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2015 DIGILAW 1691 (RAJ)

New India Assurance Company Limited v. Saroj Bala

2015-09-21

J.K.RANKA

body2015
JUDGMENT 1. - Instant appeal u/S. 173 of the Motor Vehicles Act, 1988 has been filed by the non-claimant-appellant against award dated 6-4-2012 passed by the Motor Accident Claims Tribunal (Fast Track), Behror (hereinafter referred to as 'Tribunal') in Claim Case No. 51/2011 (29/10) by which a compensation to the tune of Rs. 32,33,720/- has been awarded to the claimants-respondents. 2. The brief facts, which can be noticed, are that on 12-12-2009 at about 8.00 p.m., while one Randhir Singh Keshwana with one Jagmal Singh, was crossing the road of National Highway No. 8 at Behror Jaguwas Crossing, a Truck No. RJ-32/GA-1138, which was being driven by its driver in high speed, in rash and negligent manner, hit Randhir Singh Keshwana and resultantly he suffered severe injuries and died on the spot. An FIR to this effect came to be lodged at the concerned police station and the police, after investigation, filed charge-sheet against driver of the offending vehicle. A claim petition was filed by the dependent of the deceased Randhir Singh Kehswana before the Tribunal claiming compensation to the tune of Rs. 72,89,120/-. 3. The Tribunal, after analysing the material on record, held that the accident is proved and there was negligence of the driver of the offending vehicle and allowed a compensation of Rs. 32,33,720/- which has been assailed by the appellant-Insurance Company in the instant appeal. 4. Ld. counsel for the appellant-Insurance Company contended that there was negligence of the deceased (Randhir Singh Keshwana) and there was no fault of the driver of the offending vehicle and the Tribunal, without analysing the material on record, site plan etc., has wrongly held the driver of the offending vehicle to be negligent. Once the negligence of the deceased himself is proved as he was crossing the road in a wrong manner, in haste, without looking to the vehicles coming from both the sides, not realising that it is a national highway and for the mistake of the deceased himself, the appellant should not suffer. He further contended that when both the persons namely; the deceased-Randhir Singh Keshwana and Jagmal Singh are said to be together, while Randhir Singh Keshwana died but Jagmal Singh, who was by his side did not suffer any injury and was not hit and it is a story concocted by the claimants-respondents. 5. In the alternative, id. He further contended that when both the persons namely; the deceased-Randhir Singh Keshwana and Jagmal Singh are said to be together, while Randhir Singh Keshwana died but Jagmal Singh, who was by his side did not suffer any injury and was not hit and it is a story concocted by the claimants-respondents. 5. In the alternative, id. counsel for the appellant contended that since there was contributory negligence, therefore, entire amount cannot be allowed. He further contended that the claim has also been excessively allowed and there was difference in the salary certificate viz-a-viz the salary sheet and the multiplier has also been wrongfully applied of 15 as the age of the deceased has not been proved and thus contended that the order of the Tribunal is perverse and deserves to be reversed. 6. Per-contra, ld. counsel for the claim-ants-respondents contended that the Tribunal has correctly allowed the claim which is not required to be interfered with and on perusal of the site plan, it clearly proves that the offending vehicle was on a wrong side and even the investigation made by the police, also shows that the driver of the offending vehicle was negligent and because of fault of the driver of the offending vehicle, the offending vehicle hit the deceased who succumbed to the injuries and died. With regard to the excessive claim, he submitted that looking to the deceased being regular employee of a limited company, well established and the income has been computed based on the salary certificate after considering the statements recorded of accountant of the employer and thus contended that just and proper claim has been allowed as held by the Hon'ble Apex Court in several cases and therefore, the appeal deserves to be dismissed. 7. I have considered the arguments advanced by counsel for the parties and have perused the material available on record. 8. In my view, insofar as negligence is concerned, the Tribunal has rightly concluded that the driver of the offending vehicle was negligent. The police investigation also reveals that the entire negligence was of the driver of offending vehicle in causing of the accident. 8. In my view, insofar as negligence is concerned, the Tribunal has rightly concluded that the driver of the offending vehicle was negligent. The police investigation also reveals that the entire negligence was of the driver of offending vehicle in causing of the accident. The statement of Jagmal Singh (AW-2) was recorded who happens to be eye-witness and the testimony of Jagmal Singh duly proves that the driver of the offending vehicle was driving the vehicle in high speed, in a rash and negligent manner and therefore, in my view, once there is a finding of fact recorded by the Tribunal after analysing charge-sheet, FIR, site plan, notice u/Sec. 133 of Motor Vehicles Act, Panchnama, in my view, insofar as the negligence is concerned, I am not interfering with the order of the Tribunal. Insofar as the claim that Jagmal Singh was also going with the deceased and they were together, this contention of the counsel for the appellant is wholly unjustified as there could be a gap of even few inches which may make a difference because the vehicles on the National Highway, as they drive, generally remain on high speed and difference of seconds may make a lot of difference in causing casualty from person to person. It may be that the deceased may have been slightly ahead and after analysing the version of the eye-witness, in my view, no interference is called for so far as the negligence is concerned. It is also a fact that on perusal of the site plan (Ex. 3) that the deceased appears not to be at fault as the deceased was crossing the road at the cut and the driver, driving the offending vehicle, ought to have slowed down when approaching at a road inter-section, a road junction, pedestrian crossing or a road comer. It appears that the driver was in a high speed and did not notice particularly when there was darkness at above 8.00 p.m. when the incident happened. Therefore, it appears that the driver was negligent and did not slow down the vehicle and taking into consideration all these facts, the order passed by the Tribunal is well reasoned. Once this finding has been found to be proper, question of contributory negligence does not arise. 