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2019 DIGILAW 2495 (RAJ)

Jaspreet Kaur v. Phoolmati Sharma

2019-09-17

PUSHPENDRA SINGH BHATI

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ORDER : Pushpendra Singh Bhati, J. 1. Brief facts of this case, as noticed by this Court, are that on 18.07.2001 Rajendra Paul Singh the husband of appellant No. 1 accompanied by Phoola Singh were going on a Motor Cycle from their village 36 GB to Sri Bijeynagar, and while crossing the main road going from Suratgarh to Anoopgarh, they were hit by Tanker No. R.J. 31/G-0001 which resulted into the instant death of Phoola Singh and serious injuries to Rajendra Paul Singh who also succumbed to the injuries subsequently. The said accident was reported at Police Station Sri Bijeynagar and FIR No. 209/2001 was registered under Sections 304-A, 337 and 279 of IPC. The appellants being the daughters, son and mother respectively of the deceased filed the claim petition, in which, a sum of Rs. 72,00,000/- was claimed as compensation on account of death of Rajendra Paul Singh. The owner and driver of the Tanker in question denied the liability while averring that the motor-cycle rider was negligent. 2. The averments made by learned counsel for the appellants/claimants are that the surviving members of the deceased are grand-mother and three children. 3. Learned counsel for the appellant has relied upon the judgment rendered by Hon'ble Apex Court in the matter of Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer & Anr. in appeal No. 8424/2003 on 27.10.2003, relevant portion of which reads as under:- "Keeping in view the observations made by this Court in various cases, several other factors need to be taken note of. The deceased was unmarried. The contribution to the parents who had their separate earnings being employed and educated have relevance. The possibility of reduction in contribution once a person gets married is a reality. The compensation is relatable to the loss of contribution or the pecuniary benefits. The multiplier adopted by the Tribunal and confirmed by the High Court is certainly on the higher side. Considering the age of the claimants it can never exceed 10 even by the most liberal standards. Worked out on that basis amount comes to Rs. 3.6 lakhs at the monthly expected income fixed by the Tribunal and confirmed by the High Court. Considering the age of the claimants it can never exceed 10 even by the most liberal standards. Worked out on that basis amount comes to Rs. 3.6 lakhs at the monthly expected income fixed by the Tribunal and confirmed by the High Court. Looking into the nature of the contributory negligence of the deceased after making an appropriate deduction which can reasonably be fixed at 25%, the compensation amount payable by the Corporation can be fixed at Rupees 3 lakhs including the amount awarded by the Tribunal and confirmed by the High Court for loss of expectation of life. Interest at the rate as awarded by the High Court is maintained from the date of application for compensation." 4. Learned counsel for the appellants/claimants submits that the Hon'ble Apex Court has followed the rule that if both the parties are careless then the party which had the last opportunity of avoiding the accident is alone liable. 5. Learned counsel for the appellant/claimants has also relied upon the judgment passed by Jaipur Bench of this Hon'ble Court in Pyari Devi & Ors. Vs. Shri Dhanna Singh & Anr. (S.B. Civil Misc. Appeal No. 1615/2008) decided on 07.12.2011, relevant portion of which reads as under:- "In Yuvraj Vs. Shri Prakash Chandra and Others, Supra, wherein the appellant was riding on the motorcycle along-with his two friends and thus, there were three riders on the motorcycle, and learned Tribunal concluded that the appellant had contributed 25% to the accident. On appeal, this court held that even if negligence cannot be attributed to him, a certain amount of rashness is certainly attributable to him and that the finding of fact as concluded by the learned Tribunal cannot be faulted and held him to have contributed 25% to the accident." 