted that said vehicle at the material time was being drive by respondent No.7 Suresh Kumar. Learned counsel in this respect referred to Exhibit-3, the notice under Section 133 of the Act and reply thereto by the owner. Learned counsel also invited attention of the court towards site-plan (Exhibit-2) and argued that the motorcycle at the place of accident was found in a damaged condition. The marks of the double-tyre of the trolla were found close to the place where dead body of Ram Singh Meena was lying and that the marks of the tyres of motorcycle were also evident on the road from Jhalrapatan to Teendhar. Learned counsel also referred to the seizure memo (Exhibit-9) of the trolla wherein five mahendra tractors were loaded, to show that it had two tyres in front and four tyres in rear side. Reference was made to the seizure memo of the motorcycle, which was found in damaged condition. Handle of motorcycle was found having dent, clutch liver was broken, front mudguard having bend, meter-board broken, petrol tank having pressed, side-clutch-liver broken and chassis was found bend. Learned counsel has argued that this fact is also proved from mechanical inspection report of motor cycle (Exhibit-11). Handle of motorcycle was found having dent, clutch liver was broken, front mudguard having bend, meter-board broken, petrol tank having pressed, side-clutch-liver broken and chassis was found bend. Learned counsel has argued that this fact is also proved from mechanical inspection report of motor cycle (Exhibit-11). Referring to judgment of criminal court dated 01.04.1998 acquitting the driver, learned counsel argued that concluding part of the judgment clearly shows that the accused has been acquitted extending him benefit of doubt because the offence against him was not found to have been proved beyond reasonable doubt. Learned counsel argued that approach of learned Tribunal in accepting monthly salary of deceased at Rs.12,000/- and taking Rs.9250/- as loss of dependency, was just and legal and in conformity with judgment of the Supreme Court in Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and Another – (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC). It was argued that the witnesses have proved that the vehicle that caused the accident was the trolla, the police had reached immediately at the site of accident, first information report was immediately registered and trolla was chased and caught within the distance of 7 kilometers. Theory about it being found to have been parked at a 'dhaba' has been subsequently developed. Even driver NAW-1 Suresh Kumar himself, in his statement, did not deny that he did not pass that road on that day. Learned counsel for respondents has argued that even though, there is no appeal or cross-objection filed by respondents, but, considering the fact that deductions have wrongly been made of the amount which was part of salary of the deceased and, therefore, salary of the deceased should be accepted at Rs.12,543/- or at least Rs.12500/-. It is, therefore, prayed that the appeal be dismissed. 5. I have given my anxious and thoughtful consideration to rival submissions and perused the material on record. 6. Though the appellant insurance company has asserted before the Tribunal and now before this Court that the trolla was not met with the accident, yet the evidence in its totality is not such on the basis of which it can be said that the findings recorded by the Tribunal are perverse or otherwise erroneous. 6. Though the appellant insurance company has asserted before the Tribunal and now before this Court that the trolla was not met with the accident, yet the evidence in its totality is not such on the basis of which it can be said that the findings recorded by the Tribunal are perverse or otherwise erroneous. In our words, findings of learned Tribunal in proving the involvement of that trolla on available evidence cannot be said to be adverse or otherwise erroneous. So far as AW-1 Kashkandha Meena, she obviously was not present at the site of accident and, in fact, was much away at Jaipur on that day. She cannot, therefore, be accepted to be an eye witness of the accident. However, AW-2 Ramaotar has deposed that the accident took place between the trolla No.GJ-7X-6048 and motorcycle No.RJ-14M-3496. The motorcycle was going on the road from the side of Jhalrapatan to Teendhar and the motorcycle was on its correct side. The trolla was coming from opposite direction and it hit the motorcycle in a wrong direction. Then certain number of persons assembled and police also reached there. The motorcycle had monogram of State Bank of Bikaner and Jaipur and, people identified the deceased to be Branch Manager of said Bank at Ratlai. This witness has stated that there is a sharp turn at the place of accident which is of as much as 110 degree, whereas width of the road is merely 17-18 feet. This witness has further stated that in Jhalawar court also he stated that he saw the accident. The place of accident is clearly visible from his house. But when this witness was recalled for cross-examination, he