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2022 DIGILAW 1001 (RAJ)

Bharosi Bai v. Radhey Shyam

2022-03-29

BIRENDRA KUMAR

body2022
JUDGMENT Birendra Kumar, J. - The appellants are not satisfied with the quantum of compensation decided by the Motor Accident Claims Tribunal No. 1, Bundi in Motor Accident Claim No. 673/2014 by award dated 7.2.2019, hence this appeal under Section 173 of the Motor Vehicles Act. 2. The claimants had claimed Rs. 71,90,000/- for death of Tejpal, aged about 29 years, the husband of claimant No. 1 and father of claimant Nos. 2 and 3 as well as son of claimant Nos. 4 and 5. The learned Tribunal awarded Rs. 6,84,000/- along with interest @ 7.5% from the date of institution of the claim case. The case and claim of the claimants is that on 12.7.2014 a tractor bearing Registration RJ-26-RA-2470 was parked on the mid of the road without any light or indicator of its identification. Tejpal was coming on a motor-cycle and hit the tractor leading to his death, during the course of treatment. At the time of death Tejpal was engaged in agriculture work as well as dairy farming and was earning Rs. 10,000/- per month. 3. The claimant examined two witnesses AW/1 Bharosi Bai, wife of the deceased. She has deposed about the age and income of the deceased and the source of income. The witness has not been cross-examined on the age and source of income. AW/2 Badri Lal is the eye-witness of the occurrence. He has specifically stated that he was on another motor cycle and saw that on the mid of the road, the tractor was parked without any light and indicator in function. As such due to negligence of the tractor in the darkness of night, the motor cycle of Tejpal dashed against it which caused death of Tejpal. 4. The learned Tribunal did not accept the claim of income of the deceased and took income of a daily wager as multiplicand. The Tribunal awarded 40% for future prospects of the victim considering the judgment of the Hon'ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and Others, reported in (2017) 16 SCC 680 . 4. The learned Tribunal did not accept the claim of income of the deceased and took income of a daily wager as multiplicand. The Tribunal awarded 40% for future prospects of the victim considering the judgment of the Hon'ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and Others, reported in (2017) 16 SCC 680 . The Tribunal accepted the age of the deceased based on entry in voter ID Card issued by the Election Commission of India wherein age of the deceased was entered as 21 years on 1.1.2003 as such the Tribunal held that the deceased was aged about 32 years at the time of death and as such multiplier of 16 is applicable in view of the judgment of the Supreme Court in Sarla Verma & Ors. v. Delhi Transport Corp. & Anr. reported in (2009) 6 SCC 121 , affirmed in Pranay Sethi's case. The Tribunal allowed 1/4th deduction for personal expenses of the deceased considering the number of dependents on him. Besides the aforesaid the Tribunal deduced 30% for contributory negligence of the deceased. Rs. 70,000/- was allowed under conventional head for funeral expenses and loss of consortium. 5. Ms. Barkha Jain appearing for Mr. Rohit Khandelwal, learned counsel for the appellants contends that the Tribunal was wrong in not accepting the evidence on record regarding the income of the deceased and on surmises and conjectures accepted income of a daily wager as Rs. 4,500/- per month in respect of the deceased. Since there was lack of direct evidence of date of birth of the deceased, the Tribunal should have accepted the statements of claimants. Deduction of 1/4th is not justified. Moreover, this was not a case of contributory negligence as no prudent man is expected to foresee parking of any vehicle on the mid of the road without any indicator or light or any other sign of easy identification. Normally in the night on a smooth road, the people drives to the best of their speed. Reliance has been placed on two judges bench judgment of the Hon'ble Supreme Court in Jumani Begum v. Ram Narayan & Ors. reported in 2020 (5) SCC 807 . 6. To the contrary, learned counsel appearing for the Insurance Company Mr. N.L. Verma contends that in the case of Raj Rani & Ors. v. Oriental Insurance Co. Ltd. and Ors. Reliance has been placed on two judges bench judgment of the Hon'ble Supreme Court in Jumani Begum v. Ram Narayan & Ors. reported in 2020 (5) SCC 807 . 