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2018 DIGILAW 1356 (RAJ)

Laxman Ram v. Bhoor Singh

2018-05-24

VINIT KUMAR MATHUR

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JUDGMENT Vinit Kumar Mathur, J. - Present batch of appeals arises out of a common judgment and award dated 16.06.2003 passed by the Motor Accident Claims Tribunal-I, Jodhpur in Claim petition Nos.207/1999,315/1999, 198/2001, 280/1999 & 314/1999, therefore, the same are being decided by this common judgment. 2. Brief facts necessary to be narrated for adjudication of the appeals are that on 16.10.1998, deceased Smt. Kamla, Smt. Bhanwar Kanwar, Mohan Ram Meghwal, Hem Singh and Chutra Ram were travelling in Jeep No.RJ-19/T-1099 from Setrawa to Balesar. The due fair for travelling in the Jeep was paid. The Jeep was being driven by Bhoor Singh. At around 3:30 pm in the afternoon, at some distance from Phalodi diversion (Phanta), the jeep in which the deceased were travelling met with an accident with Mini Bus No.UGP-4244. The bus was being driven by its driver Goverdhan Ram Rao. Smt. Kamla, Smt. Bhawar Kanwar, Mohan Ram & Chutra Ram died on the spot. Hem Singh was grievously injured but he also died after two months during the treatment. 3. In these circumstances, claim petitions were filed before the Motor Accident Claims Tribunal-I, Jodhpur seeking compensation under different heads. The respondents No.1 & 2 filed reply to the claim petitions and defended the claim stating therein that the driver of the Jeep Bhoor Singh was driving the Jeep on the correct side of road under the controlled speed but the offending Mini Bus was being driven rashly and negligently by its driver and it collided with the Jeep on wrong side. 4. An FIR with regard to the accident was lodged by Rikha Ram meghwal in which Challan has been filed only against respondent No.4. The learned tribunal after framing the issues and examining the witnesses decided the claim petitions vide common judgment and award dated 16.06.2003. The issue No.1 was decided against respondents No.4 & 5 and it was held that there was no negligence on the part of the driver of the Jeep and therefore, the respondents No.1 to 3 were not held liable for payment of compensation. The appellants have assailed validity of the judgment and award dated 16.06.2003 by way of filing above appeals. 5. The appellants have assailed validity of the judgment and award dated 16.06.2003 by way of filing above appeals. 5. This court vide order dated 02.06.2005 deleted the names of respondents No.4, 5 & 6 i.e. Goverdhan Ram @ Goda Ram (driver of the Mini Bus), Gurunam Singh through Ahmed Ali (registered owner of the Mini Bus) & Bhanwar Singh S/o Shri Dhokal Singh (purchaser of the Mini Bus) from the array of respondents at the request and risk of the appellants. 6. I have heard counsel for the parties. 7. The counsel for the appellants has vehemently submitted that while deciding the issue No.1, the learned tribunal has lost sight of the statement of injured eye witness namely Pratap Singh (PW5) who was also travelling in the Jeep and statement of PW5 Pratap Singh very categorically shows that the driver of the Jeep was driving the Jeep at a speed of 70-80 km per hour. 8. He also stated that the accident occurred due to negligence on the part of the driver. In these circumstances, he submitted that the site map alone cannot be the only document to be relied upon for deciding negligence on the part of the drivers of the Mini Bus as well as Jeep. The site map is required to be considered and examined along with the statement of PW5 Pratap Singh. He further submits that even as per the site map, the negligence of the Jeep driver cannot be ruled out as the driver of the Jeep was not vigilant to keep the vehicle on the left side and to slow down speed of the Jeep. He also stated that site map (Ex.84) was though exhibited but was not proved by anybody, therefore, the same cannot solely be relied upon. 9. Other contention with respect to the quantum of compensation was also raised and he submitted that the same is required to be enhanced in the light of Constitutional Bench judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi & Ors. reported in AIR 2017 SC 5157 . Therefore, he prays that liability should also be fastened on the driver of the Jeep as well as owner, driver and Insurance Company of the Jeep i.e. respondents No.1 to 3 and the award may be suitably modified. 