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Himachal Pradesh High Court · body

2016 DIGILAW 2117 (HP)

Ajmer Singh v. Vyasa Devi

2016-09-30

MANSOOR AHMAD MIR

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JUDGMENT : MANSOOR AHMAD MIR, J. 1. Both these appeals are directed against the award, dated 4th October, 2010, passed by the Motor Accident Claims Tribunal, Bilaspur, H.P., (for short, the Tribunal), whereby compensation to the tune of Rs.4,47,400/, alongwith interest at the rate of 7.5% per annum, came to be granted in favour of the claimants and the owner was saddled with the liability, (for short, the impugned award). 2. Feeling aggrieved, the claimants questioned the impugned award by the medium of FAO No.39 of 2011 on the ground of adequacy of compensation, while the owner/insured (Ajmer Singh) has assailed the impugned award in FAO No.20 of 2011 on the ground that the Tribunal has fallen into an error in saddling him with the liability and exonerating the insurer. Facts: 3. Claimants, being widow, parents and children of deceased Suresh Kumar, invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehicles Act, 1988, (for short, the Act), for grant of compensation to the tune of Rs.15.00 lacs, as per the break-ups given in the claim petition. It was averred that on 23.1.2007, at about 6.45 p.m., the deceased, namely, Suresh Kumar, aged about 33 years, alongwith other labourers, after loading iron rods (saria) in tractor bearing No.HP-23-9813, being driven by its driver, namely, Joginder Singh, rashly and negligently, was traveling in the said tractor for unloading the said material. It was further averred that when the tractor reached at Rest House Dholra, District Bilaspur, due to the rash and negligent driving of the driver of the offending tractor, it met with an accident and Suresh Kumar was crushed underneath the wheel of the tractor, resulting into his death. FIR No.34/07, under Sections 279 and 304-A of the Indian Penal Code, (for short, IPC), came to be registered at Police Station, Sadar, Bilaspur, H.P. It was also averred that the deceased was labourer/mason by profession and was earning Rs.8,000/- per month from all sources. 4. Respondents resisted the claim petition by filing replies. 5. On the pleadings of the parties, the Tribunal framed the following issues: ? 1. Whether late Sh. Suresh Kumar died on account of injuries sustained in an accident which took place on 23.1.2007 at about 6.45 P.M. at place Dholra District Bilaspur, due to the rash and negligent driving of tractor (Applied For) temporary No.HP-23-9813 being driven by respondent No.2 as alleged? 1. Whether late Sh. Suresh Kumar died on account of injuries sustained in an accident which took place on 23.1.2007 at about 6.45 P.M. at place Dholra District Bilaspur, due to the rash and negligent driving of tractor (Applied For) temporary No.HP-23-9813 being driven by respondent No.2 as alleged? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation, the petitioners are entitled to and from whom? OPP 3. Whether the respondent No.2 was not having valid and effective driving licence at the relevant time? OPR-3 4. Whether the offending vehicle was being plied without RC, fitness certificate and route permit at the time of accident in contravention of the provisions M.V. Act? OPR-3 5. Whether the deceased was traveling in the offending vehicle as gratuitous passenger at the relevant time? 6. Relief.? 6. In order to prove their case, the claimants examined PW-1 Dr.Ashwani Kumar, PW-2 Gian Chand, PW-3 Balak Ram, PW-5 Madan Lal, while one of the claimants, namely, Vyasa Devi, herself stepped into the witness box as PW-4. On the other hand, driver of the offending tractor Joginder Singh stepped into the witness box as RW-1 and Prakash Chand, one of the labourers, who loaded the saria on the offending tractor on the fateful day, was examined as RW-2. 7. The Tribunal after scanning the pleadings as well as the entire evidence held that the claimants were entitled for compensation to the tune of Rs.4,47,400/- alongwith interest at the rate of 7.5% per annum, and saddled the owner with the liability. 8. Feeling aggrieved, the claimants and the owner have filed the instant appeals, as detailed above. FAO No.20 of 2011 9. I have gone through findings recorded by the Tribunal in paragraphs 25 to 31 of the impugned award, are legally and factually correct for the following reasons. 10. As provided at Sl.No.13 of the registration certificate Ext.D-3, the seating capacity of the offending tractor (including driver) was only one person. Thus, the risk of any other person who was traveling on the offending tractor was not covered. 11. The claimants, in paragraph 10 of the claim petition, have specifically averred that the deceased Suresh Kumar was traveling in the offending tractor and was going from Dholra to Kallar after loading saria in the said tractor, which fact stands proved by oral as well as documentary evidence led by the parties. 11. The claimants, in paragraph 10 of the claim petition, have specifically averred that the deceased Suresh Kumar was traveling in the offending tractor and was going from Dholra to Kallar after loading saria in the said tractor, which fact stands proved by oral as well as documentary evidence led by the parties. It is apt to reproduce paragraph 10 of the claim petition hereunder: ?Yes. The deceased was traveling in said tractor and was going from Dholra to Kallar after loading Sariya in the said tractor.? 