6. To the contrary, learned counsel appearing for the Insurance Company Mr. N.L. Verma contends that in the case of Raj Rani & Ors. v. Oriental Insurance Co. Ltd. and Ors. reported in 2009 (4) TAC 385 (SC), the Hon'ble Supreme Court in similar circumstances accepted a case of 50% negligence of the deceased whose vehicle has dashed from behind on a vehicle parked on the mid of the road. Since the documentary evidence available on record and produced by the claimants reveal that the deceased was aged about 32 years on the date of accident, appropriate multiplier was of 16 which has been applied by the Tribunal. Since there was no evidence of income of the deceased, the tribunal was wholly justified in accepting minimum wages income of the deceased. 7. Uncontroverted evidence on record is that the deceased was earning Rs. 10,000/- per month from agriculture as well as dairy business. The claim of the income of Rs. 10,000/- is not exorbitant and unreasonable one, therefore, the Tribunal ought not have discarded the evidence on the income of the deceased. Moreover, documentary evidence of agriculture income or income from dairy business may not be available with everyone unless the income is taxable income. 8. The issue of contributory negligence depends upon the facts of individual case. In Jumani Begum (supra), the deceased was riding on a motor cycle collided against truck trolley parked on the road at night without any reflectors. The Hon'ble Supreme Court held that there was no reason for the Motor Accident Claims Tribunal to proceed on the basis of conjectures in arriving at finding of contributory negligence. The eye witness does not say that the deceased was negligent to any extent. In normal circumstances, no one is expected to park its vehicle on the mid of the road and if due to mechanical failure, the vehicle could not be removed immediately from the mid of the road, it is expected from the drivers to put reflector/indicator to guide other moving vehicles. Therefore, I am persuaded to accept the view expressed in Jumani Begum's case and set aside the finding of the learned Tribunal that there was 30% negligence of the deceased in the accident. 9. Therefore, I am persuaded to accept the view expressed in Jumani Begum's case and set aside the finding of the learned Tribunal that there was 30% negligence of the deceased in the accident. 9. Since appropriate multiplier has been adopted by the Tribunal and 40% has been added in the multiplicand for future prospects in view of the judgment of the Hon'ble Supreme Court in Pranay Sethi (supra), the same does not require any interference. The Tribunal erred in not allowing Rs. 40,000/- for each of the claimants for loss of consortium. In Magma General Insurance Co. Ltd. v. Nanu Ram and Ors. reported in (2018) 18 SCC 130 , the Hon'ble Supreme Court held that loss of consortium includes espousal consortium, filial consortium and parental consortium. The view was followed in New India Assurance Co. v. Somwati reported in (2020) 9 SCC 644 . 10. For the aforesaid reasons, the just compensation to be awarded to the dependents of the motor accident victim in the present case would be Rs. 10,000+4,000(40% for future prospects). Out of 14,000/-, 1/4th is deductible for personal expenses of the deceased, the remaining amount of Rs. 10,500/- has to be multiplied with 12 to get yearly loss and further by multiplier of 16 taking into consideration the age of the deceased. Thus, the compensation is calculated at Rs. 20,16,000/-. Besides, the aforesaid all the 5 claimants are entitled for Rs. 40,000/- each total Rs. Two lacs for loss of consortium and Rs. 15,000/- for funeral expenses. Thus, the total payable compensation would be Rs. 22,31,000/- along with interest awarded by the Tribunal, as this Court is not inclined to interfere with the quantum of interest. 11. The respondent-Insurance Company is directed to pay this amount minus already paid amount within a period of two months, failing which 12% interest would be payable till the date of final payment. 12. The award of the Tribunal is partially modified and this appeal is allowed to that extent.