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Rajasthan High Court · body

2016 DIGILAW 261 (RAJ)

R. S. R. T. C. v. Jamal

2016-02-16

GOPAL KRISHAN VYAS

body2016
JUDGMENT: Gopal Krishan Vyas, J. In this misc. appeal under Section 173 of the Motor Vehicles Act, 1988, appellant is challenging the judgment and award dated 01.12.2015 passed by Motor Accident Claims Tribunal, Jodhpur in Motor Accident Claim Case No. 111/2013 whereby, an award of Rs.11,85,920/- is passed in favour of respondents No. 1 to 3. 2. As per facts of the case, on 04.09.2012 at 7 AM, the deceased Yusuf was going from his house to Pipar on Motor Cycle No. RJ 19 SQ 1355 with Faisal Ali. When they reached opposite Banar Army Public School, at that time the Bus No. RJ 17 PA 0596 of appellant corporation came from behind and hit the motor cycle due to rash and negligent driving of the driver of bus. Due to hit by the bus, Yusuf and Faizal fell dow and Yusuf died on the spot for which FIR was registered at Police station against the driver respondent no. 4. 3. In the FIR regular investigation was conducted and police filed challan against the bus driver respondent No. 4 for rash and negligent driving and causing death of Yusuf. 4. The legal heirs of Yusuf filed claim petition before the Motor Accident Claims Tribunal, Jodhpur Metropolitan and claimed a sum of Rs.1,02,27000/- as compensation. In the claim petition filed by the claimants, the respondent driver filed his separate reply and denied all the allegations. It was alleged in the reply that the accident took place due to rash and negligent driving by driver of motor cycle. The Bus was going on right side but accident happened due to rash and negligent driving of motorcycle driver which is evident from the fact that there is hit on the right portion of conductor's gate of bus. 5. Learned Tribunal framed four issued and after hearing the arguments, passed an award of Rs.11,85,920/- in favour of the respondent claimants. 6. Learned counsel for the appellant submits that the Tribunal has committed a grave error of law while determining the compensation and recording a finding that driver of the bus was driving the bus in rash and negligent manner. As per learned counsel for the appellant, driver of the Corporation was not responsible in any manner for the accident, therefore, finding given by the tribunal deserves to be quashed. 7. As per learned counsel for the appellant, driver of the Corporation was not responsible in any manner for the accident, therefore, finding given by the tribunal deserves to be quashed. 7. Without prejudice to above arguments, it is submitted that it is a case of composite/contributory negligence which vitiates the impugned judgment and award because a bare perusal of the site plan goes to show that driver of the bus was not solely responsible for the accident. The Driver of motor cycle deceased Yusuf contributed to the accident, therefore, the finding for responsibility of bus driver deserves to be quashed. Lastly it is argued that finding of learned Tribunal are based on surmised and presumptions so also determination of income of deceased as Rs.7470/- per month is ex facie erroneous because the Tribunal has not relied upon the schedule attached to Section 163 of the Act of 1988 in which it is provided that if income is not proved, then income of the deceased could have been determined as Rs.15,000/- and not more than that. The deceased was more than 30 years of age, therefore, the award passed by the Tribunal deserves to be quashed. According to learned counsel for the appellant, there is no evidence on record to show that deceased was earning and therefore, the calculation of Tribunal with regard to income is totally erroneous. 8. After hearing learned counsel for the appellant, I have perused the award impugned. Admittedly, there is no dispute with regard to accident occurred on 04.09.2012 in morning at 7 AM in which deceased Yusuf died when he was going on Motorcycle No. RJ 19 SQ 1355 along with Haidar Ali. It is also not in dispute that in the FIR filed for the accident, after investigation the police filed challan for rash and negligent driving against respondent o.4 driver of the vehicle belonging to the appellant Corporation. It is also not in dispute that in the accident, Yusuf died on the spot. 9. Learned Tribunal after framing four issued, recorded evidence of three witnesses namely AW/1 Hawa Bano, AW/2 Faisal Ali and AW/3 Amar Singh and on behalf of Corporation, the statement of NAW/1 Manohar Singh, NAW/2 Durga Singh were recorded. It is also not in dispute that in the accident, Yusuf died on the spot. 9. Learned Tribunal after framing four issued, recorded evidence of three witnesses namely AW/1 Hawa Bano, AW/2 Faisal Ali and AW/3 Amar Singh and on behalf of Corporation, the statement of NAW/1 Manohar Singh, NAW/2 Durga Singh were recorded. In absence of any documentary evidence with regard to income, the learned Tribunal assessed the minimum wage of Rs.166/- per day as provided by the State Government in the Minimum Wages Act and after determination of wages, the Tribunal calculated the salary of Rs.7470/- after calculating 50% wages as future benefit. It is not in dispute that age of deceased was 30 years, therefore, learned Tribunal calculated the monthly income of deceased as Rs.7470/- and after deducting one third i.e Rs.2290/-, determined the monthly income as Rs.4980/- and after giving multiplier of 17, passed the total award of Rs.10,15,920/- and after granting Rs.1,70,000/- for loss of love and affection and other expenses, awarded Rs.11,85,920/- to the claimants. 10. In my opinion, the finding of determination of income of deceased Yusuf does not suffer from any illegality because the Tribunal has accepted the Minimum wages as provided in the Minimum wages Act and as per provision of law, the deceased was 30 years of age, therefore, calculated the compensation by giving multiplier of 17. In my opinion, there is no strength in the argument of learned counsel for the appellant that error has been committed by the Tribunal for not relying upon the schedule attached to Section 163A of the Act of 1988 because as per finding of learned Tribunal, the minimum wages was taken into consideration as provided in the Minimum Wages Act. 11. In view of above, this Court is not inclined to interfere in the award impugned because the learned Tribunal has rightly assessed the income of deceased Yusuf and awarded the compensation in accordance with law. Hence, this appeal is hereby dismissed.