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2011 DIGILAW 2741 (RAJ)

United India Insurance Co. Ltd. v. Santosh Khatik

2011-12-13

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—These two appeals which have been filed against the common award dated 5/7/2004 passed by the Motor Accident Claims Tribunal, Jaipur. Tribunal under the aforesaid award granted compensation in the sum of Rs.13,55,200/- however it held the deceased to be responsible for contributory negligence to the extent of 50% and therefore reduced the amount of compensation to Rs.6,77,600/-. 2. Learned counsel for the appellant insurance company has argued that there was no definite proof of income of the deceased, who was only 25 years old. Tribunal has relied on the oral submission of the widow of deceased AW2 Santosh and father AW3 Hukumchand, who have stated that deceased used to earn Rs.7000-8000/- per month. He was trading in livestock and used to collect goats and sheeps from the rural areas and sell them in the livestock market at Jaipur to Ajmer Road Pulisiya. Kind of the business the deceased was doing in the year 2000 could not have fetched the income of Rs.7000-8000/- per month. In cross-appeal, learned counsel for the appellant insurance company has argued that the evidence also proved that the deceased was sitting in the 'dola' (back portion of the truck) and when the accident took place, due to sudden jerk, he fell down on the road and as a result of sudden fall, he died therefore learned Tribunal rightly held him responsible for contributory negligence of 50% and therefore award of the Tribunal does not require any interference by this court on the aspect of income and the finding of the Tribunal that the deceased was earning Rs.7000-8000/- per month be set-aside and at the maximum the deceased can be held to be earning Rs.3,000/- per month and not more than that. 3. Learned counsel for the claimants has argued that when all the three witnesses have proved in their statements that the monthly income of the deceased was Rs.7000-8000/- per month and they have not been subjected to any cross-examination, therefore their testimony has to be accepted as the income of the deceased having been proved by their testimony and thus the finding of the Tribunal can be held justified, which is based on evidence and where there is no evidence in rebuttal by the insurance company, which would justify interference by this court. It was argued that merely because the deceased was sitting in the back portion of the truck, which has been referred to as "dola' as stated by AW3 Hukumchand in his statement before the court does not mean that the deceased was responsible for the contributory negligence to the extent of 50%. 4. I have given my anxious consideration to the rival submission and perused the material available on record. 5. Although it is correct that AW1 Panchuram, AW2 Santosh and AW3 Hukumchand, who were sitting in the cabin have stated that deceased used to earn Rs.7000-8000/- per month but then to say that their testimony should be accepted by the court on its face value merely because there is no evidence in rebuttal is also not correct. There are two factors, which have to be considered that first is that all the claimants have asserted that the deceased used to collect goats and sheep from the rural areas and would carry them to the livestock market in Jaipur for sell and thereby earned the money and second is that the deceased was aged only 25 years. 6. There is also the evidence that proves that deceased-Suganchand was sitting at the backside of the truck, which AW3 Hukumchand has referred to as "dola" but this Hukumchand has stated that they were coming in the truck to the 'bakra mandi' at Jaipur. He was sitting in the cabin, Tarachand, Raju and deceased were sitting behind the truck. There were 25-26 goats and sheep. This witness and all these three witnesses used to trade in this purchase and sale of the goats and sheep. This indicates that deceased was though working in this trade but he was working with them. When subjected to critical examination, evidence of these witnesses was to the effect that monthly income of the deceased was Rs.7000-8000/- per month. For all these reasons, this income cannot be straightway accepted however contention of the learned counsel for the appellant-insurance company that deceased would be merely earning Rs.3,000/- also cannot be accepted because that would be the income of an unskilled labour at that time. The truth lies somewhere in between, which is that the deceased must have been earning atleast Rs.5,000/- per month and on that basis, this Court proceeds to make computation of income. 7. The truth lies somewhere in between, which is that the deceased must have been earning atleast Rs.5,000/- per month and on that basis, this Court proceeds to make computation of income. 7. Before however proceeding further, shall I deal with the question whether deceased can be held responsible for contributory negligence? 8. It is indeed difficult to comprehend that how the deceased can be held liable for contributory negligence when he was sitting on the backside of the truck with the goats & sheeps. He fell down on the road because of the accident as the offending vehicle hit the truck in which he was travelling from the opposite direction. This could be said to be composite negligence of truck-driver and driver of the offending vehicle and the Tribunal could hold it to be a case of if evidence justified, composite negligence on the part of both the drivers and not of the contributory negligence of the one, who died in the accident. Deceased admittedly herein was travelling with goats and sheep and was sitting in the backside of the truck i.e. in the main body of the truck. Finding of the Tribunal that he was responsible for the contributory negligence has to be held to be perverse and erroneous finding and deserves to be set-aside. 9. In view of above, both the appeals deserve to succeed although for different reasons. 10. Adverting now to the question as to what compensation deserves to be awarded to the claimants as the age of the deceased at the time of accident was 25 years and 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), multiplier of 18 has been awarded. Considering the income of the deceased to be Rs.5,000/- per month and after making 1/4th deductions, contribution to the family would come to Rs.3750/- per month. 11. In the result, both the appeals are allowed. The finding of the learned Motor Accident Claims Tribunal, Jaipur given in award dated 5/7/2004 holding 50% contributory negligence on the part of deceased-Suganchand is set-aside. 11. In the result, both the appeals are allowed. The finding of the learned Motor Accident Claims Tribunal, Jaipur given in award dated 5/7/2004 holding 50% contributory negligence on the part of deceased-Suganchand is set-aside. The said award is modified in following terms:- (a) Rs.5,000/- p.m. income (b) 5,000x12=Rs.60,000/- annual income (c) Rs.45,000/- (60,000-15,000) 1/4th deduction (d) 45,000x18=Rs.8,10,000/-(multiplier of 18) (e) Rs.70,000/- awarded for 'loss of consortium','loss of love & affection' & 'care to parents' is maintained. (f) 8,10,000+70,000 = 8,80,000/- 12. Claimant-appellants are entitled to receive Rs.8,80,000/- as compensation together with interest as directed by the Tribunal. Record be transmitted back to the Tribunal forthwith. 13. Compliance of the judgment shall be made within a period of three months from the date of receipt of certified copy of this order.