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2022 DIGILAW 2395 (RAJ)

Padma Rani v. Banna Ram

2022-09-08

ANOOP KUMAR DHAND

body2022
JUDGMENT Anoop Kumar Dhand, J. - The instant appeal has been preferred by the claimants-appellants (for short 'the appellants') under Section 173 of the Motor Vehicles Act, 1988 against the impugned judgment and award dated 22.12.2001 passed by the Court of Motor Accident Claims Tribunal, Tonk (Raj.) (for short 'the Tribunal') in MAC No. 257/2001 by which an amount of Rs. 7,91,000/- (including misc. heads) has been awarded as compensation. 2. Learned Tribunal after framing the issues, evaluating the evidence available on the record and after hearing the counsel for the parties, decided the claim petition of the appellants awarding compensation to the tune of Rs. 7,91,000/- under various heads in their favour. 3. Learned counsel for the appellants submits that while deciding issue No. 3 the Tribunal has recorded a finding that there was 30% contributory negligence on the part of the deceased. Counsel submits that as per the evidence produced on the record, the accident occurred due to sudden application of brakes by the driver of the trolla. Counsel submits that after investigation, charge sheet was submitted against the driver of the trolla and no witnesses on behalf of the driver of the trolla and owner of the vehicle were produced to prove the fact that the deceased was also equally liable for the accident. Counsel submits that without there being any evidence, the Tribunal has recorded such finding. In support of his contention, counsel has placed reliance on the judgment of Hon'ble Apex Court in the case of Yerramma and Ors. v. G. Krishanmurthy and another, reported in 2014 (4) TAC 337. 4. Counsel further submits that while assessing the income of the deceased as Rs. 10,000/- per month, a lump sum amount of Rs. 4,000/- has been deducted towards personal expenses of the deceased. Counsel submits that the theory of deduction of 1/3rd amount towards personal expenses should have been applied in the instant case. Counsel further submits that even under the conventional head, a petty amount of Rs. 50,000/- has only been awarded. He therefore, prays that the matter requires reconsideration by this Court. 5. Per contra, counsel for the respondent-Insurance Company submits that while deciding the claim petition of the claimants appellants, the Tribunal has correctly taken into consideration the factors while calculating the award in this case on the anvil of evidnece produced before it. 50,000/- has only been awarded. He therefore, prays that the matter requires reconsideration by this Court. 5. Per contra, counsel for the respondent-Insurance Company submits that while deciding the claim petition of the claimants appellants, the Tribunal has correctly taken into consideration the factors while calculating the award in this case on the anvil of evidnece produced before it. Thus, the judgment and award dated 22.12.2001 does not call for any interference by this Court. 6. Counsel for the respondents submits that the principle of res ipsa loquitur is applicable in the instant case. Counsel submits that perusal of the site plan Ex. 19 indicates that the deceased was also liable for contributory negligence because both the vehicles were running on the same side and the accident has occurred at the rear end of a trolla. Thus, the Tribunal has not committed any error in deciding the issue No. 3 in holding that there was 30 % contributory negligence on the part of the deceased. Counsel submits that the award passed by the Tribunal is just and proper, which needs no interference by this Court. 7. Heard. 8. Considered the submissions made by both the parties and perused the material available on record. 9. A perusal of the record indicates that while deciding issue No. 1, the Tribunal has placed reliance upon the site plan Ex. 19 and recorded a finding that both the vehicles were lying on the incident side and the accident has occurred in the night at about 11 P.M. and the motor cycle struck with trolla all of a sudden. This evidence has not come on record that why the driver of the trolla applied the brakes all of a sudden and the driver of the trolla has not appeared in the witness-box. This fact has also been recorded by the Tribunal that if the driver of the trolla appeared in the witness box, the situation could have been cleared on the record. The Tribunal has recorded this finding that it appears that the driver of the trolla has applied sudden brakes but the at same time the deceased has not stopped his motor cycle, hence the accident has occurred. The Tribunal has recorded this finding that it appears that the driver of the trolla has applied sudden brakes but the at same time the deceased has not stopped his motor cycle, hence the accident has occurred. On the basis of the findings, the Tribunal came on the conclusion that there was 70% contributory negligence on the part of the driver of the trolla and 30% contributory negligence on the part of the deceased. 