6. Learned counsel for the appellants/claimants has also relied upon the judgment rendered by Hon'ble Apex Court in Vilasbhai Thore Vs. Shivabhai Tejabhai Harijan reported in 2014 0 Supreme (Guj) 73, relevant portion of which reads as under:- "5. The concept of contributory negligence requires to be considered in this case. The vehicles were not of equal magnitude. Learned counsel for the appellants/claimants has also relied upon the judgment rendered by Hon'ble Apex Court in Vilasbhai Thore Vs. Shivabhai Tejabhai Harijan reported in 2014 0 Supreme (Guj) 73, relevant portion of which reads as under:- "5. The concept of contributory negligence requires to be considered in this case. The vehicles were not of equal magnitude. It was an involvement of truck of one side which was coming down of the slope and there were marks of brakes of car, and therefore, it can be said that the driver of the car had taken pre-caution, whereas the driver of the truck lost the control and collusion took place. The contributory negligence of small vehicle is less compare to a big vehicle. The driver of the big vehicle has to take more caution. In light of the facts and circumstances as emerges before this Court, the driver of the truck was more negligent than the driver of the car, and therefore, the negligence of driver of the car can be attributed to 30% instead of 50%." 7. Learned counsel for the appellant has also relied upon the judgment passed by Jaipur Bench of this Hon'ble Court in the matter of Mst. Bhagwati Devi & Ors. Vs. Deshram & Ors. (S.B. Civil Misc. Appeal No. 623/1998) decided on 13.11.2009, relevant portion reads as under:- "The negligence on the part of the heavier vehicle, the offending truck, in my opinion is much greater and even if the deduction on amount of the contributory negligence was to be made, the same ought to have been made of 25% as against 50%, as held by the learned Tribunal. Looking to the fact that the respondents vehicle was the heavier vehicle it required greater care by its driver as compared to the driver of the motorcycle." 8. Learned counsel for the respondent has, however, vehemently submitted that the contributory negligence of the motor-cycle rider i.e. deceased decided as 50% is correct. Learned counsel for the respondent has taken support of Rules of the Road Regulations, 1989 and particularly Rule 9, which reads as follows:- "9. Giving way to traffic at road junction. Learned counsel for the respondent has, however, vehemently submitted that the contributory negligence of the motor-cycle rider i.e. deceased decided as 50% is correct. Learned counsel for the respondent has taken support of Rules of the Road Regulations, 1989 and particularly Rule 9, which reads as follows:- "9. Giving way to traffic at road junction. The driver of a motor vehicle shall, on entering road intersection at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand." 9. Learned counsel for the respondent has further submitted that a bare look at the site plan shows the contributory negligence to the extent of 50% of each of the vehicles in question was justified. Learned counsel for the respondent submits that in accordance with jurisprudence laid down by the Hon'ble Apex Court, the last opportunity to avoid the accident was in the hands of the motor-cycle rider. 10. After hearing learned counsel for the parties and perusing the record of the case along with the precedent law cited at Bar, this Court is of the opinion that the record of the case including site plan suggest that the accident could have been avoided at the instance of the driver of the Tanker bearing No. 31/G-0001 and though the joining of the main road required the motor-cycle rider to be more conscious but attributing 50% contributory negligence to them seems to be a bit far-fetched. The precedent law cited above also indicate that a lenient view towards the smaller vehicle was taken by the court while compared to larger vehicle, and thus, after carefully scrutinizing the various aspects including the site plan, this Court is of the opinion that it would be suffice to reduce the contributory negligence of the motor-cycle rider to 30%. This Court, thus, concludes that 70% negligence shall be of the tanker and 30% shall be of the motor-cycle. After reaching such conclusion, both the counsel were directed to arrive at a calculation as per the precedent law laid down in National Insurance Company Ltd. Vs. This Court, thus, concludes that 70% negligence shall be of the tanker and 30% shall be of the motor-cycle. After reaching such conclusion, both the counsel were directed to arrive at a calculation as per the precedent law laid down in National Insurance Company Ltd. Vs. Pranay Sethi reported in AIR 2017 SC 5157 , which they have arrived at and a joint calculation submitted by counsel for the parties taking the negligence to be 70% of the tanker is as follows:- Fresh determination : 30% of 7,12,600 2,13,780 (7,12,600-2,13,780 4,98,820 Earlier Paid 2,27,217 (4,98,820-2,27-217 2,71,603 11. Thus, the Insurance Company shall be required to pay the enhanced amount of Rs. 2,71,603/- along with 6% interest from the date of filing of claim petition till actual payment is made. The enhanced amount is to be paid within two months from today, failing which the same shall carry interest @ 9 % per annum for the subsequent period (i.e. after two months from today) till actual payment is made.