admitted to have stated in his statement before the court in criminal trial that he did not see the accident. CW-1 Gajraj Singh is also an eye witness, who stated that his agriculture field was about 100-200 feet away from the place of accident. Upon seeing the accident, he came rushing there. He found a dead-body lying there. A motorcycle and a brief-case were lying there. The trolla, which had hit the motorcycle, had gone 400 feet away therefrom. Its registration number was not visible. The trolla had tractors loaded in it. The police was informed of the accident on telephone immediately by a village head Sujan Singh. Police reached there within 15-20 minutes time. A motorcycle and a brief-case were lying there. The trolla, which had hit the motorcycle, had gone 400 feet away therefrom. Its registration number was not visible. The trolla had tractors loaded in it. The police was informed of the accident on telephone immediately by a village head Sujan Singh. Police reached there within 15-20 minutes time. The police went in the direction in which trolla had gone and caught the trolla near Khandia-naka. The villagers had also accompanied the police personnel to identify the trolla. CW-2 Tejraj Singh has also stated that Station House Officer of the Police Station also reached at the site of accident, and the villagers, who had assembled there, told him that trolla No.GJ-7X-6048, which was carrying the tractors, has caused the accident. The villagers also told him the registration number of the trolla and the identification marks of the driver. Though, in the cross-examination, he admitted that he did not mention the name of the villagers, who informed him so, in the first information report and that, he did not conduct any test identification parade of the driver. When he was asked in cross-examination, he admitted that in his statement recorded during the criminal trial, he stated that there was no eye witness to the accident. Notwithstanding few contradictions here and there, the certain facts which have been clearly proved are that the place where the accident took place is a sharp turn of at-least 110 degree whereas the width of the road is merely 17-18 feet. The trolla was coming from opposite direction and it is known to every one that trolla has greater length than the normal trucks. When a trolla is being driven to take a turn, it has to be slowed down. At the same time, it is also a matter of common knowledge that while taking a turn, its rear wheels cover more area than the front wheel. The motorcycle was coming from opposite direction and it is, in those circumstances, that the motorcycle was hit and was crushed by rear wheels of the trolla. At the same time, it is also a matter of common knowledge that while taking a turn, its rear wheels cover more area than the front wheel. The motorcycle was coming from opposite direction and it is, in those circumstances, that the motorcycle was hit and was crushed by rear wheels of the trolla. The fact that the motorcycle was crushed, is evident from the site plan Exhibit-2, seizure memo Exhibit-8 and the mechanical inspection report of the motorcycle Exhibit-11, which cumulatively proved that the handle of the motorcycle was found having dent, clutch liver was broken, front mudguard was having bend, meter board was broken, petrol tank was found crushed, side clutch liver was found broken and chassis was found having bend. The accident took place on 12.05.1997 whereas driver of the trolla was acquitted by a court in criminal trial on 01.04.1998. It may be a fact that some of the witnesses, in two proceedings, were common and, while deposing at two places, might have contradictions in their statements. But it is also a fact that the witnesses when appeared in a criminal trial have tendency of deposing leniently but that cannot be a reason to discard the complete evidence recorded before the Tribunal. The evidence is also to the effect that the police was informed by villager Sajjan Singh and police had reached the site of accident within 15-20 minutes. The villagers informed the police about the fact that motorcycle was hit by a trolla and then some villagers accompanied the police in the direction in which the trolla had gone. The police chased the trolla in that direction and ultimately caught hold of it near Khandia-naka. Statement of the driver that he had halted at a 'dhaba' and the trolla was parked there and, in that state, he was caught, does not at all inspire any confidence and could not be accepted. Moreover, as rightly argued, the standard of proof in a criminal trial is very rigid where the guilt of the accused is to be proved beyond reasonable doubt, which means that he would be entitled to any reasonable doubt as to his involvement in an offence and, therefore, he was acquitted in the proceedings before the trial court. Moreover, as rightly argued, the standard of proof in a criminal trial is very rigid where the guilt of the accused is to be proved beyond reasonable doubt, which means that he would be entitled to any reasonable doubt as to his involvement