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2017 DIGILAW 2153 (JHR)

Bishwanath Prasad v. Mahendra Ram

2017-12-13

AMITAV K.GUPTA

body2017
JUDGMENT Amitav K. Gupta, J. - This appeal is directed against the judgment and award dated 04.02.2011 of the learned Presiding Officer, Motor Vehicle Accident Claims Tribunal, Ranchi in Compensation Case No.46 of 2006 whereby Rs. 1,96,500/-was awarded as compensation to the claimants and the respondent-the New India Assurance Co. Ltd. was saddled with the liability to pay 50% of the said amount i.e. Rs. 98,250/- with interest @ 6% per annum payable from 18.11.2008. 2. Learned counsel for the appellants Mr. Arvind Kumar Lall has submitted that the court below has failed to appreciate that AW-2, the maternal uncle of the deceased, has deposed that he was travelling on the front seat of the Mahendra Savari vehicle and the deceased was seated on the rear seat. That since the road was in a bad condition, he repeatedly asked the driver to drive carefully but the driver did not pay any heed and kept driving the vehicle in a rash and negligent manner at a high speed. That the vehicle suffered a jolt and the deceased and one co-passenger Vinay Kumar lost their balance and fell down on the road and died on account of being run over by the truck which was coming from behind. 3. It is submitted that the police investigated the case and submitted the charge sheet against the driver of Mahindra Savari vehicle, bearing registration No. JHOIL 7807. It is argued that in view of deposition of AW-2 and the charge-sheet, it is amply clear that the deceased and a co-passenger fell down from the vehicle due to the jolt as a result of rash and negligent driving by the driver of the Mehendra Savari vehicle. It is canvassed that considering the material evidence on record, no case of composite negligence is made out. Therefore, the liability to pay the entire compensation should be fastened upon respondent No.2-New India Assurance Co. Ltd., the insurer of Mahendra Savari vehicle. Learned counsel has contended that the court below has erred in computing the compensation by applying the multiplier on the basis of the age of the claimant without appreciating the well settled proposition that the age of the deceased is the reckoning factor for applying the multiplier. 4. Ltd., the insurer of Mahendra Savari vehicle. Learned counsel has contended that the court below has erred in computing the compensation by applying the multiplier on the basis of the age of the claimant without appreciating the well settled proposition that the age of the deceased is the reckoning factor for applying the multiplier. 4. It is argued that the deceased was a sportsman and he was awarded a championship certificate by Jharkhand Adventure Foundation and Assam Net Ball Association, which proves that the deceased was a talented sportsman and he would have chartered out a bright career in the field of sports and got a decent job. It is pointed out that AW-1, the mother of the deceased has testified that her son was doing part time job and earning Rs. 4,000/- per month. It is argued that in view of the evidence available on record the court below should have made addition of income towards future prospect and assessed the income of the deceased at Rs. 10,000/- per month. To buttress his argument, learned counsel has relied on the decision reported in II 2017 ACC 40 : ( 2016 AAC 1148 (Ker)); Jose P.J. and others v. Niyas and Others (Division Bench), Kerala High Court and 2017 (2) ACC 96 ; Bajaj Allianz General Insurance Company Ltd. v. Bipin Laxmichand Mehta (Division Bench) Bombay High Court. 5. It is canvassed that the court below has awarded a meager amount of Rs. 2000/- and 2500/-, respectively, towards funeral expenses and loss of estate but no amount has been awarded for loss of love and affection. It is submitted that the award should be enhanced and entire liability should be fastened upon respondent No.1-New India Assurance Co. Ltd. 6. Mr. Ganesh C. Jha, learned counsel for the respondent/New India Assurance Co. Ltd., has submitted that the court below has taken note of the fact that Mahindra Savari vehicle was being driven at a high speed in a rash and negligent manner on a road full of pot-holes and it suffered a jolt due to which the deceased and a co-passenger lost their balance and fell on the road whereafter they were run over by the truck coming from behind. It is urged that had the driver of the truck not been driving the truck rashly and negligently, the precious life of the deceased could have been saved. It is urged that had the driver of the truck not been driving the truck rashly and negligently, the precious life of the deceased could have been saved. It is contended that AW-2 has deposed that the said truck was being driven at a high speed and the court below has discussed the evidence and rightly recorded the finding that it is case of contributory negligence of both the vehicles and accordingly, apportioned the compensation by directing the respondent-New India Assurance Co. Ltd. to pay 50% of the compensation amount. It is urged that in view of the evidence on record the impugned judgment and award does not suffer from any illegality or infirmity requiring any interference by this court. 7. Having heard the learned counsels and on going through the impugned judgment, it is evident that AW-2 has deposed that he had asked the driver of Mahindra Savari vehicle not to drive the vehicle in a rash and negligent manner as the condition of the road was bad but the driver did not pay any heed. Since the vehicle was being driven rashly and negligently at a high speed, there was a jolt due to which the deceased and a copassenger fell down from the vehicle and were run over by the truck coming at a high speed from behind. AW-2 has testified that the said truck was being driven at a high speed. 