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2020 DIGILAW 538 (PNJ)

Sushila Devi v. Jai Singh

2020-02-12

ALKA SARIN

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JUDGMENT Alka Sarin, J. - The present appeal has been preferred by the claimants against the award dated 13.01.2011 passed by the Motor Accident Claims Tribunal, Gurgaon. 2. The facts, in brief, necessary for the disposal of the present appeal are that the claimants (appellants herein) approached the Tribunal on the averments that Ajit Singh (since deceased) was employed as driver with Autofit (P) Limited. During the night intervening 22-23.08.2009, he along with a helper loaded vehicle bearing registration No.HR-55-C-0684 and left his company premises for Hero Honda Chowk. At about 12.50 A.M., on 23.08.2009, near Hero Honda Chowk, he was stated to have heard some noise from the said vehicle whereafter he parked the vehicle by the side of the road after proper indication and got down to check the same. It was further averred that when Ajit Singh was standing behind his vehicle, bus bearing registration No.RJ-06-PA-1254, which was being driven by respondent No.1 rashly and negligently, came from behind and struck against Ajit Singh. As a result of the accident, Ajit Singh sustained fatal injuries and died on the spot. Respondent No.1 stopped his bus for a moment and then sped away. FIR No.211 dated 23.08.2009 under sections 279 and 304-A IPC was registered against respondent No.1 qua the accident in Police Station Kherki Daula, District Gurgaon. The mother of the deceased was arrayed as respondent No.3 in the claim petition. 3. The claim petition was contested by respondent Nos.1 and 2 taking up the plea that the accident in question was not caused by the driver of bus No.RJ-06-PA-1254 and the same had been falsely involved, in collusion with the local police. 4. The Tribunal, after recording the evidence and hearing the parties, held that the accident was caused as a result of contributory negligence and liability was fastened on the deceased and respondent No.1 in the ratio of 50:50. The Tribunal assessed the total compensation of Rs. 4,52,000/- under the following heads:- Sr. No. Head Compensation Awarded 1. Annual Income - Rs. 36,000/- (monthly income Rs. 3000x12) 2. Annual dependency after 1/4 rd deduction towards personal expenses - Rs. 27,000/- 3. Multiplier of 16 - Rs. 4,32,000/- 4. Transportation and Funeral expenses - Rs. 10,000/- 5. Loss of consortium - Rs. 10,000/- Total compensation: - Rs. 4,52,000/- under the following heads:- Sr. No. Head Compensation Awarded 1. Annual Income - Rs. 36,000/- (monthly income Rs. 3000x12) 2. Annual dependency after 1/4 rd deduction towards personal expenses - Rs. 27,000/- 3. Multiplier of 16 - Rs. 4,32,000/- 4. Transportation and Funeral expenses - Rs. 10,000/- 5. Loss of consortium - Rs. 10,000/- Total compensation: - Rs. 4,52,000/- Since the Tribunal had held that there was contributory negligence in causing the accident, the claimants and respondent No.3 (mother of deceased) were ordered to be paid half of the said amount of total compensation i.e. Rs.2,26,000/-. The claimants were also awarded interest at the rate of 7% per annum from the date of filing of the claim petition till realisation. Out of said amount of Rs.2,26,000/- a sum of Rs. 1,00,000/- was ordered to be paid to the widow of the deceased, Rs. 50,000/- each to claimant Nos.2 and 3, the minor children, and the remaining amount of Rs.26,000/- to the mother of the deceased. 5. I have heard learned counsel for the parties. 6. It has been contended by learned counsel for the appellants that the finding qua contributory negligence is contrary to the pleadings as well as the evidence on record. Learned counsel for the appellants pointed to the written statement filed by the respondents wherein no such plea regarding contributory negligence was raised. In fact, respondent No.1 did not even step into the witness box and hence, the Tribunal, only on the basis of the assumptions and presumptions, held that there was contributory negligence on the part of the deceased. It has further been contended that there was no suggestion put to the eye-witness, PW5, qua any contributory negligence and, that being so, the finding of the Tribunal deserved to be set aside. 