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2017 DIGILAW 1179 (RAJ)

DEVI LAL v. SUBASH CHANDRA

2017-05-09

GOVERDHAN BARDHAR

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JUDGMENT : Goverdhan Bardhar, J. The instant civil misc. appeal under Section 173 of the Motor Vehicle Act, 1988 has been preferred by the claimants/appellants for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Rajsamand (for short 'the Tribunal') vide impugned judgment and award dated 30.04.2001 passed in Claim Case No. 774/1998, whereby compensation to the tune of Rs.1,63,000/- has been awarded in favour of the claimants/appellants. 2. Briefly stated the facts of the case are that on 28.06.1996 at about 11:00 pm in the night on the way between village Kapasan and village Chhitorgarh an accident occurred between truck No. RJ 20-G-1321 and truck No. RJ 30-G 0129 due to negligence of both the truck drivers. In the said accident, Narayan lal driver of truck No. RJ 30-G 0129 and Laxman Singh driver of truck No. RJ 20-G-1321 succumbed to injuries and Gopilal sustained grievous injuries. FIR of the said accident was registered at Police Station Chanderiya, District Chittorgarh. 3. Respondent No.1 is owner of truck No. RJ 20-G-1321 and respondent No.2 is the owner of truck No. RJ 30-G 0129 and both the vehicles were insured with respondent No.3-Insurance Company. Despite service, respondent No.1, owner of truck No. RJ 20-G-1321, remain absent on 11.04.1997, therefore, ex-parte proceedings were held against him. 4. Respondent No.2, owner of truck No. RJ 30-G 0129 filed his reply denying the contents of the claim petition and stating that the accident occurred due to the negligence of the driver of truck No. RJ 20-G-1321. Respondent No.3-Insurance Company filed its reply denying the contents of the claim petition and stating that both the drivers of the offending vehicles were not having the valid driving license at the time of accident, hence liability cannot be fastened upon the Insurance Company and prayed for dismissal of the claim petition. 5. The learned Tribunal on the basis of pleadings of the parties framed four issues including relief. In support of their case, the claimants-appellants examined Devilal as AW-1 and Gopi lal as AW-2 and exhibited documents. In rebuttal, the respondents got examined one witness Kanhaiyalal as NAW-1 and exhibited documents. The learned Tribunal after hearing both the parties vide its judgment and award dated 30.04.2001 holding contributory negligence of both the drivers of the offending vehicles, awarded a compensation of Rs.1,63,000/- in favour of the claimants/appellants. Hence, this misc. In rebuttal, the respondents got examined one witness Kanhaiyalal as NAW-1 and exhibited documents. The learned Tribunal after hearing both the parties vide its judgment and award dated 30.04.2001 holding contributory negligence of both the drivers of the offending vehicles, awarded a compensation of Rs.1,63,000/- in favour of the claimants/appellants. Hence, this misc. appeal has been filed by the claimants/appellants for enhancement of compensation. 6. Counsel for the claimants/appellants has submitted that the compensation awarded by the learned Tribunal is on lower side and needs to be enhanced as claimed in the claim petition. The learned Tribunal while calculating compensation has wrongly computed the income of the deceased as also wrongly applied multiplier on the lower side. The learned Tribunal decided the claim petition on the basis of contributory negligence whereas there is no evidence and there is no issue framed in this regard, hence the finding regarding contributory negligence is liable to be set aside. It is further argued that not a single penny has been awarded towards future prospects although the deceased was a young man at the time of accident and his income would have certainly increased in the future. It is thus prayed the impugned judgment and award deserves to be modified and compensation be suitably enhanced. Learned counsel for the appellant relied on decisions reported in 2013 ACJ 2141 (SC) Jiju Kuruvila v. Kunjujamma Mohan, 2013 ACJ 2544 (SC) Minu Rout v. Satya Pradyumma, 2015 ACJ 1492 (All) Prabandhak, U.P. Rajya Sadak Parivahan Nigam v. Rabia Begum, 2013 R.A.R 21 (Raj.) UIICL v. Sugni Devi, 2013 R.A.R 426 (Raj.) Jameel v. Bhanwar Singh. 7. Per contra, the learned counsel for the respondent-Insurance Company has opposed the submissions advanced by the counsel for the claimants/appellants and submitted that the finding of the learned Tribunal regarding contributory negligence is just and proper, hence the judgment and award passed by the learned Tribunal warrants no interference. 8. I have considered the submissions on behalf of the counsel for the parties and perused the impugned judgment/award as also material available on record. 