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2023 DIGILAW 135 (JK)

Daljit Singh v. Anju Jamwal

2023-04-06

PUNEET GUPTA

body2023
JUDGEMENT (Through Virtual Mode Srinagar) 1. The judgment shall dispose of the aforesaid appeals filed against the award dated 25.09.2009, passed by the learned Motor Accident Claims Tribunal, Jammu, whereby the Tribunal awarded amount of Rs. 8,70,060/- in favour of the claimants as per the share mentioned in the award. The Tribunal also awarded simple interest @ 7.5% per annum from the date of filing of claim petition till realization of the whole amount. 2. The liability has been fastened upon the said appellant being the owner of the offending vehicle. 3. The claimants have filed the cross-appeal seeking enhancement of the compensation awarded by the Tribunal. 4. Learned counsel appearing for the appellant-Daljit Singh has submitted that the Tribunal has grossly erred in holding the appellant-Daljit Singh liable for the accident though the deceased who was riding the motorcycle was himself negligent of the accident which took place on 21.06.2002. The Tribunal has not appreciated the evidence in its right perspective is the grouse of the appellant. Of course, the learned counsel has also submitted that in any case the amount awarded by the Tribunal is not just and is excessive one. 5. The learned counsel appearing for the claimants-respondents has submitted that there is no error in the award passed by the Tribunal and the Tribunal has rightly held the appellant liable for the accident which resulted into the death of Shiv Dev Singh. He pleads for more compensation by way of cross appeal. 6. The Tribunal framed four issues in the matter. Issue No. 1 reads as under:- "Whether an accident took place on 21.06.2002 near Kandiyal Colony Batala Punjab due to rash and negligent driving of offending Truck No. PAT-1080 in the hands of erring driver in which deceased-Shiv Dev Singh sustained fatal injuries? OPP" 7. The Tribunal discussed this issue in detail and held that the driver of the truck of which the appellant herein is the owner was negligent while driving the vehicle and rejected the evidence tendered by the appellant before the Tribunal. The perusal of the file reveals that Rajinder Singh had appeared as witness for the claimants and recorded gave his statement which relates to this issue. Hardeep Singh is the driver of the offending vehicle and has given his own statement in the case. Manjit Singh has also appeared as witness for the respondent therein. 8. The perusal of the file reveals that Rajinder Singh had appeared as witness for the claimants and recorded gave his statement which relates to this issue. Hardeep Singh is the driver of the offending vehicle and has given his own statement in the case. Manjit Singh has also appeared as witness for the respondent therein. 8. It may be mentioned herein that Hardeep Singh was driver of the vehicle Truck No. PAT-1080 whereas the deceased-Shiv Dev Singh is stated to be riding the motorcycle when the alleged accident took place on 21.06.2002 near Kandial Colony, Batala Punjab. The precise submission of the learned counsel for the appellant-owner is that it is highly improbable that the witness Rajinder Singh, who claims to be present on spot when the accident took place has neither visited the Police Station nor his statement was recorded by the police and is not witness in the challan which is produced against the driver Hardeep Singh. 9. The rash and negligent act of the driver of the offending vehicle is required to be proved by the claimants in the case in hand. As per the said witness Rajinder Singh he was also driving the vehicle (car) near to the victim vehicle when the accident took place. As per the witness the driver of the truck had hit the motorcycle while coming from behind the motorcycle with a high speed and thereafter ran away from the place of occurrence. The driver of the truck was rash and negligent in driving the vehicle which caused the accident. The witness has otherwise denied the suggestion of the respondents that the truck was stationary and motorcycle was being driven at high speed when the accident took place. Hardeep Singh driver of the truck has altogether denied the occurrence in a way as he has stated that he had parked his vehicle on one side of the road as his truck had developed some defect and he had gone to bring the mechanic. Manjit Singh has also deposed that the truck was stationary at the time of occurrence and one motorcyclist who came from the side of Amritsar and hit the truck. As per the witness there were two pillion riders also on the motor cycle. In cross-examination, the witness has reiterated that the truck was stationary at the time of accident. Manjit Singh has also deposed that the truck was stationary at the time of occurrence and one motorcyclist who came from the side of Amritsar and hit the truck. As per the witness there were two pillion riders also on the motor cycle. In cross-examination, the witness has reiterated that the truck was stationary at the time of accident. The Tribunal has disbelieved the statement of the driver of the truck on the ground that whereas in the objections filed to the claim petition he has stated that his truck was stationary and the motorcyclist hit from behind whereas in his statement before the Tribunal he has totally denied that any accident took place. The Tribunal has found the statement of Rajinder singh convincing one as compared to the statements given by the driver of the offending vehicle and Manjit Singh. 