10. The Hon'ble Apex Court in the case of Yerramma (Supra) has dealt with an identical situation in para Nos. 9 and 10 which reads as under: "9. After thorough consideration of the facts and legal evidence on record in the present case, we are of the view that the collision between the motor vehicles occurred when the respondent-Corporation bus was turning to its right side without showing the turn indicator to enter the bus depot. The driver of the offending vehicle of the respondent-Corporation bus was negligent by not giving the right turn indicator and causing the accident. The driver of the respondent-Corporation bus should have been aware of the fact that he was driving the heavy passenger motor vehicle, and that it was necessary for him to take extra care & caution of the other vehicles on the road while taking the turn to enter the depot. Had the driver of the offending vehicle taken sufficient caution and care, slowed down and allowed reasonable provision for other vehicles on the left side of the road to pass smoothly, the accident could have been averted. 10. Hence, we are of the view that the Tribunal and the High Court have erred in the apportionment of negligence at 25% on the part of the deceased and 75% on the part of the driver of the respondent-Corporation bus without evidence adduced in this regard by the respondent. But on the other hand, legal evidence produced on record by the appellants in this case would show that the accident was caused on account of the negligence on the part of the driver of the offending vehicle of the respondent-Corporation. Therefore, the erroneous finding recorded by the Tribunal & concurring with the same by the High Court on the question of contributory negligence of the deceased is liable to be set aside. Therefore, the erroneous finding recorded by the Tribunal & concurring with the same by the High Court on the question of contributory negligence of the deceased is liable to be set aside. Accordingly, we set aside the same as it is not only erroneous but contrary to law laid down by this Court in the case of Juju Kurivila (Supra)." 11. In absence of any evidence submitted in rebuttal by the driver, owner and Insurance Company of the vehicle, it cannot be believed that there was 30% contributory negligence on the part of the deceased. The Tribunal has recorded the above finding while deciding issue No. 1 only on the basis of the imagination, hence, the finding recorded by the Tribunal on issue No. 1 with regard to 30% negligence of the deceased, is quashed and set aside. While deciding issue No. 4 the Tribunal has determined the income of the deceased as Rs. 10,000/- and has deducted Rs. 4000/- towards personal expenses of the deceased. The aforesaid deduction has no base. In the instant case, the claimants were 2 in number, hence, the Tribunal should have deducted 1/3rd amount toward personal expenses of the deceased. Hence, the issue No. 4 stands modified to that extent. It appears that under the conventional head, a lump sum amount of Rs. 50,000/- has been awarded by the Tribunal while the claimants were entitled to get a lump sum amount of Rs. 70,000/- under this head in the light of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Ltd. v. Parnay Sethi and Ors. : (2017) 16 SCC 680 . 12. Thus, the award is recomputed as under:- Monthly income Rs.10,000/- Annual income Rs.10,000 x 12=1,20,000/- per annum Deduction 1/3 rd Rs. 1,20,000 - Rs.40,000/- = Rs. 80,000/- Multiplier to be applied 15 Rs. 80,000 x15=12,00,000/- Towards conventional heads Rs. 70,000/- Total amount awardable Rs. 12,00,000+Rs. 70,000/- =Rs. 12,70,000/- Less amount awarded by the Tribunal Rs. 12,70,000- Rs. 7,91,000/- =Rs. 4,79,000/- 13. Thus, the amount of Rs. 4,79,000/- is enhanced in the present case. The respondent-Insurance Company is directed to pay the enhanced amount of Rs. 4,79,000/- in addition to the amount already awarded by the Tribunal vide its judgment dated 22.12.2001 within a period of two months from the date of receipt of a certified copy of this judgment. 4,79,000/- 13. Thus, the amount of Rs. 4,79,000/- is enhanced in the present case. The respondent-Insurance Company is directed to pay the enhanced amount of Rs. 4,79,000/- in addition to the amount already awarded by the Tribunal vide its judgment dated 22.12.2001 within a period of two months from the date of receipt of a certified copy of this judgment. The enhanced amount shall carry interest @ 6 % per annum from the date of filing of the claim petition till the actual payment is made. 14. It is further ordered that out of the enhanced amount, the Tribunal shall disburse a sum of Rs. 50,000/- in the Saving Bank Account of the appellants and the balance amount of the enhanced compensation be invested in FDRs in any Nationalized Bank initially for a period of three years and interest accrued on the said amount shall be paid to the appellants on monthly basis. 15. The appeal is disposed of accordingly. 16. Pending application(s), if any, stand disposed of. 17. Record of the case be sent back to the concerned Tribunal forthwith.