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2018 DIGILAW 153 (PNJ)

Neeraj Madhur v. Jameen Singh Alias Jameet

2018-01-15

AVNEESH JHINGAN

body2018
JUDGMENT Mr. Avneesh Jhingan, J.: (Oral) - The present appeal has been filed against the award dated 25.7.2008 passed by the Motor Accident Claims Tribunal, Gurgaon (for short, ‘the Tribunal’). 2. The record of this case was burnt in fire and from the salvaged record of the partially burnt case the file was reconstructed subject to all just exceptions and further verification. 3. Anil Kumar Madhur, aged 58 years lost his life in an accident that occurred in an intervening night of 5/6.6.2006. He was travelling in a vehicle bearing registration No. HR-26Z-6460 which was driven by his son (for short ‘vehicle’). The said vehicle was being driven at a normal speed. Near Haldiram Plant, Gurgoan, the said vehicle was overtaking a trolla bearing registration No. HR-38V-4077. The trolla was being overtaken only when the driver of the said vehicle gave side to the vehicle. The said trolla suddenly turned right without caring that the vehicle to whom side was given was overtaking the trolla. As a result of swaying side by the trolla, the vehicle got stuck between the divider and the trolla. On realising the accident, the driver of the trolla suddenly applied brakes. One trolla which was coming from behind hit the vehicle. As a result of the accident, Anil Kumar Madhur lost his life and was declared brought dead by Kalyani Hospital, Gurgaon. FIR No. 413/06 dated 6.6.2006 was registered. 4. A claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (for short, ‘the Act’) by the widow and the son of the deceased. The Tribunal held that there was a contributory negligence in the ratio of 40-40-20 i.e. 40% of the vehicle , 40% of the trolla which was being overtaken i.e. the offending vehicle and 20% of the trolla which stuck from behind. The Tribunal awarded a sum of Rs.14,40,000/-. The said amount was scaled down to Rs.5,76,000/- because of the contributory negligence. The amount awarded carried an interest @ 7.5% per annum. 5. The present appeal has been filed challenging the findings of the Tribunal regarding contributory negligence and on the fact that multiplier of 8 has been wrongly applied, no future prospects have been awarded and no amounts have been awarded under conventional heads. 6. I have heard learned counsel for the parties, perused the paper book and the entire record. 7. The present appeal has been filed challenging the findings of the Tribunal regarding contributory negligence and on the fact that multiplier of 8 has been wrongly applied, no future prospects have been awarded and no amounts have been awarded under conventional heads. 6. I have heard learned counsel for the parties, perused the paper book and the entire record. 7. The facts as mentioned above are that the accident occurred because offending vehicle at first instance gave side to the vehicle and while it was overtaking, the offending vehicle suddenly turned to the right side, because of which the vehicle was trapped between the trolla and the divider. In all this another trolla came from behind and hit the vehicle. The Tribunal while deciding the issue has failed to appreciate that the onus casted on the claimants under Section 166 of the Act is not to the extent that the rash and negligent driving of the vehicle is to be proved beyond doubt. 8. The Hon’ble Apex Court in the case of Kusum Lata and others vs. Satbir and others, [2011(2) Law Herald (SC) 1169 : 2011(1) Law Herald (Acc.) 372 (SC)] : reported as 2011 (3) SCC 648 has held that the onus is to be discharged on the principle of preponderance of probability. 9. In the present case, the Tribunal assumed facts regarding the occurrence of the accident. Without any evidence on record it was recorded that the driver of the vehicle should have considered that there was sufficient space to pass the offending vehicle. In the same breath, the Tribunal records that respondent No.1 never appeared in the witness box to rebut the statement of PW3 Arunabh and in such circumstances, his statement is taken as correct. As per this statement, the offending vehicle gave side to the vehicle and suddenly took right side. There was no evidence on record to show that the trolla which was coming from behind was not maintaining a safe distance. The Tribunal assumed that the driver of the trolla coming from behind was also negligent as it is assumed that it stuck from behind only because he was not maintaining a safe distance. 10. The claimants in the present case have been able to discharge the onus of rash and negligent driving of the offending vehicle by statement of PW3. The Tribunal assumed that the driver of the trolla coming from behind was also negligent as it is assumed that it stuck from behind only because he was not maintaining a safe distance. 10. The claimants in the present case have been able to discharge the onus of rash and negligent driving of the offending vehicle by statement of PW3. It may be noted at this stage that the said statement was neither contradicted nor any evidence contrary to it was placed on record by the respondents. In such circumstances, the findings of the Tribunal regarding the contributory negligence cannot be upheld. The result is that the accident occurred due to the rash and negligent driving of the offending vehicle. 11. There is no dispute raised by the parties with regard to the monthly earning of the deceased and the deduction of 1/3rd made for self expenses. The multiplier of 9 should have been applied by the Tribunal in view of the fact that the deceased was 58 years of age. The said issue is squarely covered by the decision of Hon’ble Apex Court in the matter of Smt. Sarla Verma and others vs. Delhi Transport Corporation and another, [2009(3) Law Herald (SC) 2107 : 2010(1) Law Herald (Acc.) (SC) 65] : reported as (2009) 6 SCC 121 . The contention of the learned counsel for the appellants regarding the compensation under conventional heads and awarding of future prospects deserves acceptance in spite of the resistance by learned counsel for the insurance company. The Hon’ble Apex Court in case of “National Insurance Company Limited Vs. Pranay Sethi and others, [2017(4) Law Herald (P&H) 2970 (SC) : 2017 LawHerald.Org 1565] : Special Leave Petition (Civil) No. 25590 of 2014”, decided on 31.10.2017 has held that where deceased was in the age group of 50-60 years and was having a fixed salary, 10% future prospects are to be awarded. It has further been held that Rs. 70,000/- is to be awarded under the conventional heads i.e. Rs. 15,000/- each for loss of estate and funeral expenses and Rs.40,000/- for loss of consortium. There is no dispute regarding the annual dependency assessed by Tribunal. 12. The compensation is being recalculated as under.:- Annual dependency as assessed by the Tribunal Rs. 1,80,000/ Add 10% future prospects Rs. 18,000/ Total dependency Rs. 1,98,000/ Loss of dependency by applying multiplier of 9 Rs. There is no dispute regarding the annual dependency assessed by Tribunal. 12. The compensation is being recalculated as under.:- Annual dependency as assessed by the Tribunal Rs. 1,80,000/ Add 10% future prospects Rs. 18,000/ Total dependency Rs. 1,98,000/ Loss of dependency by applying multiplier of 9 Rs. 1,98,000 x 9 = Rs. 17,82,000/ Loss of Estate Rs. 15,000/ Funeral expenses Rs. 15,000/ Loss of consortium Rs. 40,000/ Total Rs. 18,52,000/ 13. Consequently, the award dated 25.7.2008 is modified to the extent that the compensation of Rs. 5,76,000/- awarded by the Tribunal is enhanced to Rs.18,52,000/-. 14. The appellants shall be entitled to the enhanced amount along with interest at the rate of 6% per annum from the date of filing of the claim petition till realisation of the amount. 15. The appeal is partly allowed in the aforesaid terms.