10. reported in AIR 2017 SC 5157 . Therefore, he prays that liability should also be fastened on the driver of the Jeep as well as owner, driver and Insurance Company of the Jeep i.e. respondents No.1 to 3 and the award may be suitably modified. 10. Learned counsel for the appellants relies upon the judgment of Hon'ble Supreme Court in the case of Kamlesh Singh & Ors. v. Atar Singh & Ors. reported in (2014) 4 ACC 672 wherein it has been held that :- "8. We have heard learned counsel for the parties and perused, inter alia, the evidence on record of Ram Parshad PW2 and Devender PW.3. The method and manner in which the accident has taken place leaves no room for doubt that it was a case of composite negligence of drivers of both the vehicles, that is the driver of Maruti car and driver of tempo. Though Police has registered a case against driver of the tempo Attar Singh and has filed a chargesheet but the same cannot be said to be conclusive. Though, Attar Singh has stated that it was in order to oblige the driver of the Maruti car, a case was registered against him. Be that as it may. It appears both the drivers have tried to save their liability. In such circumstances, the version of eye-witnesses, PW.2 and PW.3 assumes significance. The fact remains that car had dashed the tempo on the middle portion near footstep. Thus the method and manner in which the accident has taken place leaves no room for doubt that both the drivers were negligent. Man may lie but the circumstances do not is the cardinal principle of evaluation of evidence. No effort has been made by the High Court to appreciate the evidence and method and manner in which the accident has taken place. Both the aforesaid witnesses have stated Maruti Car was in excessive speed. However, it appears driver of tempo also could not remove his vehicle from the way of Maruti Car. Thus, both the drivers were clearly negligent. It appears from the facts and circumstances that both the drivers were equally responsible for the accident. Thus, it was a case of composite negligence. Both the drivers were joint 'tort-feasors', thus, liable to make payment of compensation". 11. Opposing the submissions made by counsel for the appellants, Mr. Thus, both the drivers were clearly negligent. It appears from the facts and circumstances that both the drivers were equally responsible for the accident. Thus, it was a case of composite negligence. Both the drivers were joint 'tort-feasors', thus, liable to make payment of compensation". 11. Opposing the submissions made by counsel for the appellants, Mr. Jagdish Vyas appearing on behalf of Insurance Company has vehemently argued that bare perusal of the site map will give clear picture of the accident and as per the site map, the Bus driver alone was negligent as the Mini Bus has gone on the wrong side i.e. on the right side of the road since the Jeep was travelling from opposite side has hit on the right side of the Jeep, therefore, the Jeep was being driven on the correct side and no negligence can be attributed towards the driver of the Jeep. He further submits that learned tribunal has rightly not relied upon the ocular testimony of PW5 Pratap Singh on the basis of settled principle of law "While man may lie, circumstances do not". 12. In the present case since the site map clearly depicts fault/negligence on the part of the Bus driver and there is no negligence on the part of the Jeep Driver, the statement of PW5 Pratap Singh has rightly been discarded by the learned Tribunal. The present case is not a case of contributory negligence. 13. He further submits that the documents relied upon by the learned tribunal were tendered by the claimants themselves, therefore, there was no need to get the same proved by the author of the documents. For the purpose, he relies upon the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Company Limited v. Premlata Shukla & Ors. reported in (2007) 13 SCC 476 wherein it has been held that: "13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them". 14. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them". 