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2018 DIGILAW 610 (RAJ)

Sohan Ram v. Taj Khan

2018-02-21

DINESH MEHTA

body2018
JUDGMENT : Dinesh Mehta, J. 1. The factual backdrop for adjudication of the present appeal filed against judgment and award dated 14.2.2006 passed by Motor Accidents Claims Tribunal, Jodhpur in MACT Case No. 252 of 2005 is that the appellant was a pillion rider going on a motor cycle, bearing registration No. RMC 1685, when a car bearing registration No. RJ 23-C 0515 collided with the motor cycle and resulted in a road accident, due to which the appellant suffered injuries on his leg and right hand. 2. The appellant-claimant had lodged a claim under the provisions of Motor Vehicles Act, which was registered as Claim Case No. 252 of 2005 and came to be allowed by the Tribunal, whereby a sum of Rs. 1,94,725/- had been determined as a total amount payable to the claimant. However, while determining the final amount of award payable to the claimant, the Tribunal has deducted 40 per cent of the amount as according to it, the negligence of the driver of motor cycle has also contributed in the occurrence of accident. 3. Mr. M.R. Choudhary, learned counsel appearing for the appellant, assailing the impugned judgment and award contended that the learned Tribunal had committed an apparent error of law in deducting 40 per cent of the total amount on account of fault of the rider of the motor cycle. He contended that the appellant-claimant was a pillion rider and as such, the amount payable to him cannot be deducted for the fault of the driver of the motor cycle. He relied upon the judgment of this court dated 20.7.2016 rendered in SB Civil Misc. Appeal No. 1426 of 2008 in the matter of Subhash Chandra v. Union of India and contended that in the light of the settled law, the deduction of 40 per cent of the amount deserves to be set aside. 4. Learned counsel for the appellant also contended that while determining the compensation, the Tribunal has not considered the future prospects at all. In this regard, he relied upon the judgment of the Hon'ble Supreme Court in the case of Raj Kumar v. Ajay Kumar, 2011 ACJ 1 (SC) and contended that the future prospects are required to be reckoned even in the injury cases also. 5. Mr. In this regard, he relied upon the judgment of the Hon'ble Supreme Court in the case of Raj Kumar v. Ajay Kumar, 2011 ACJ 1 (SC) and contended that the future prospects are required to be reckoned even in the injury cases also. 5. Mr. Choudhary submitted that in the light of the documentary proof of 40 per cent disablement and the fact that the appellant was 27 years of age at the time of accident, the future prospects of 40 per cent should be awarded in the light of the recent judgment rendered by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Pranay Sethi, 2017 ACJ 2700 (SC). 6. Mr. L.D. Khatri, learned counsel appearing for the respondents, opposed the submissions so made by the appellant and contended that it is a case of composite negligence and the appellant cannot take advantage of the fault of the driver of the vehicle on which he was riding. Mr. Khatri also contended that looking to the meagre medical expenses of Rs. 1,524, the disablement of 40 per cent appears to be unrealistic. 7. Heard learned counsel for the parties and perused the material available on record. 8. This court finds substance in the argument of learned counsel for the appellant that in case of a pillion rider, deduction on the ground of fault of the driver of the vehicle cannot be made. The law on the subject is well settled, particularly by judgment dated 20.7.2016 in the case of Subhash Chandra (supra). 9. In view of above, the judgment and award impugned dated 14.2.2006 to the extent of deduction of 40 per cent is set aside. 10. Then comes the question of future prospects. In this regard, in the light of the judgment of the Hon'ble Supreme Court in the case of Raj Kumar, 2011 ACJ 1 (SC), this court is of the considered view that even in case of injury, once the Tribunal decides to award compensation for the loss of income, as a necessary corollary, the Tribunal is required to take into account the future prospects also. As such, looking to the age of the appellant at the time of accident, which was 27 years, this court is of the opinion that 40 per cent of the income is required to be added in the total income calculated by the Tribunal as future prospects or increase in the income. 11. In view of the discussion above, the appeal filed by the appellant is allowed and the amount of compensation is re-determined as under: Amount of award calculated by the Tribunal Rs. 1,94,724 Future prospects (40 per cent of Rs. 1,63,200) Rs. 65,280 Less amount already paid Rs. 1,16,835 Additional amount payable Rs. 1,43,169 12. The appellant shall also be entitled to interest at the rate of 7.5 per cent per annum on the amount of Rs. 1,43,169/- indicated above, from the date of filing of the claim petition, i.e., 11.8.2004 till the date of payment. 13. So far as the submissions made by learned counsel for the respondent regarding right of the respondent to take proceedings against Sita Ram, the driver of the motor cycle, is concerned, the law laid down by the Hon'ble Supreme Court in the case of Khenyei v. New India Assurance Co. Ltd., 2015 ACJ 1441 (SC), takes care of the said situation and no direction needs to be given by this court in this regard. The appeal stands allowed.