7. It was further contended on behalf of the appellants that the income has wrongly been assessed by the Tribunal at Rs.3,000/- per month, whereas, PW2-Rajinder Singh had appeared in the witness box and deposed that the deceased was employed as a driver with M/s Autofit (P) Limited at a monthly salary of Rs.5,114/- per month. In support thereof, he also placed on record the wage slip, Ex.P2, for the month of August, 2009. It has further been contended that no future prospects have been awarded and also that the amounts awarded under the conventional heads and consortium are on the lower side. In support thereof, he also placed on record the wage slip, Ex.P2, for the month of August, 2009. It has further been contended that no future prospects have been awarded and also that the amounts awarded under the conventional heads and consortium are on the lower side. 8. Per contra, learned counsel for the respondents has stated that the Tribunal has rightly come to the conclusion that it was a case of contributory negligence and that there is no scope for enhancement of the amount awarded by the Tribunal which is just and fair. 9. In the present case, eye-witness PW5 had appeared in the witness box and stated that the deceased was standing on the katcha portion on left side of the road when a Rajasthan Roadways bus bearing registration No.RJ-06-PA-1254, which was being driven by respondent No.1 in a rash and negligent manner, came from Jaipur side and hit Ajit Singh, who sustained grievous injuries and, eventually, succumbed to his injuries. The driver of the bus (respondent No.1) did not even step into the witness box to refute the said testimony of PW5. The plea of contributory negligence having been never raised by the respondents coupled with the fact that respondent No.1 did not step into the witness box to refute the version put forth by PW5 and the fact that no suggestion was even put to PW5 in cross-examination qua contributory negligence would necessarily lead to the conclusion that in fact there was no contributory negligence on the part of the deceased in causing the accident. 10. In view of the above, the finding qua contributory negligence is set aside. 11. I also find force in the argument of learned counsel for the appellants that the monthly income of the deceased, as assessed by the Tribunal, is on the lower side. Even if monthly income of the deceased is not taken as per the wage slip produced by the claimants, the wages would have to be assessed as per the minimum wages prevailing in 2011 for an unskilled worker which were to the tune of Rs.3,914/- per month. I, therefore, assess the income of the deceased, as per the minimum wages, at Rs.3,914/- per month. I, therefore, assess the income of the deceased, as per the minimum wages, at Rs.3,914/- per month. I further find that as per the dictum laid down by the Hon'ble Supreme Court in Smt. Sarla Verma and others vs. Delhi Transport Corporation and another, 2009 6 SCC 121 , National Insurance Company Ltd. vs. Pranay Sethi and others, 2017 16 SCC 680 and Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and others, 2018 18 SCC 130 , the Tribunal has erred in applying the multiplier of 16. The correct multiplier, which ought to have been applied, is 15. The Tribunal has failed to grant any amount towards future prospects, which ought to have been granted @ 40%. Further, I find that the compensation awarded by the Tribunal under the conventional heads is also on the lower side. I also find that the Tribunal has not granted any parental and filial consortium, which ought to have been granted as per the dictum laid down by the Hon'ble Apex Court in Magma General Insurance Company Limited (supra). 12. In view of the above, I deem it just and proper to award the following compensation:- Sr. No. Head Compensation Awarded 1. Monthly income - Rs. 3,914/- 2. Annual income - Rs. 46,968/- 2. Annual dependency of appellants after 1/4 deduction towards personal expenses - Rs. 35,226/- (46968-11742) 3. Annual dependency after adding future prospects @ 40% - Rs. 49,316/- (35226+14090) 4. Multiplier of 15 (Age 38 years) - Rs. 7,39,746/- (Rs.49316x15) 5. Loss of estate - Rs. 15,000/- 6. Funeral expenses - Rs. 15,000/- 7. Loss of spousal consortium - Rs. 40,000/- 8. Parental consortium to two children @ Rs.40,000/- each - Rs. 80,000/- 9. Filial consortium - Rs. 40,000/- 13. The appellants/claimants and respondent No.3 (mother of deceased) would, thus, be entitled to an amount of Rs.7,03,746./- over and above the amount awarded by the Tribunal which shall also carry interest at the rate of 7% per annum from the date of filing of claim petition till realisation. Out of the enhanced amount of compensation, a sum of Rs.4,50,000/- shall be paid to the widow of the deceased, Rs.1,00,000/- each to two minor children and the remaining amount of Rs.53,746/- to the mother of the deceased. Out of the enhanced amount of compensation, a sum of Rs.4,50,000/- shall be paid to the widow of the deceased, Rs.1,00,000/- each to two minor children and the remaining amount of Rs.53,746/- to the mother of the deceased. The share of the children shall be deposited in the FDRs in some nationalized bank which shall be payable to them on their attaining majority. 14. In view of the above, the award of the Tribunal is modified to the above extent. The appeal is accordingly disposed of.