10. The court is of the view that the Tribunal has not erred in disbelieving the statement of the driver of the truck in view of the contradictory stand taken by him in his statement before the Tribunal and qua the reply he had filed to the claim petition. The witness of the claimants not visiting the police station after the accident or his statement being not recorded by the police cannot be the reason by itself for disbelieving the witness. While recording the finding on the issue the standard of proof as required in the criminal proceedings is not to be pressed into service in the claim petition filed under Motor Vehicle Act. The probability and not the strict proof of rash and negligent driving is required to be proved in the case under Motor Vehicle Act. 11. It is also brought on record that the challan had been presented against the driver of the vehicle (truck) before the court of Judicial Magistrate Ist Class, Batala and is not in dispute. The driver of the truck has confessed his guilt in the challan presented against him qua the accident in question. The driver of the truck was convicted on 11.02.2011 by the trial court. The driver of the truck made the confession after the award was passed by the Tribunal and therefore this aspect of course could not be the part of the findings of the Tribunal and is not relevant. 12. The court finds no fault in the finding of the Tribunal qua Issue no. 1. 13. The driver of the truck made the confession after the award was passed by the Tribunal and therefore this aspect of course could not be the part of the findings of the Tribunal and is not relevant. 12. The court finds no fault in the finding of the Tribunal qua Issue no. 1. 13. Issue no. 2 reads as under:- "If issue no. 1 is proved in affirmative whether petitioners are entitled to the compensation, if so to what amount and from whom? OPP" 14. The Tribunal has assessed the income of the deceased-Shiv Dev Singh as Rs. 7000/- per month as it held that there is no conclusive proof that the deceased was earning Rs. 15000/- per month as pleaded in the petition. As per the petition, the petitioner was working as contractor of PWD and Jammu Municipal Corporation. Except the statement of the wife of the deceased Anju Jamwal and also the statement of Rajinder Singh to the same effect, there is no documentary evidence on record which may persuade this court to hold that the deceased-Shiv Dev Singh was earning Rs. 15000/- per month as a contractor. 15. The Tribunal has assessed the income of the deceased as Rs. 7000/- per month while infusing guess work. The court is of the view that keeping in view the fact that the accident is of the year 2002 the Tribunal has wrongly assessed the income of the deceased as Rs. 7000/- per month. The income of the deceased at the time of accident could not be assessed more than Rs. 4000/- per month in any case. The Tribunal has erred on this count. The Tribunal has applied multiplier of 15 keeping in view the age of the deceased as 34 years at the time of accident though the multiplier should have been 16. The 1/3rd deduction on account of personal expenses of the deceased is required to be taken in the case in hand. The claimants are also held entitled to addition of 40% on account of future loss of income of the deceased as the deceased had no fixed income. The same is in consonance with the judgment reported in [1][ (2009) 6 SCC 121 ] titled 'National Insurance Company Limited v. Pranay Sethi & Ors.'. The petitioners are also entitled to Rs. The claimants are also held entitled to addition of 40% on account of future loss of income of the deceased as the deceased had no fixed income. The same is in consonance with the judgment reported in [1][ (2009) 6 SCC 121 ] titled 'National Insurance Company Limited v. Pranay Sethi & Ors.'. The petitioners are also entitled to Rs. 40,000/- each on account of consortium as per judgment reported in (2018) 18 SCC 130 titled [2]Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram & Ors'. The funeral expenses as given by the Tribunal to the tune of Rs. 15000/- need not be disturbed. The claimants/petitioners are also entitled to Rs. 15000/- on loss of estate. Thus, the claimants are held entitled to compensation under various heads as under:- 1. Loss of income : Rs. 48000/- per annum 2. Future income : 40% of 48000/- of income = 67200/- p.a. 3. Deduction : 1/3rd of Rs. 67,200/- (Rs. 22,400/- = 44800/- p.a. 4. Total income : Rs. 44,800/- X 16 = (7,16,800/-) 5. Consortium : Rs. 1,20,000/- (Rs. 40,000/- X 3) 6. Loss of estate : Rs. 15000/- 7. Funeral expenses : Rs. 15000/- Total : Rs. 8,66,800/- 16. The claimants are thus entitled to Rs. 8,66,800/- along with interest as awarded by the Tribunal. The amount of compensation assessed by this Court is in vicinity to the compensation assessed by the Tribunal. The court therefore does not find any reason to interfere in the amount assessed by the Tribunal for compensating the claimants. Thus, the corollary to the same is that the claimants are not held entitled to any compensation in excess of one granted by the Tribunal in the appeal file by them. In view of the above both the appeals stand dismissed. 17. Disposed of.