14. As far as contention with respect to computation of the award in the light of judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi & Ors. is concerned, he has not seriously objected to the same. 15. I have considered the submissions made at bar, perused the record and gone through the judgments relied upon by the counsel for respective parties. 16. The focal point in the present case revolves around the statement of PW5 Pratap Singh and site map (Ex.84). It is an admitted position that the Jeep was coming from Phalodi road Phanta and going towards Balesar. The Mini Bus was coming from Balesar and going towards Phalodi side. The width of the road was 24 feet and as per the site map, the spot of the accident is at point 'A' which 02 feet from the center of the road towards right side of the Bus. It has also come on record that the Jeep was being driven at a speed of 70-80 km per hour. It is also clear from the site map that there was enough space available to the Jeep on the left side of the road. The statement of PW5 Pratap Singh if taken into consideration and examined in the light of site map prepared, two things will be clear (i) that the Jeep was being driven at a high speed of 70-80 km per hour (ii) there was at least 05 to 06 feet space available to the Jeep on the left side and if the driver of the Jeep would have been vigilant, he could have further kept the Jeep on the left side of the road as the Mini Bus coming from the opposite side was two feet from the center of road towards the right side. If the Jeep would have been driven or taken further on the left side of the road, the accident could have been averted. The speed of the Jeep also suggests that there was no time left for the driver of the jeep to maneuver the Jeep towards left side of the road to avoid the accident. The Jeep was thus being driven at a fast speed. 17. The speed of the Jeep also suggests that there was no time left for the driver of the jeep to maneuver the Jeep towards left side of the road to avoid the accident. The Jeep was thus being driven at a fast speed. 17. A conjoint reading of the statement as well as site map clearly shows that it was not negligence of the Bus driver alone which has caused the present accident and the Driver of the Jeep is also partly responsible if not equally responsible for causing the accident as his vigilance and dexterity to keep the vehicle on the left side would have avoided the accident. Therefore, I am of the considered opinion that the finding of the learned tribunal on the issue No.1 is not correct as in the case of RSRTC v. Balvir Singh & Anr. reported in 2009 R.A.R. 146 (Raj.) , it was held by this court :- "In the dead of the night, while the bus driver saw the jeep coming in the middle of the road, considering the fact that sufficient space was available to take the bus off the road, the bus driver should have taken the bus off the road in order to avoid the accident. But, instead of taking the bus off the road, he continued to drive the bus on the road. Therefore, part of the negligence is also attributable to him. Therefore, this court has no hesitation in holding that while the bus driver was negligent to the extent of 25%, the jeep driver was negligent to the extent of 75%. Thus, both the Corporation and the Insurance company of the jeep are severally and jointly responsible, to the extent of negligence mentioned above, for payment of compensation to the claimants". 18. In view of above, it is held that driver of the Jeep is negligent to the extent of 25% and driver of the Mini Bus is held liable to the extent of 75%. So far as the argument with respect to the reliability of the documents not proved by anybody is concerned, it is held that in view of the judgments of the Hon'ble Supreme Court (supra) since the same have been produced by the claimants themselves, therefore, there is no force in the argument and the same is rejected. 19. So far as the argument with respect to the reliability of the documents not proved by anybody is concerned, it is held that in view of the judgments of the Hon'ble Supreme Court (supra) since the same have been produced by the claimants themselves, therefore, there is no force in the argument and the same is rejected. 