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2021 DIGILAW 382 (RAJ)

Jaspreet Kaur v. C. Karthi

2021-02-15

VINIT KUMAR MATHUR

body2021
JUDGMENT 1. With the consent of the parties, the present appeals are being heard and decided finally. 2. Both the aforesaid appeals shall stand decided by this common judgment as they arise out of the same accident. 3. The present appeals arise out of the Judgment and Award dated 15.02.2017 passed by the Judge, Motor Accident Claims Tribunal, Sri Karanpur, District Sri Ganganagar in Claim Case No. 36/2014 (Smt. Jaspreet Kaur & ors. Vs. C. Karthi & ors.) vide which the Tribunal awarded a total sum of Rs. 26,37,000/- along with interest @ 7.5% per annum as compensation under various heads in favour of the appellants-claimants in CMA No. 2526/2017. 4. CMA No. 2526/2017 has been filed by the claimants seeking enhancement of compensation amount awarded by the Tribunal, whereas, CMA No. 1367/2017 has been filed by the non-claimant -Insurance Company of the subject truck assailing the validity of the Judgment dated 15.02.2017 on the ground of contributory negligency of both the vehicles involved in the present case. 5. A claim petition was filed by the claimants (appellants in CMA No. 2526/2017) before the Tribunal stating that on 20.06.2010, the deceased while driving Maruti Car bearing Registration No. HR-51-N-4375 was coming from Masruwala to his in-laws house situated at 9G. When he reached at 22 ML near the Baramasi Canal Bridge on the Suratgarh to Ganganagar road, the non-claimant No. 1, the driver of truck bearing Registration No. TN-AY-3560 driving it rashly and negligently hit the Maruti car, due to which Jasvinder Singh sustained grievous injuries and died on the spot. In these circumstances, the appellants-claimants claimed the compensation under various heads on account of death of the deceased Jasvinder Singh in the said accident. 6. The Tribunal after framing the issues, evaluating the evidence and hearing the arguments of the parties, passed the judgment and award dated 15.02.2017 vide which an amount of Rs. 26,37,000/- was awarded as compensation under various heads in favour of the appellants-claimants. 7. Heard learned counsel for the parties. 8. CMA No. 1367/2017 filed by the non-claimant/appellant -Insurance Company is taken up firstly. 9. Learned counsel for the appellant-Insurance Company submits that the findings of fact recorded by the Tribunal with respect to the Issue Nos. 1 and 2, on the face of it, are erroneous. 7. Heard learned counsel for the parties. 8. CMA No. 1367/2017 filed by the non-claimant/appellant -Insurance Company is taken up firstly. 9. Learned counsel for the appellant-Insurance Company submits that the findings of fact recorded by the Tribunal with respect to the Issue Nos. 1 and 2, on the face of it, are erroneous. He further submits that the accident in the present case was occurred on 20.06.2010 between the Maruti Zen Car, which was being driven by the deceased Jasvinder Singh, who was traveling from Suratgarh to Sri Ganganagar and the subject truck which was driven by the non-claimant/respondent - C. Karthi, which was coming from the opposite direction i.e. from Sri Ganganagar to Suratgarh. He further submits that as per the site plan prepared by the investigating agency pursuant to the F.I.R. lodged with respect to the accident in the present case, the place of accident was marked as "X", which was shown at the right side of the Maruti Zen car driven by the deceased. As per the site plan, the Maruti Zen Car was reported to have wrongly crossed the mid-line of the road and after shifting to the right side, hit the truck coming from opposite direction. He further submits that since the driver of the Maruti Zen Car was required to ply the vehicle on the left side from the mid-line of the road and to maintain the direction of traveling on the left side but the same was reported to have wrongly shifted or traveled to the other side i.e. on the right side of the mid-line of the road, hitting the truck coming from the opposite direction, therefore, the driver of the truck cannot be solely made responsible for the rash and negligent driving in the present case. 10. He further submits that as per the M.T.O. Reports, both the vehicles stated to have suffered damages on the right side portions. He further submits that even as per the statements of the eye-witnesses, namely, P.W. 2 - Somnath and P.W. 3 -Girdhari Lal, there was head on collision between both the vehicles, in which Jasvinder Singh expired on account of injuries sustained by him in the said accident. He further submits that even as per the statements of the eye-witnesses, namely, P.W. 2 - Somnath and P.W. 3 -Girdhari Lal, there was head on collision between both the vehicles, in which Jasvinder Singh expired on account of injuries sustained by him in the said accident. In view of the details mentioned in the site plan, M.T.O. Reports and the statements of two eye-witnesses, learned counsel for the Insurance Company submits that the Tribunal has grossly erred in fastening the liability of rash and negligent driving solely on the driver of the subject truck, whereas, in the present case, it is more than clear that it was a head on collision, therefore, the driver of the Maruti Zen car i.e. deceased was equally liable for the accident and the driver of the subject truck alone cannot be fastened with the liability of rash and negligent driving in the present case. 11. Learned counsel has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Bijoy Kumar Dugar Vs. Bidya Dhar Dutta & ors. reported in MACD 2006 (1) (SC) 371 wherein it has been held that when the vehicles had a head on collision, the driver of both the vehicles involved in the accident should be held equally responsible for negligent driving. Thus, learned counsel submits that the award of compensation passed by the Tribunal in the present case is required to be reduced considerably by equally fastening the liability on the driver of the Maruti Zen car on account of contributory negligence in the accident. 