12. The driver and the owner have filed joint reply to the claim petition. They have evasively denied paragraph 10 of the claim petition in their reply and have further stated that the deceased Suresh Kumar was neither traveling in the offending tractor, as alleged, nor died in the accident. It is apt to reproduce paragraph 5 of the reply hereunder: ?5. Paras No.10 to 13 of the petition are denied being incorrect. The deceased was not traveling in the vehicle as alleged nor he died in the said accident.? 13. The appellant-owner has made U-turn while filing the instant appeal, wherein, in paragraph 4 (B), the appellant has averred that the deceased Suresh Kumar was hit by the tractor on the road. It is apt to reproduce paragraph 4 (B) of the appeal filed by the owner as under: ?4 (B) That the appellant had not authorized his driver to allow any body to travel on the tractor nor the deceased was permitted by the appellant to travel in the tractor as alleged. The driver of the tractor has categorically stated that the deceased was not traveling on the tractor in question and he was hit on the road. But the learned Tribunal has failed to take notice of the said fact and has wrongly concluded that the deceased was traveling on the tractor in question. Therefore the appellant was not liable to pay compensation if any payable to the respondents-petitioners 1 to 6.? 14. Thus, apparently, the owner has blown hot and cold. As discussed hereinabove, the claimants have pleaded and proved that the deceased Suresh Kumar was traveling on the tractor for loading and unloading of saria. The owner has also pleaded that he had directed the driver of the offending tractor not to allow anyone to travel on the offending tractor. 14. Thus, apparently, the owner has blown hot and cold. As discussed hereinabove, the claimants have pleaded and proved that the deceased Suresh Kumar was traveling on the tractor for loading and unloading of saria. The owner has also pleaded that he had directed the driver of the offending tractor not to allow anyone to travel on the offending tractor. Therefore, keeping in view the relationship of master-servant liability, it is the owner who is liable. The Tribunal, after scanning the evidence, has rightly made discussion in the impugned award. 15. Accordingly, it is held that the Tribunal has rightly exonerated the insurer from its liability. 16. Having said so the appeal filed by the owner (FAO No.20 of 2011) is dismissed. FAO No.39 of 2011 17. By the medium of this appeal, the claimants have questioned the adequacy of compensation. The claimants have specifically pleaded in paragraph 6 of the claim petition that the deceased Suresh Kumar was earning Rs.8,000/- per month from all sources, as detailed in paragraph 6 of the claim petition. But, the claimants have failed to prove, during trial, that the deceased was earning Rs.8,000/- per month. The Tribunal, as per detailed discussion made in paragraphs 19 and 20 of the impugned award, has taken into account all factors and after exercising guess work, rightly held that the income of the deceased was Rs.3,000/- per month, since at the relevant point of time, a labourer would not have been earning more than Rs.100/- per day. However, the Tribunal has fallen into an error in deducting 1/4th from the income of the deceased. The claimants are six in number, therefore, 1/5th has to be deducted from the monthly income of the deceased in view of the dictum of the Apex Court in the case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120. Accordingly, after deducting 1/5th amount, the monthly loss of source of dependency to the claimants can be said to be Rs.2,400/-. 18. The age of the deceased was 32 years at the time of accident. Accordingly, after deducting 1/5th amount, the monthly loss of source of dependency to the claimants can be said to be Rs.2,400/-. 18. The age of the deceased was 32 years at the time of accident. In view of mandate of the Apex Court in Sarla Verma's case (supra), read with 2nd Schedule appended with the Motor Vehicles Act, 1988, the Tribunal has rightly applied the multiplier of 16. 19. In view of the above, the claimants are held entitled to Rs.2,400/- x 12 x 16 = Rs.4,60,800/- under the head loss of source of dependency. 20. In addition to above, a sum of Rs.10,000/- each i.e. Rs.40,000/- in all, is awarded in favour of the claimants under the heads loss of love and affection, loss of estate, loss of consortium and funeral expenses. 21. Having said so, the claimants are held entitled to Rs.4,60,800/- + Rs.40,000/- = Rs.5,00,800/-, alongwith interest as awarded by the Tribunal. The impugned award is modified accordingly and the appeal filed by the claimants (FAO No.39 of 2011) is allowed, as indicated above. 22. The owner is directed to deposit the amount, alongwith interest, within a period of six weeks from today in the Registry of this Court and on deposit, the Registry is directed to release the entire amount in favour of the claimants, strictly in terms of the impugned award forthwith. 23. Both the appeals stand disposed of accordingly.