9. When two vehicles coming from opposite directions collide, the position of the vehicles and their directions etc depends on a number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other etc. 9. When two vehicles coming from opposite directions collide, the position of the vehicles and their directions etc depends on a number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other etc. From the scene of the accident one may suggest or presume the manner in which the accident occurred but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. In order to establish a plea of contributory negligence, it is to be proved that the injured party did not in his own interest take reasonable care of himself and contributed by his want of care to his own injury. The principle involved is that where a man is partly author of his own wrong, he cannot call on the other party to compensate him in full. A person is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a prudent man, he might hurt himself. In the present case, both drivers of RJ 30/G 0129 and the Truck No. RJ 20/G 1321 drove their vehicles negligently at a high speed. AW/2 Gopilal who is the eye witness deposed that there was head on collision and both the drivers succumbed to injuries. Learned Tribunal on the basis of material on record, statement and evidence including site map, came to the conclusion that the drivers of Truck No. RJ 30/G 0129 and the Truck No. RJ 20/G 1321 both were negligent and it is a case of contributory negligence to the ratio of 50:50. After going through the record, the finding arrived at by the learned Tribunal does not appear to be perverse or erroneous as the same has been arrived at on the basis of pleadings as well as statements on record. 10. Learned counsel for the appellant has referred to some of the decisions of the courts in support of his contention that the deceased was not guilty of negligence. The facts of each case are different and each case has its own features and circumstances. 10. Learned counsel for the appellant has referred to some of the decisions of the courts in support of his contention that the deceased was not guilty of negligence. The facts of each case are different and each case has its own features and circumstances. The facts of one case cannot be supplanted to another case, so as to draw an inference about the same. In the present case, in para no. 28(1) of the claim petition itself, it has been stated by the claimants that the accident occurred due to negligence of drivers of RJ 30/G 0129 and the Truck No. RJ 20/G 1321. Thus, the cases relied upon by the learned counsel for the appellants does not help the appellants in any way. 11. As far as the quantum of compensation is concerned, impugned award passed by the Tribunal reveals that the learned Tribunal while considering the claim of the claimants/appellants, assessed the income of the deceased as Rs. 3000/- per month and after deducting Rs. 750/- per month for self expenditure, Rs. 2250/- was considered as income of the deceased per month and while applying multiplier of 12, awarded compensation to the tune of Rs. 3,24,400/- in favour of the claimants/appellants. In the opinion of this Court, the multiplier of 12 adopted for computing the compensation is without justification and erroneous and in the light of the judgment of the Hon'ble Supreme Court in the case of Sarla Verma [Smt.] & Others v. Delhi Transport Corporation and another, reported in (2009) 6 S.C.C. 121 , multiplier of 17 should have been applied. Hon'ble Apex Court while assessing the multiplier in para 42 of said judgment has held as under :- "We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." 12. Hence the loss of dependency deserves to be recalculated as under:- 2250 x 12 x 17 = 4,59,000/- 13. In the case of Sarla Verma (supra) the Apex Court had dealt with the issue of future prospect of addition to the income, and had observed as under:- ...In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. 14. Admittedly, the deceased was 25-28 years old when he expired and there is no evidence with regard to fixed salary and permanent job. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. 14. Admittedly, the deceased was 25-28 years old when he expired and there is no evidence with regard to fixed salary and permanent job. Since there were no exceptional or special circumstances for deviating from the guidelines, the Tribunal was justified in not granting any compensation for future prospects. 15. It is relevant to note that it is admitted case of the claimants that wife of the deceased remarried and she had filed an application before the learned Tribunal to the effect that if any compensation is awarded, her share may also be disbursed to the claimants parents of deceased. In the present appeal, although Smt. Mithdi is impleaded as one of the appellant but the vakalatnama reveals that she has not signed vakalatnama herself but the vakalatnama has been signed only by the counsel who represented the claimants before the learned Tribunal, therefore, it cannot be said that Smt. Mithdi would be interested for enhancement of compensation to get her share as she relinquished her share in favour of parents of the deceased before the Tribunal. Hence, obviously the amount of enhanced compensation has to go to the appellants No.1 & 2 who are parents of the deceased. 16. For the reasons stated above, the appeal is partly allowed. The award dated 30.04.2001 is, hereby, modified as under:- Loss of Dependency Rs. 4,59,000/- Contributory negligence Rs. 2,29,500/- Enhanced amount Rs. 2,29,500-163,000 = Rs. 66,000/- 17. The respondents shall pay the enhanced amount to the appellant along with an interest of 9% per annum from the date of filing of the claim petition. The said enhanced amount shall be paid to the claimants parents in terms of the award passed by the learned Tribunal within a period of three months from the date of receipt of a certified copy of this judgment.