12. He further submits that while calculating the compensation in the present case, the Tribunal has not considered the fact that the deceased had taken the land on rent for agricultural purpose on a sum of Rs. 13,000/- per bigha, whereas, the claimant's land is stated to be rented out for a meager sum of Rs. 2,000/- per bigha. He, therefore, submits that there is huge difference between the amount for renting out the property by the claimants for agricultural purpose. He, therefore, submits that the amount received towards the rent of the agricultural land should be considerably increased in the present case. 13. 2,000/- per bigha. He, therefore, submits that there is huge difference between the amount for renting out the property by the claimants for agricultural purpose. He, therefore, submits that the amount received towards the rent of the agricultural land should be considerably increased in the present case. 13. He further contends that the deceased was 32 years of age and an amount @ 50% of the income of the deceased has been awarded towards the loss of income on account of future prospects of the deceased in the present case. He further submits that in view of the judgment rendered by the Hon'ble Supreme Court in the case of National Insurance Company Limited V/s Pranay Sethi & ors. reported in 2017/ACJ/2700, the amount to the extent of 40% is only required to be awarded towards loss of income on account of future prospects of the deceased. 14. Learned counsel further contends that an amount towards non-pecuniary loss has been awarded by the Tribunal to the tune of Rs. 2,25,000/-, whereas, the same should have been awarded only to the tune of Rs. 1,90,000/- in light of the judgment of the Hon'ble Supreme Court in the cases of Pranay Sethi (supra) as well as New India Insurance Company Ltd. V/s Somwati and Ors. reported in (2020) 9 SCC 644 . He, therefore, submits that the appeal of the appellant - Insurance Company may be allowed and the award of compensation in the present case may be reduced while recomputing the same in light of the judgments rendered by the Hon'ble Supreme Court in the cases of Pranay Sethi (supra) and Somwati (supra). 15. Per contra, learned counsel for the claimants-respondents submits that the Tribunal's findings on the Issue Nos. 1 and 2 are based on cogent evidence and appreciation of material as well as evident brought before it. He further submits that the driver of the subject truck was liable for driving the truck in rash and negligent manner and therefore, no error was committed by the Tribunal while holding the driver of the subject truck solely responsible for rash and negligent driving resulting into the accident in the present case. He further submits that the driver of the subject truck was liable for driving the truck in rash and negligent manner and therefore, no error was committed by the Tribunal while holding the driver of the subject truck solely responsible for rash and negligent driving resulting into the accident in the present case. He further submits that it has been stated in the testimony of A.W. 2 - Somnath and P.W. 3 - Girdhari Lal, the eye-witnesses, that the truck was being driven rashly and negligent and thereby, caused the accident in the present case, in which Jasvinder Singh died on the spot. He further submits that although, the police submitted the negative final report in the criminal case but on a protest petition being filed, the cognizance of offences under Sections 279 and 304-A of I.P.C. was taken against the driver of the subject truck. Thus, in the totality of facts and circumstances and taking into considerations the statements of the eye-witnesses, M.T.O. Reports and the site inspection report prepared by the investigation agency, the Tribunal has rightly fastened the entire liability on the driver of the subject truck in causing the accident in this case. Learned counsel further submits that the amount of compensation assessed by the Tribunal in the present case is on the lower side as it was brought before the Tribunal by placing the requisite slips of renting out the land by the claimants for the agricultural purpose showing the income derived in the present case. The Tribunal was, therefore, not right in discarding those receipts on the ground that they were written on plain papers. Therefore, the Tribunal has not correctly assessed the income of the deceased in the present case, which is required to be enhanced suitably. 16. Learned counsel for the claimants-respondents while replying to the arguments advanced by the learned counsel for the appellant-Insurance Company submits that the different rates are very much applicable in the area to which the claimants belong as the deceased took the agricultural land on rent, which was irrigated and therefore, the amount for renting the land by the claimants for agricultural purpose cannot be disputed. He further submits that the land, which is rented by the family of the deceased i.e. claimants hatched only Rs. He further submits that the land, which is rented by the family of the deceased i.e. claimants hatched only Rs. 2,000/- per bigha on account of the fact that the same is not irrigated as the said land is barren, therefore, the Tribunal has rightly computed the reduction of Rs. 2,000/- towards renting out the land by the claimants. So far as other arguments advanced by the learned counsel for the appellant-Insurance Company are concerned, learned counsel for the claimants-respondents is not in a position to dispute the fact of recomputation of award in light of the judgments rendered by the Hon'ble Supreme Court in the case of Somwati (supra) and Pranay Sethi (supra). 