19. So far as contention with respect to modification of the quantum of the compensation in each case is concerned, I consider it appropriate that the award is liable to be recomputed in terms of the Judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi & Ors. as under: (I) In Civil Misc. Appeal No. 700/2003 (MACT Case No.207/99): For future prospects: 40% of Rs. 15000/- (Income of deceased) Rs. 6000/- Rs. 15000/- + Rs. 6000/- Rs. 21000/- Amount to be deducted as spent on himself. Rs. 21000/-/1/3 = Rs. 7000/- Dependence Amount Rs. 21000 - Rs. 7000 = Rs. 14000/- The age of deceased was 18 years therefore, a multiplier of 18 will be applied. (i) Compensation due to death 14000 x 18 Rs. 2,52,000/- (ii) Loss of consortium Rs. 40,000/- (iii) For the Loss of Estate Rs. 15,000/- (iv) Funeral Expenses Rs. 15,000/- Total Rs. 3,22,000/- (ii) In Civil Misc. Appeal No. 236/2004 (MACT Case No.315/99): For future prospects: 25% of Rs. 3000/- (Income of deceased) Rs. 750/- Rs. 3000/- + Rs. 750/- Rs. 3,750/- Amount to be deducted as spent on himself. Rs. 3,750/-/1/5 = Rs. 750/- Dependence Amount Rs. 3,750 - Rs. 750 = Rs. 3,000/- The age of deceased was 45 years therefore, a multiplier of 14 will be applied. (i) Compensation due to death 3000 x 12 x 14 Rs. 5,04,000/- (ii) Loss of consortium Rs. 40,000/- (iii) For the Loss of Estate Rs. 15,000/- (iv) Funeral Expenses Rs. 15,000/- Total Rs. 5,74,000/- (iii) In Civil Misc. Appeal No. 237/2004 (MACT Case No.198/2001): For future prospects: 40% of Rs. 15000/- (Income of deceased) Rs. 6000/- Rs. 15000/- + Rs. 6000/- Rs. 21000/- Amount to be deducted as spent on himself. Rs. 21000/-/1/2 = Rs. 10500/- Dependence Amount Rs. 21000 - Rs. 10500 = Rs. 10,500/- The age of deceased was 20 years therefore, a multiplier of 18 will be applied. (i) Compensation due to death 10,500 x 18 Rs. 15000/- (Income of deceased) Rs. 6000/- Rs. 15000/- + Rs. 6000/- Rs. 21000/- Amount to be deducted as spent on himself. Rs. 21000/-/1/2 = Rs. 10500/- Dependence Amount Rs. 21000 - Rs. 10500 = Rs. 10,500/- The age of deceased was 20 years therefore, a multiplier of 18 will be applied. (i) Compensation due to death 10,500 x 18 Rs. 1,89,000/- (ii) Loss of consortium NIL (iii) For the Loss of Estate Rs. 15,000/- (iv) Funeral Expenses Rs. 15,000/- Total Rs. 2,19,000/- (iv) In Civil Misc. Appeal No. 238/2004 (MACT Case No.280/99): For future prospects: 40% of Rs. 15000/- (Income of deceased) Rs. 6000/- Rs. 15000/- + Rs. 6000/- Rs. 21000/- Amount to be deducted as spent on himself. Rs. 21000/-/1/3 = Rs. 7000/- Dependence Amount Rs. 21000 - Rs. 7000 = Rs. 14000/- The age of deceased was 20 years therefore, a multiplier of 18 will be applied. (i) Compensation due to death 14000 x 18 Rs. 2,52,000/- (ii) Loss of consortium Rs. 40,000/- (iii) For the Loss of Estate Rs. 15,000/- (iv) Funeral Expenses Rs. 15,000/- Total Rs. 3,22,000/- (v) In Civil Misc. Appeal No. 239/2004 (MACT Case No.314/99): For future prospects: 40% of Rs. 3000/- (Income of deceased) Rs. 1200/- Rs. 3000/- + Rs. 1200/- Rs. 4200/- Amount to be deducted as spent on himself. Rs. 4200/-/1/4 = Rs. 1050/- Dependence Amount Rs. 4200 - Rs. 1050 = Rs. 3150/- The age of deceased was 35 years therefore, a multiplier of 16 will be applied. (i) Compensation due to death 3150 x 12 x 16 Rs. 6,04,800/- (ii) Loss of consortium Rs. 40,000/- (iii) For the Loss of Estate Rs. 15,000/- (iv) Funeral Expenses Rs. 15,000/- (v) Medical expenses Rs. 14,500/- Total Rs. 6,89,300/- 20. Therefore, in view of whatever stated above, the award dated 16.06.2003 is modified with the direction that the respondents No.1 to 3 are liable to pay 25% compensation as computed above to the claimants respectively. The appeal against respondents No.4 to 6 is dismissed and whatever amount has been deposited in pursuance of the direction of the tribunal, the same may be released to the claimants. 21. The respondents No.1 to 3 will deposit the amount as stated above within a period of six weeks from today with an interest @ 7.5% p.a. from the date of filing of the claim petitions. 21. The respondents No.1 to 3 will deposit the amount as stated above within a period of six weeks from today with an interest @ 7.5% p.a. from the date of filing of the claim petitions. The amount so deposited shall be disbursed to the claimants by the tribunal in accordance with law. Registry is directed to send the record to the tribunal at the earliest. 22. The appeals stand disposed of in above terms.