9. Therefore, it appears that the driver was negligent and did not slow down the vehicle and taking into consideration all these facts, the order passed by the Tribunal is well reasoned. Once this finding has been found to be proper, question of contributory negligence does not arise. 9. Insofar as the quantum is concerned, in my view, the Tribunal has certainly not taken into consideration several aspects about the correct age of the deceased to be 40 years. In my view, the same is without any adequate material and merely on the basis of the Panchnama and/or oral testimony of the claimant (Saroj Bala), wife of the deceased, the Tribunal has adopted age of the deceased to be 40 years, which, in my view, is an error committed by the Tribunal. During the course of arguments, counsel for the claimants-respondents contended that the deceased was a highly qualified technical person and was a Shift Brewer in Devans Modem Breweries Ltd. and on a query raised as to the educational qualification of the deceased, counsel for the claimants-respondents agreed that the deceased was well educated and unless being well educated, he would not have been appointed as a Shift Brewer in a Breweries Company and on a further query with regard to the certificate of Secondary School Examination of the deceased so as to know his exact date of birth, counsel for the claimants-respondents was not in a position to bring on record or assert any other material to come to the conclusion that the deceased was not 45 years of age or he was less than 40 years of age. Even as per cross-examination of Alkesh Kumar, the Accountant of the Limited Company, it shows that according to him and as per the record of the employer, the deceased was 45 years of age. Therefore, insofar as adopting the age is concerned, the Tribunal has certainly erred in applying the multiplier of 15 taking age of 40 years which, in my view, in the light of the judgment of the Hon'ble Apex Court in the case of Smt. Sarla Verma and Ors. v. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 : ( AIR 2009 SC 3104 ) is required to be adopted as 14 as against 15. 10. v. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 : ( AIR 2009 SC 3104 ) is required to be adopted as 14 as against 15. 10. Insofar as adopting of income by way of salary is concerned, argument of counsel for the appellant was that two certificates/ sheets have been placed on record and while the salary certificate shows gross income of Rs. 27,738/- including other allowances, the salary sheet, placed on record by the employer, shows gross salary of the deceased to be Rs. 19,845/- for the month of September, 2009; Rs. 22,800/- for the month of October, 2009; Rs. 22,800/- for the month of November, 2009 and so also Rs. 22,800 for the month of December, 2009 whereas he expired on 12-12-2009 where the gross salary for both the months, as per the above sheet, is shown to be Rs. 22,800/- (In the month of December, 2009, it was allowed partly since he expired in between). The Tribunal, taking into consideration the above facts, has adopted income at Rs. 20,600/- per month only which in my view, cannot be said to be excessive. The Tribunal, considering the judgment of the Hon'ble Apex Court in the case of Sarla Verma ( AIR 2009 SC 3104 ) (supra), has taken into consideration 30% to be future prospect which makes the total income of the deceased to be Rs. 26,780/-, which in my view, cannot be said to be excessive and unreasonable. 11. The Tribunal, while assessing the income, has taken into consideration as to the allowance, which was being drawn by the deceased and in my view, the Tribunal is justified because special allowance was being paid to him looking to the expertise of the deceased employee in technical side. Such allowance on perusal of the salary certificate, shows that it was on a regular basis and therefore, in my view, the approach of the Tribunal is just and proper. The other amount on loss of consortium, loss of love and affection is also reasonable and not excessive. 12. Consequently, except the fact that the multiplier is required to be reduced to 14 against 15 adopted by the Tribunal, the order of the Tribunal in every respect is upheld. 1 13. Consequently, the appeal is partly allowed. The other amount on loss of consortium, loss of love and affection is also reasonable and not excessive. 12. Consequently, except the fact that the multiplier is required to be reduced to 14 against 15 adopted by the Tribunal, the order of the Tribunal in every respect is upheld. 1 13. Consequently, the appeal is partly allowed. The award of the Tribunal is modified to the extent that the multiplier of 15 adopted by it is reduced to 14 and the Tribunal is directed to recompute/re-assess the award adopting multiplier of 14 treating the age of the deceased to be 45 years and after recalculation of the compensation, accordingly disburse the re-computed amount of compensation in terms and in the manner as has been directed by it in the award dated 6-4-2012 along with interest.Appeal partly allowed. *******