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2016 DIGILAW 1211 (RAJ)

Sajani v. Shanker Singh

2016-08-23

ARUN BHANSALI

body2016
JUDGMENT Arun Bhansali, J. These appeals are directed against the judgment and award dated 12.10.1999 passed by the Motor Accident Claims Tribunal, Bikaner ('the Tribunal'), whereby the Tribunal for death of Jahur Deen and Nathu @ Yusuf has awarded compensation to the tune of Rs. 1,95,000/- each and on account of contributory negligence has reduced the same by 50% to Rs. 97,500/- for both the claims. 2. The claimants filed the applications for compensation with the averments that on 23.09.1995, Jahur Deen was riding on a Motorcycle as pillion rider while Nathu @ Yusuf was driving the same when the Motorcycle met with an accident with one Tanker No. RSF-3281, which was being driven rashly and negligently, resulting in both, Jahur Deen and Nathu @ Yusuf falling down and suffered grievous injuries to which both succumbed. It was, inter alia, claimed that both the deceased were aged 22 years and were involved in livestock business besides agricultural operation and were earning Rs. 5,000/- per month. Based on the said averments compensation to the tune of Rs. 48,20,000/- and Rs. 48,30,000/- respectively was claimed. 3. The application was resisted by the driver and the State. The Tribunal while deciding the issue pertaining to the negligence came to the conclusion that the accident occurred on account of contributory negligence of both Nathu @ Yusuf as well as driver of the Tanker – Shanker Singh. While calculating the amount of compensation, the Tribunal came to the conclusion that the age of both the deceased was 22 years and that as the father of deceased in their statement could not prove the income being earned by Jahur Deen and Yusuf, the income of the deceased was taken at Rs. 15,000/- per annum and after deducting ?rd towards personal expenses, a multiplier of 17 was adopted and after awarding Rs. 10,000/- towards loss of consortium to the wife and Rs. 5,000/- each to the parents for loss of love & affection and Rs. 5,000/- towards funeral expenses, awarded a sum of Rs. 1,95,000/- each and thereafter deducted 50% towards contributory negligence and awarded a sum of Rs. 97,500/- as compensation to both the set of claimants. 4. It is submitted by learned counsel for the appellants that the finding of the Tribunal pertaining to contributory negligence is contrary to the material available on record and, therefore, the same deserves to be set aside. 97,500/- as compensation to both the set of claimants. 4. It is submitted by learned counsel for the appellants that the finding of the Tribunal pertaining to contributory negligence is contrary to the material available on record and, therefore, the same deserves to be set aside. It was submitted that from the site map (Exhibit-3) and the statement of eye witness Kadar Bux, it is apparent that the accident has taken place on extreme left side of the road i.e. the correct side of the Motorcycle and the Tanker has struck the Motorcycle on its (Tanker) wrong side and, therefore, the finding of the Tribunal, in this regard, deserves to be set aside. 5. It is further submitted that the Tribunal committed an error in deducting the amount of compensation based on his finding of contributory negligence in case of Jahur Deen, inasmuch as, the deceased was pillion rider and qua him if at all, the same would be a case of composite negligence and not contributory negligence. Further submissions were made that the Tribunal has awarded meagre compensation, inasmuch as, the income of the deceased has been taken based on the Second Schedule to the Motor Vehicles Act, 1988, which is applicable only in cases where there is no income, the multiplier of 17 has been wrongly adopted, which must be taken as 18 in view of law laid down by Hon'ble Supreme Court in the case of Sarla Verma and ors. v. Delhi Transport Corporation and anr.: (2009) 6 SCC 121 . Submissions were also made regarding non-consideration of future prospects looking to the age of the deceased. 6. Learned counsel for the respondent - State supported the findings. It is submitted that the statement of eye witness in view of the fact that the accident occurred on 23.09.1995 and he was about 200-250 ft. away from the site of accident cannot be believed. Further submissions were made that looking to the nature of the road, which has been indicated, it cannot be said that the Tanker driver alone was responsible for the accident and that the Tribunal has awarded just compensation and the same does not call for any interference. 7. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 8. 7. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 8. A bare look at the site map (Exhibit-3) produced by the claimants reveals that the Motorcycle along with blood stains were found on the left side footpath. Admittedly the Motorcycle was traveling from Khajuwala to 18-KJD and, therefore, was on its correct side. It is not the case of Shanker Singh – the driver of the Tanker that the Motorcycle struck the Tanker when the Tanker was plying on its correct side and then the Motorcycle skidded and went on to fall down over the footpath, on account of which, both Yusuf and the pillion rider Jahur Deen were injured. 9. A further look at the site map also does not indicate any skid marks on the road so as to indicate the fact that the Motorcycle struck the Tanker in the middle or on the right side of the road and then the same went on to the other side. Further the MTO report also indicates that both the vehicles were damaged on their right side i.e. Driver side of the Tanker as well as right side of the Motorcycle, which also clearly indicates that at the time of impact, the Motorcycle was on the left side when the Tanker struck it. 10. In view thereof, the finding recorded by the Tribunal regarding negligence of the deceased Yusuf based on its finding that both Kadar Bux the eye witness and Shanker the Driver of the Tanker were not telling the whole truth, cannot be sustained. 11. Insofar as, submissions made by learned counsel for the appellants pertaining to the 50% deduction by the Tribunal towards contributory negligence is concerned, the same has substance, inasmuch as, admittedly deceased - Jahur Deen was pillion rider and was not driving the Motorcycle and, therefore, for contributory negligence of driver of the Motorcycle - Nathu @ Yusuf and driver of the Tanker - Shanker Singh, it could not have been held by the Tribunal that the deceased has contributed in the accident and, therefore, the deduction to the extent of 50% on account of contributory negligence cannot be sustained. However, as it has been held that the accident occurred only on account of rash and negligent driving by driver of the Tanker, the issue otherwise losses significance. 12. However, as it has been held that the accident occurred only on account of rash and negligent driving by driver of the Tanker, the issue otherwise losses significance. 12. So far as adoption of multiplier is concerned in view of law laid down by Hon'ble Supreme Court in the case of Sarla Verma (supra) and looking to the age of the deceased a multiplier of 18 should have been adopted. 13. So far as the award of future prospects is concerned, in view of judgment in the case of Rajesh v. Rajbir Singh : 2013 ACJ 1403 even in case of self employed person, it has been held that the claimants would be entitled to amount towards future prospects and as per the indication given in the case of Sarla Verma (supra) for the age group of the deceased, the claimants would be entitled to future prospects at 50%. The deduction of ?rd towards personal expenses appears to be just and proper. 14. So far as further submissions of learned counsel for the appellants pertaining to the income of both the deceased is concerned, from the material available on record, the finding recorded by the Tribunal appears to be justified and it cannot be said, based on the material available on record, that the claimants have been able to prove any income beyond Rs. 15,000/- annually. So far as award of amount towards loss of consortium, loss of love & affection and funeral expenses is concerned, the same looking to the point of time when the same was awarded by the Tribunal does not call for any interference. 15. In view of the above, both the sets of claimants would be entitled to compensation as under: Rs. 15,000 x 18 = 2,70,000 – 90,000 = 1,80,000 + 90,000 = 2,70,000 + 25,000 = 2,95,000/-. 16. The claimants would be entitled to interest @ 7% on the enhanced amount of compensation w.e.f. the date of applications i.e. 22.01.1996 in the case of Smt. Sajani and dated 23.03.1996 in the case of Smt. Jubeda. However, it is made clear that compensation already paid to the claimants including interest @ 12% per annum shall not be disturbed on account of the reduction of rate of interest. 17. In view thereof, both the appeals are partly allowed. However, it is made clear that compensation already paid to the claimants including interest @ 12% per annum shall not be disturbed on account of the reduction of rate of interest. 17. In view thereof, both the appeals are partly allowed. The judgment and awards passed by the Tribunal are modified to the extent that both the sets of appellants would be entitled to further compensation to the tune of Rs. 1,97,500/- each along with interest @ 7% per annum on the enhanced amount w.e.f. 22.01.1996/23.03.1996. 18. The amount be paid to the claimants in their saving bank account in proportion as determined by the Tribunal. The amount be deposited by the respondent-State within a period of six weeks from the date of this judgment. No order as to costs.