in an offence and, therefore, he was acquitted in the proceedings before the trial court. However, the Tribunal, which, in terms of Section 166 of the Act, is not required to hold trial but, according to scheme of Act, it holds an enquiry for adjudication of claims for award of compensation in respect of accidents involving the death or bodily injury to persons, arising out of use of motor vehicles. The adjudication of claim in those proceedings has to be made by preponderance of probabilities. The quality of evidence, if not the quantity thereof, in totality of circumstances, clearly proves the involvement of trolla No.GJ-7X-6048, despite some lacunae in the investigation by the police and acquittal of the driver notwithstanding. Findings of learned Tribunal as to involvement of the trolla No.GJ-7X-6048 in the accident, thus cannot be faulted. 7. Contention of learned counsel for appellant insurance company that quantum of compensation is excessive and had this amount been invested in a nationalized bank, the same would have fetched much more amount of interest than what would have been contributed by the deceased to the family. The deductions should have been made of at-least 1/3rd towards self-expenses of the deceased, but that argument is noticed to be rejected for stated reasons. The approach/law has now undergone a change following the judgment of the Supreme Court in Sarla Verma, supra. The deduction to the extent of 1/3rd that was normally earlier, cannot now be taken as a rule of universal application. The Supreme Court in the aforesaid case of Sarla Verma, has held that where dependents are more in number, the deduction is to be of less than 1/3rd on the analogy that deceased in that event would have contributed more to the family rather than spending on himself and rightly so. In the present case, if the deceased had six dependents, namely, widow, mother and four children, it cannot be accepted that he would have been spending 1/3rd of his total earning on himself letting his six dependents survived only on 2/3rd. In the present case, if the deceased had six dependents, namely, widow, mother and four children, it cannot be accepted that he would have been spending 1/3rd of his total earning on himself letting his six dependents survived only on 2/3rd. In view of ratio of judgment of the Supreme Court in Sarla Verma, supra, only 1/4th could be deducted for the own spendings of the deceased. The learned Tribunal has excluded the deduction of provident fund from the income of the deceased, which was not correct. Form No.16 showing tax deduction at source has been produced on record as Exhibit-16 and salary certificate of the deceased has also been exhibited as Exhibit-15. These documents indicated that gross salary of deceased was Rs.12,543.13, out of which following deductions were made; Rs.920/- for provident fund loan, Rs.700/- for festival advance, Rs.210/- for housing loan, Rs.300/- for consumer loan, Rs.25/- for membership of association, Rs.782/- for provident fund contribution; thus, a total sum of Rs.2957/- was being made from his gross salary and he was being paid monthly salary of Rs.9606.13 (rounded off to Rs.9600/-). To this amount, an amount of Rs.2000/- has been added by learned Tribunal towards future prospects. Although, learned counsel for respondents has argued that even though, there is no appeal or cross-objection filed by respondents, but, considering the fact that deductions have wrongly been made of the amount which was part of salary of the deceased and therefore salary of the deceased should be accepted at Rs.12,543/- or at least Rs.12500/-. In view of the judgment of the Supreme Court in Sarla Verma, supra, and considering age of the deceased to be 41 years, 30% should be added to his income towards future prospects. Thus, computation of loss of dependency should be made accepting the salary of the deceased to be Rs.16000/- (12500+3750), but, in the absence of any appeal or cross-objection of the claimants, and, considering the total compensation, I do not deem it appropriate to accept that argument. Nevertheless, the amount of Rs.11600/- has been accepted as income of the deceased, and after deducting Rs.2350/-, which is roughly 1/5th of the total income, for his self-expenses, the net amount comes to Rs.9,250/- for loss of dependency, and if this is compared with 3/4th of the amount of Rs.16000/-, which comes to Rs.12,000/-, even then the claimants have much to lose. The multiplier of 15 at the age of 41 has been correctly applied. The amount of Rs.16,80,000/- cannot be said to be so excessive. The Tribunal has taken a very restrictive approach in awarding a sum of Rs.15,000/- cumulatively for loss of consortium, love and affection, guardianship, funeral expenses, estate loss etc., on which head much more amount should have been awarded. In totality of the circumstances, therefore, the award of compensation of Rs.16,80,000/- cannot be said to be excessive unjust or exaggerated. 8. In view of the above discussion, I do not find any merit in this appeal, which is accordingly dismissed.