8. In the light of deposition of AW-2 and on visualisation of the manner of the accident it is evident that had the driver of the truck been driving at a slow speed, he could have applied the brakes or swerved the truck to avert the chances of the truck running over the deceased. Evidently the truck was being driven at a high speed, therefore, the driver of the truck failed to control and apply the brakes immediately to stop the truck from running over the deceased. The deposition of AW-2 establishes that the driver fled away with the truck which proves that the driver of the truck was equally responsible for the death of the deceased. In the attending circumstances there is no room for doubt that the unfortunate death of the deceased took place due to contributory negligence of the driver of the Mahindra Savari vehicle as well as the driver of the truck. 9. In the attending circumstances there is no room for doubt that the unfortunate death of the deceased took place due to contributory negligence of the driver of the Mahindra Savari vehicle as well as the driver of the truck. 9. With respect to the proposition advanced by learned counsel that the tribunal has committed error in not assessing the income of the deceased at Rs. 10,000/-, it is pertinent to state that in the decision rendered by the Kerala High Court, it was found from the material facts that the deceased was a student of M.B.A. He was undergoing a professional course and there was likelihood of his getting a placement in a good company, accordingly, the deceased''s income was assessed at Rs. 10,000/-. Likewise, in the decision rendered by Bombay High Court, it was found that the deceased was pursuing a course in chartered accountancy. Had he completed the said course, he would have been practicing as a Chartered Accountant or joined a firm of Chartered Accountants on handsome salary. In the obtaining facts of the said case the income of the deceased was assessed at Rs. 60,000/- per month. 10. From the evidence available in the instant case, it is abundantly clear that the deceased was a student of B.A. in Gaya College, Gaya. Learned counsel has argued that he was an outstanding sportsman and he had been awarded trophy by Jharkhand Adventure Foundation and Assam Net Ball Association, therefore, he could have excelled in sports and would have got a job with salary of Rs. 10,000/- per month. Such argument of the learned counsel is not acceptable as no document has been adduced regarding the academic record of the deceased. The mother of the deceased has stated that the deceased was doing a part time job and earning Rs. 4000/-. She has not stated about the nature of part time job the deceased was doing neither any employer or independent witness has been examined to substantiate the plea that the deceased was earning Rs. 4,000/- by doing part time job. The court below has taken note of the deposition of AW-1 wherein she has stated that the educational expenses of the deceased were borne by them. In view of the contradictory statement the court below has rightly held that the deceased was a non-earning person therefore, his income has been assessed notionally at Rs. 3,000/- per month. The court below has taken note of the deposition of AW-1 wherein she has stated that the educational expenses of the deceased were borne by them. In view of the contradictory statement the court below has rightly held that the deceased was a non-earning person therefore, his income has been assessed notionally at Rs. 3,000/- per month. However, the court below has not made any addition of the income towards future prospect. Therefore, considering that the deceased was aged 24 years 50% of the notional income is added towards future prospect and the income of the deceased is assessed at Rs. 4,500/- per month accordingly the annual income is calculated at Rs. 54,000/-. The deceased was a bachelor therefore 50% of the income is deducted towards his personal expenses and the loss of annual dependency is calculated at Rs. 27,000/- per annum. The Tribunal has erred in taking into account the age of mother of the deceased for applying the multiplier against the settled proposition that multiplier is to be applied on the basis of the age of the deceased for computation of compensation. Since the deceased was aged 24 years, therefore in terms of the guidelines laid down in the case of Sarla Verma v. D.T.C (2009) 6 SCC 121 : ( AIR 2009 SC 3104 ), multiplier applicable is 17. Accordingly, the loss of dependency is assessed at Rs. 27,000 x 17 = 4,59,000/-. Evidently a meager amount has been awarded towards funeral expenses and loss of estate. Therefore, the claimants are entitled to be paid Rs. 30,000/-under the conventional heads of funeral expenses and loss of estate. Consequently, the compensation is computed at Rs. 4,59,000+30,000=4,89,000/-, rounded off to Rs. 5,00,000/-. 11. In view of the discussions made in the foregoing paragraphs, the respondent No.2 is saddled with the liability to pay 50% of the amount i.e. Rs. 2,50,000/-. It has been submitted that the respondent No.2 has satisfied the apportioned part of the liability and paid Rs. 1,04,667/- inclusive of the interest. This has not been controverted by the learned counsel for the claimants. In view of the submissions, the respondent No.2 is directed to pay the enhanced amount, i.e., Rs. 2,50,000 - Rs. 98,250= Rs. 2,50,000/-. It has been submitted that the respondent No.2 has satisfied the apportioned part of the liability and paid Rs. 1,04,667/- inclusive of the interest. This has not been controverted by the learned counsel for the claimants. In view of the submissions, the respondent No.2 is directed to pay the enhanced amount, i.e., Rs. 2,50,000 - Rs. 98,250= Rs. 1,51,750/-with interest @ 6%, from the date of the judgment of the trial court by 15.03.2018 failing which it shall be liable to pay interest @ 9% from the date of order of this court. 12. In the result, the impugned award stands modified to the extent as mentioned above and the appeal is, hereby, disposed off.