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2023 DIGILAW 608 (RAJ)

Nand Kishore Sharma v. Geeta Ram

2023-02-24

ASHUTOSH KUMAR

body2023
ORDER : (Ashutosh Kumar, J.) The present civil misc. appeal has been filed by the appellants-claimants under Section 173 of the Motor Vehicle Act, 1988 (for short, 'the Act of 1988'), against the judgment and award dated 16.01.2006 passed by the learned Additional District Judge (Fast Track) No.3, Tonk (hereinafter referred to as the 'Tribunal') in MAC Case No.920/2005, praying for enhancement of the compensation awarded by the learned Tribunal. 2. Brief facts of the case are that on 03.05.2004 at about 9 P.M. Shyam Babu, Vishnu Kumar and Manoj Kumar were standing on Kota-Jaipur National Highway near a petrol pump. At that time, the offending vehicle, a truck bearing no. RJ-14-1G-5764, came from Kota side in high speed. The driver of the truck was driving the truck negligently. The abovementioned persons who were standing on the road, tried to save themselves but since the truck was in high speed it ran them over. In the incident Vishnu Kumar died on the spot and Manoj sustained some injuries. On this, FIR No.75/2004 was registered and after investigation, a charge-sheet for the offences punishable under Sections 279, 337, 338, 304A IPC and 134/187 of the Act of 1988 was presented in the Court against Geeta Ram who was the driver of the offending vehicle. 3. Dependent of the deceased filed the claim petition bearing no.920/2005 for claiming compensation under Section 166 of the Act of 1988. In that claim petition, driver and owner of the offending vehicle were also made non-applicants. They did not file any reply to the claim petition and only Insurance Company contested the matter. The Tribunal decided the claim petition vide impugned order dated 16.01.2006. The total amount of Rs.62,250/- as compensation was awarded to the appellants, against which this appeal for enhancement of the compensation has been preferred. 4. The learned Tribunal in its judgment, was of the opinion that the deceased was also negligent in this case because he was standing on the National Highway at 9 P.M. Adopting this line of reasoning, the contributory negligence of the deceased was assessed to be 25% by the learned Tribunal. Since the deceased was a bachelor of about 28 years, the learned Tribunal applied the multiplier of 8, on the basis of average age of the parents of the deceased. 5. Since the deceased was a bachelor of about 28 years, the learned Tribunal applied the multiplier of 8, on the basis of average age of the parents of the deceased. 5. Learned counsel for the appellants have contended that the learned Tribunal has erred in assessing the contributory negligence of the deceased because the deceased was not at all negligent vis-a-vis the incident. It has also been contended that the learned Tribunal has erred in quantifying the income of the deceased. It is contended that, assessing the notional annual income of the deceased as Rs.15,000/-, based on second schedule of the Act of 1988 is erroneous. It has been averred that the deceased was a Pandit and was earning money by performing religious rituals. He is also said to have been working in a Tent House. It has been submitted by the appellants that, the income of the deceased should have been considered to be Rs.10,000/- P.M. The appellants pray that the appeal be allowed and compensation awarded by the Tribunal must be enhanced. 6. Learned counsel for the appellants has placed reliance upon the following judgments: 1. National Insurance Company Limited v. Pranay Sethi and Ors.: 2017(16) SCC 680 . 2. Janabai WD/O Dinkarrao Ghorpade & Ors. v. M/s I.C.I.C.I. Lambord Insurance Company Lt.: Civil Appeal (Arising out of SLP (Civil) No.21077 of 2019), dated 10.08.2022. 3. Rajwati @ Rajjo & Ors. v. United India Insurance Company Ltd. & Ors.: Civil Appeal No.8179 of 2022 (Arising out of Special Leave Petition (C) No.30754 of 2019), dated 09.12.2022. 7. On the other hand, learned counsel appearing on behalf of the Insurance Company has supported the award and judgment of the Tribunal and contends that there is no merit in this appeal so the same be dismissed. 8. An application was filed praying that the service of notice to the respondent nos.1 and 2 be dispensed with. The same was allowed and the service of notice to the respondent nos.1 and 2 was dispensed with. 9. Heard the learned counsel of both the parties and perused the record. 10. Learned Tribunal in the impugned judgment has observed that since the deceased was standing on National Highway No.12 at 9 p.m., he himself was negligent and that he had contributed to the accident. His contributory negligence was assessed to be 25% in the impugned judgment. 9. Heard the learned counsel of both the parties and perused the record. 