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2023 DIGILAW 1788 (ALL)

Rajesh Devi v. M. R. Walia

2023-07-25

SARAL SRIVASTAVA

body2023
JUDGMENT Saral Srivastava, J. Heard learned counsel for the appellants and learned counsel for the respondents. 2. The present appeal has been filed against the award dated 07.12.2007 passed by Motor Accident Claims Tribunal, Agra in MACP No.699 of 2006, whereby the tribunal has awarded a compensation of Rs.89,500/- alongwith 6% interest for the death of one Ajaypal Singh in an accident on 18.07.2006 with truck No.UP14R/2927. 3. Challenging the award, learned counsel for the appellants has contended that the accident had taken place between Moped Hero Puch No.UP80J/7500 driven by one Ajaypal Singh and truck No.UP14R/2927. It is submitted that it was a specific case of the claimant-appellant that while the deceased was proceeding to cross the crossing, he was hit by truck No.UP14R/2927 driven by its driver rashly and negligently. It is also submitted that widow and son of the deceased were also riding on Moped and suffered injuries in the accident. It is submitted that widow and son of the deceased Smt. Rajesh Devi and Amit were produced as witnesses who deposed categorically that the accident had taken place due to rash and negligent driving of driver of truck and no evidence in rebuttal to the testimony of PW1 and PW 2 was produced by the respondents to rebut the testimony of PW 1 and PW 2 that the deceased was also negligent in the accident. It is further submitted that the tribunal in concluding that the deceased was also negligent in the accident placed reliance upon the site plan of the accident. It is submitted that the site plan of the accident cannot be relied upon without the same having been proved in accordance with law to conclude the negligence of the deceased in the accident more so, when the witnesses appeared before the tribunal and deposed that the accident was result of negligence of driver of truck and there was no evidence rebutting the testimony of PW 1 and PW 2. Accordingly, it is submitted that the finding of the tribunal on the issue of negligence holding 50% negligence of the deceased is not sustainable. 4. It is submitted that the compensation awarded by the tribunal is not adequate. Learned counsel for the claimants-appellants has submited that the accident had taken place on 18.07.2006 and the tribunal has erred in computing the compensation treating the income of the deceased to be Rs.15,000 per annum. 4. It is submitted that the compensation awarded by the tribunal is not adequate. Learned counsel for the claimants-appellants has submited that the accident had taken place on 18.07.2006 and the tribunal has erred in computing the compensation treating the income of the deceased to be Rs.15,000 per annum. Accordingly, it is submitted that tribunal should have taken Rs.36,000/- per annum as income of the deceased for computing the compensation in view of the judgement of Apex Court in the case of Laxmi Devi and Others v. Mohammad Tabbar and Another, 2008 AICC 915 (SC). It is further submitted that no amount towards future prospect has been awarded by the tribunal whereas, considering the age of the deceased, the claimants/appellants are entitled to 40% towards future prospect in view of the judgement of Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and Others 2017 (16) SCC 680 . It is submitted that Rs.9,500/- towards non-pecuniary damages awarded by the tribunal is on lower side whereas claimants/appellants are entitled to Rs.70,000/- in view of the judgement of Apex Court in the case of Pranay Sethi (supra). Lastly, it is contended that there were four dependants upon the deceased, therefore, considering the judgement of the Apex Court in the case of Sarla Verma and others v. Delhi Transport Corporation and others 2009 (6) SCC 121 , the tribunal should have deducted 1/4th towards personal expenses of the deceased instead of 1/3rd. 5. Per contra, learned counsel for the respondents has contended that the tribunal has given elaborate reasons in placing reliance upon the site plan of the accident to conclude that there was 50% negligence of the deceased in the accident and as such, it is contended that the finding of the tribunal on the issue of contributory negligence is a finding of fact based upon proper appreciation of evidence on record and therefore, is not liable to be interfered with by this Court in its appellate jurisdiction. It is submitted that the compensation awarded by the tribunal is just and proper and does not call for any interference by this Court. 6. Having heard learned counsel for the parties and perused the record. 7. The Court on perusal of the record finds that the accident had taken place between Moped Hero Puch No.UP80J/7500 driven by the deceased and the truck No.UP14R/2927. 6. Having heard learned counsel for the parties and perused the record. 7. The Court on perusal of the record finds that the accident had taken place between Moped Hero Puch No.UP80J/7500 driven by the deceased and the truck No.UP14R/2927. The accident happened when the deceased was on the way to crossing and he was hit by truck. The witnesses of the accident PW 1 and PW 2 who also suffered injuries in the accident appeared before the tribunal and deposed that the accident had taken place due to rash and negligent driving of driver of the truck. The respondents did not lead any evidence in rebuttal to the testimony of PW 1 and PW 2. The tribunal in concluding that there was 50% negligence of the deceased in the accident placed reliance upon the site plan of the accident in which it is shown that the deceased was coming from the side lane to the main road and the truck was also moving on the main road. The tribunal held that as the deceased was coming from the side lane to main road, therefore, he should have taken precaution in approaching the main road from the side lane and the manner in which the accident had taken place reflects that there was some negligence of the deceased in the accident. This Court is of the view that the finding of the tribunal on the issue of negligence solely on the basis of site plan of the accident is not sustainable unless the correctness of the site plan has been proved in accordance with law. It is pertinent to note that the claimant-appellant had produced PW 1 and PW 2 who were eye witnesses of the accident and categorically deposed that the accident was result of rash and negligent driving of driver of truck, and in absence of any evidence led by the respondent rebutting the testimony of PW 1 and PW 2, this Court is the opinion that the tribunal has erred in law in ignoring unrebutted testimony of PW 1 and PW 2 in concluding that there was 50% negligence of the deceased in the accident. In such view of the fact, the finding of the tribunal holding 50% negligence of the deceased in the accident is set aside. Consequently, it is held that the accident was the result of sole negligence of driver of the truck. 8. In such view of the fact, the finding of the tribunal holding 50% negligence of the deceased in the accident is set aside. Consequently, it is held that the accident was the result of sole negligence of driver of the truck. 8. The Apex Court in the case of Laxmi Devi and Others (supra) has held the notional income to be Rs.3,000/- per month i.e. Rs.36,000/- per annum and thus, accepting the submission of learned counsel for the claimants/appellants in view of the judgement of Apex Court in the case of Laxmi Devi (supra), it is provided that the income of the deceased should be taken to be Rs.36,000/- per annum for the purpose of computation of compensation. 9. The submission of learned counsel for the appellants/claimants in respect of future prospect and grant of non-pecuniary expenses has also got force in view of the judgement of Apex Court in the case of Pranay Sethi (supra) and thus, following the aforesaid judgement of Apex Court, the claimants/appellants are entitled to 40% towards future prospect considering the age of the deceased, and further the non-pecuniary damages awarded by the tribunal is enhanced from Rs.9500/- to Rs.70,000/-. 10. The submission of learned counsel for the claimants/appellants with regard to deduction of 1/4th towards personal expenses of the deceased in view of the judgement of Apex Court in the case of Sarla Verma (supra) has got substance. Thus, it is provided that 1/4th should be deducted towards personal expenses of the deceased instead of 1/3rd from the income of the deceased for computation of compensation. 11. It is also provided that enhanced amount of compensation shall carry 6% simple interest from the date of institution of claim petition till its payment. 12. For the reasons given above, the appeal is partly allowed and award of the tribunal is modified to the extent as indicated above. The insurance company is directed to pay the enhanced amount of compensation to the claimants/appellants within a period of three months. There shall be no order as to cost.