17. I have considered the rival submissions and have gone through the judgment and award impugned as well as relevant record of the case. 18. The findings of fact recorded by the Tribunal on Issue Nos. 1 and 2 are based on the statements of the eye-witnesses, namely, A.W. 2 - Somnath and A.W. 3 - Girdhari Lal. If the site plan prepared by the police, M.T.O. Reports of the two vehicles involved in the accident and the statements of eye-witnesses are mainly taken into consideration then, the fact which revealed in the present case is that the Maruti Zen car was driven by the deceased Jasvinder Singh while traveling from Suratgarh to Sri Ganganagar which was required to be driven in the left side from the mid-line of the road. However, in the present case, as per the site plan prepared by the investigation agency, the accident was taken place on the right side of the Maruti Zen Car at a slight distance from the mid line i.e. on the other side of the road. The fact that the subject truck which was coming from the opposite direction was required to be driven on the left side of the road or at least, on the left side of the mid line. A perusal of the site plan shows that the accident in the present case took place slightly on the right side of the mid-line, in the direction, in which the Maruti car was being driven. Thus, it can be safely presumed that at least, the driver of the subject truck was not solely responsible for the accident in this case. A perusal of the site plan shows that the accident in the present case took place slightly on the right side of the mid-line, in the direction, in which the Maruti car was being driven. Thus, it can be safely presumed that at least, the driver of the subject truck was not solely responsible for the accident in this case. Both the vehicles have suffered damages on the right sides which shows that there was some degree of truth in the arguments of the learned counsel for the appellant - Insurance Company that it can be termed as an accident with head on collision. The eye-witnesses, namely, A.W. 2 - Somnath and A.W. 3 - Girdhari Lal also to a larger extent stated in their testimony that the accident occurred when the truck was coming from the opposite direction, with the Maruti Zen car driven by the deceased while traveling from Suratgarh to Sri Ganganagar, from the opposite side. Thus, it can be safely presumed that it was a case of head on collision and both the drivers i.e. deceased Jasvinder Singh and the driver of the truck, were negligent in rashly and negligently driving their vehicles resulting into the head on collision. 19. In the case of Bijoy Kumar Dugar (supra), the Hon'ble Supreme Court in Para 12 of the judgment has held as under :- "Adverting to the next contention of the claimants, no doubt the High Court has not dealt with the point in issue. However, we have noticed the reasoning and finding of the MACT recorded under Issue No.2. It is the evidence of Rajesh Kumar Gupta-P.W.2 who was travelling in the Maruti car along with the deceased Raj Kumar Dugar on the day of the accident that he also suffered some injuries in the said accident. He stated that while coming from Digboif the Maruti car being driven by the deceased met with an accident at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head- on collision. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head- on collision. The MACT has not accepted the evidence of P.W. 2 to prove that the driver of the offending bus was driving the vehicle in abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as P. W. 2 wanted to believe the Court, it was, but natural, as a prudent man for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus from a long distance coming from the opposite direction. It was head- on collision in which both the vehicles were damaged and unfortunately, Raj Kumar Dugar died on the spot. The MACT, in our view, has rightly observed that had it been the knocking on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing reason to disagree with the well-reasoned order of the MACT on this point. The MACT has awarded interest at the rate of 10% perannum on the amount of compensation from the date of filing of the claim application till the date of payment. It is a discretionary relief granted by the MACT and, in our view, the discretion exercised by the MACT cannot be said to be inadequate and inappropriate." 20. Thus, in view of the discussions made above, it is held that the Tribunal was not correct in holding the driver of the subject truck as solely responsible for rash and negligent driving resulting into the accident in the present case, therefore, this Court feels that on account of the contributory negligence of both the vehicles involved in the present case, the driver of the subject truck can be made responsible for satisfying the award only to the extent of 50%. Thus, the liability to pay the entire amount fastened on the insured vehicle by the Tribunal is reduced from 100% to 50% on account of the fact that the driver of the Maruti Zen car was a contributor to the extent of 50% in the accident in the present case which occurred on 20.06.2010. Accordingly, the findings recorded by the Tribunal with respect to the Issue Nos. 1 and 2 are modified to the above extent. 