10. Learned Tribunal in the impugned judgment has observed that since the deceased was standing on National Highway No.12 at 9 p.m., he himself was negligent and that he had contributed to the accident. His contributory negligence was assessed to be 25% in the impugned judgment. It is pertinent to mention here that on behalf of the driver of the offending vehicle, no reply was filed to the claim petition. No evidence on behalf of the respondents was produced to prove the fact of contributory negligence on the part of the deceased. Learned Tribunal on the basis of site plan Ex.3 has drawn the presumption of 25% contributory negligence of the deceased. When we see the site plan, it is evident that on Kota- Jaipur National Highway, the offending vehicle was coming from Kota and going to Jaipur. The deceased has been shown to be standing at the extreme side of the road which happens to be the wrong side for a vehicle coming from Kota and going to Jaipur. It is evident that the offending vehicle went extremely on the wrong side and ran over the deceased. The fact that the offending vehicle went on its wrong side and committed the accident has been mentioned in the site plan. Therefore, in the opinion of this Court, it is clear that the learned Tribunal has taken an erroneous view regarding the contributory negligence on the part of the deceased. 11. Learned Tribunal has held that the claimants have failed to prove the income of the deceased. The learned Tribunal, for the purpose of calculating the loss of dependency, has relied upon the second schedule of Section 163A of the Act of 1988. The learned Tribunal has taken into account Rs.15000/- per annum as the notional annual income of the deceased. Learned counsel for the appellants has contended that the learned Tribunal has erred in not believing the oral as well as documentary evidence produced to prove the income of the deceased and has thus made a very low estimate as to the annual income. 12. Learned counsel for the appellants has contended that the learned Tribunal has erred in not believing the oral as well as documentary evidence produced to prove the income of the deceased and has thus made a very low estimate as to the annual income. 12. In the opinion of this Court, if the income of the deceased, as alleged in the claim petition was not proved by the claimants, then in order to calculate the loss of dependency, the learned Tribunal should have considered the income of the deceased to be equivalent to the daily wages as applicable on the date of incident, instead of taking into account the annual notional income. Therefore, on this point also findings of the learned Tribunal is not sustainable. 13. In this case the date of incident is 03.05.2004. At that time daily wages of unskilled person was Rs.73/-. Treating the deceased as an unskilled person his wages comes to be Rs.73/- per day and Rs.2190/-P.M. This Court deems it proper to consider this income for the purpose of calculating the loss of dependency. In the abovementioned income, increment of 40% as to the future prospects, as per the direction given in Pranay Sethi's case is also to be made. Thus, total monthly income of the deceased comes out to be 2190+ 40% future prospects = Rs.3066/- per month for the purpose of calculating the loss of dependency. 14. In this case the learned Tribunal has applied the multiplier of 8 on the basis of average age of mother and father of the deceased. As per judgment of the Hon'ble Apex Court in National Insurance Company Limited v. Pranay Sethi and Ors., it is well settled that the multiplier is to be applied on the basis of the age of the deceased. In this case the age of the deceased is found to be 28 years. Therefore, as per judgment of Pranay Sethi (supra) the multiplier of 17 is applicable in this case. 15. From the above discussion, we find that the deceased was not negligent and did not contribute in the incident. Thus, no question of any deduction from compensation on the basis of contributory negligence arises. 16. Multiplier of 17 is to be applied in this case on the basis of the age of the deceased which is 28 years. 17. 15. From the above discussion, we find that the deceased was not negligent and did not contribute in the incident. Thus, no question of any deduction from compensation on the basis of contributory negligence arises. 16. Multiplier of 17 is to be applied in this case on the basis of the age of the deceased which is 28 years. 17. In conclusion to the above discussion it is held that the income of the deceased on the date of the incident was Rs.73/- per day i.e. Rs.2190/- P.M. Adding 40% under the head of future prospects, it comes out to be Rs.3066/-P.M. The deceased was a bachelor, therefore, 50% amount is to be deducted under the head of personal expenses of the deceased. Consequently, the net amount quantified as the of loss of dependency comes out to be Rs.1533/- P.M. Now, as discussed above, when applying the multiplier of 17, total amount quantified as the loss of dependency comes out to be rupees 1533x12x17 = Rs.3,12,732/-. The appellants are also entitled for Rs.70,000/- under the head of general and non-pecuniary damages as directed in the case of Pranay Sethi (supra). This damages under the head of 'general and non-pecuniary damages' has been directed to be increased 10% every three years. Therefore, claimants are entitled to Rs.77,000/- under the head of general and non-pecuniary damages. Thus, the total compensation to which the appellants are entitled to get comes out to be Rs.3,12,732+77,000=Rs.3,89,732/-. 18. For the aforesaid reasons, the appeal filed by the claimants is allowed. The impugned judgment passed by the learned Tribunal is modified in terms of the above discussion. The total amount receivable by the claimant is Rs.3,89,732/-. The Insurance Company is directed to deposit the enhanced amount of compensation alongwith interest @ 6% P.A. from the date of filing of the claim petition till its realization with the Tribunal within two months from today. The amount already paid by the insurance company in this case is to be adjusted.