21. So far as the computation of amount of compensation in the present case is concerned, the same is required to be done in view of the judgments rendered by the Hon'ble Supreme Court in the cases of Pranay Sethi (supra) and Somwati (supra). The Tribunal in the present case while dealing with Issue No. 4 came to the conclusion that on the basis of the slips produced before it with respect to the income derived from agricultural work by the deceased, the annual income of the deceased in the year 2009 was Rs. 4,24,494/-. The Tribunal has not taken into account the slips written on the plain papers on the ground that the same did not bear any signature and were not written on letter pad. The credibility of those slips has not been proved beyond doubt. The Tribunal has also deducted the amount of Rs. 2,000/- per bigha towards the amount received by the claimants on account of renting out 48 big has land from the total income of the deceased and thus, has taken into consideration Rs. 2,54,696/- to be the annual income, which was the income of the deceased Jasvinder Singh, had he been alive. The Tribunal has further deducted Rs. 1,20,000/- from this amount as the rental income continues to be obtained by the family of the deceased even today. The amount so calculated by the Tribunal does not suffer from any infirmity as the rental income of Rs. 2,000/- per bigha drived to the claimants has been proved and the rent of the land taken by the deceased @ Rs. 13,000/- per bigha has also been proved before the Tribunal. So far as the rental income of Rs. The amount so calculated by the Tribunal does not suffer from any infirmity as the rental income of Rs. 2,000/- per bigha drived to the claimants has been proved and the rent of the land taken by the deceased @ Rs. 13,000/- per bigha has also been proved before the Tribunal. So far as the rental income of Rs. 2,000/- per bigha is concerned, the same could be on the lower side because the land used can be non-irrigated and barren land, whereas, the rent of the land, on which agricultural work is done and the same is irrigated, it can fetch Rs. 13,000/- per bigha. Thus, the net loss of income of the deceased was computed to the tune of Rs. 1,34,696/- on account of death of the deceased Jasvinder Singh in the accident occurred in the present case. The multiplier of 16 has been applied by the Tribunal, which is absolutely correct in light of the judgment rendered by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. V/s Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 12. Since there are four dependents of the deceased in the present case, therefore, l/4th deduction towards personal expenditures of the deceased has rightly been applied by the Tribunal in the present case. 22. So far as the award of 50% future prospects of the deceased is concerned, the same appears to be on the higher side and is required to be reduced to 40% in light of the judgment rendered by the Hon'ble Supreme Court in the case of Pranay Sethi (supra). Thus, the amount towards the future prospects of the deceased will be Rs. 53,600/- per annum. Thus, the recomputation of award in the present case in light of the judgments rendered by the Hon'ble Supreme Court in the cases of Pranay Sethi (supra) and Somwati (supra) is as under :- For future prospects:- 40% of Rs. 1,34,000/- (Annual Income of deceased) Rs. 53,600/- Rs. 1,34,000/- + Rs. 53,600/- Rs. 1,87,600/- Amount to be deducted as spent on himself (Rs. 1,87,600/- - l/4th) (Rs. 1,87,600/- - 46,900/-) Rs. 1,40,700/- The age of deceased was 32 years, therefore, a multiplier of 16 will be applied. (I) Compensation due to death Rs. 1,40,700/-x 16 Rs. 22,51,200/- (II) For the Loss of Estate For Funeral Rs. 15,000/- (III) Expenses Rs. 53,600/- Rs. 1,87,600/- Amount to be deducted as spent on himself (Rs. 1,87,600/- - l/4th) (Rs. 1,87,600/- - 46,900/-) Rs. 1,40,700/- The age of deceased was 32 years, therefore, a multiplier of 16 will be applied. (I) Compensation due to death Rs. 1,40,700/-x 16 Rs. 22,51,200/- (II) For the Loss of Estate For Funeral Rs. 15,000/- (III) Expenses Rs. 15,000/- (IV) For the loss of consortium (4 dependents) Rs. 1,60,000/- TOTAL Rs. 24,41,200/- 50% deduction on account of contributory negligency Rs. 12,20,600/- Enhanced amount Rs. 12,20,600/- 23. At this stage, learned counsel for the appellant - Insurance company submits that 40% of the awarded amount as computed by the Tribunal vide Judgment and Award dated 15.02.2017 has already been deposited. 24. Thus, in view of the discussions made above, the present appeals are disposed of with a direction that since it has been held that the driver of the Maruti Zen car was also contributory negligent in the accident to the tune of 50%, therefore, the award of compensation is required to be reduced by 50% while fastening the liability to the tune of 50% of awarded sum on the insurance company. Since the appellant - Insurance Company in CMA No. 1367/2017 has already deposited 40% amount of award passed by the Tribunal, therefore, the balance amount as per recomputation shall be deposited by the Insurance Company within a period of six weeks from today. The said amount shall carry the interest @ 7.5% per annum from the date of filing of the claim petition till the actual payment is made.