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2024 DIGILAW 70 (RAJ)

Champa v. Narendra Singh

2024-01-10

BIRENDRA KUMAR

body2024
ORDER : Mr. Birendra Kumar, J. - The appellants are not satisfied with the quantum of compensation awarded by the Motor Accident Claim Tribunal in motor accident claim case No. 91/2002 which was decided alongwith other claim cases vide impugned award dated 12.07.2005. 2. A brief background of the case is that on 10.07.2001 several passengers were traveling on Jeep bearing registration No. RJ-12-C-1020 from Sangwara towards Dungarpur. Near village Mojadhani, Upli mini truck bearing registration No. GJ-18/T-3456 came rashly and negligent towards the jeep and dashed, causing death of five persons. The dependents of different victims of death filed separate claim cases. The present one is in respect of death of Hajaram who was husband of appellant No. 1 and son of appellant Nos. 2 and 3 as well as father of appellant No. 5. 3. It is made clear that appellant No. 4 who is brother of the deceased and was not dependent on the deceased rather he was dependent on his alive parents therefore appellant No. 4 was not entitled to any compensation. 4. The case of the appellants is that at the time of death, Hajaram was aged about 30 years and he was earning Rs. 4,000/- per month, as he was a mason. 5. Learned Tribunal accepted the age of the deceased and applied multiplier of 17. However in absence of any documentary evidence of proof of income adopted reduced income of Rs. 2,000/- per month. Since number of dependents were atleast four, the Tribunal wrongly deducted 1/3rd for personal expenses of the deceased which should have been 1/4th. The appellants were entitled to 40% of income of the victim for future prospect in view of the judgment passed in National Insurance Co. Ltd. v. Pranay Sethi (2017) 16 SCC 680 , however the Tribunal awarded reduced future prospect of 25%. Likewise, under the head of "loss of consortium" Tribunal awarded Rs. 10,000/- to the wife and Rs. 5,000/- to other claimants. 6. The Tribunal was of the view that the driver of the jeep was also negligent and had contributed to the accident therefore 50% liability was of the driver of the jeep. Since the driver, owner or insurer of the jeep were not parties to the proceeding, 50% of compensation was deducted by the Tribunal. The Tribunal had calculated Rs. 6. The Tribunal was of the view that the driver of the jeep was also negligent and had contributed to the accident therefore 50% liability was of the driver of the jeep. Since the driver, owner or insurer of the jeep were not parties to the proceeding, 50% of compensation was deducted by the Tribunal. The Tribunal had calculated Rs. 3,89,915/- out of which 50% of the same i.e. 1,94,958/- was ordered to be paid by the insurer of the truck who is respondent No. 3 herein with right to recovery. The right to recovery was allowed for the reason that driving licence of the driver of truck was found to be fake document. 7. Learned counsel for the appellants contend that there is overwhelming evidence of eye-witnesses of the incident to support that only driver of the truck was negligent and not the driver of the jeep. Inspite of that the Tribunal considered the site plan prepared by the police during investigation to come to contrary conclusion that since four dead bodies were found on the middle of the road, the truck was by the side of the road, the truck also got damaged and the jeep was carrying over-loaded passengers, it was a case of contributory negligence. According to learned counsel after accident, position and location of the vehicle involved in the accident does not remain the same nor the people travelling in the vehicle remain static. Learned Tribunal has not assigned any reason for disbelieving ocular testimony. Learned counsel for the appellants next contend that the Tribunal has wrongly calculated the compensation on its own whim and fancy. 8. Learned counsel for the insurer-respondent No. 3 contends that in view of the settled proposition of law relating to pay and recover, the impugned award regarding pay and recovery should be maintained especially when there is material on the record that the truck driver had no driving licence as such he had violated the terms of policy of insurance. Learned counsel next contends that under the head "loss to consortium" only Rs. 40,000/- is payable and that should be distributed for loss of consortium amongst different loosers and no separate Rs. 40,000/- is permissible in absence of any specific dictum in Pranay Sethi's case (supra) by the Constitution Bench. 9. Learned counsel next contends that under the head "loss to consortium" only Rs. 40,000/- is payable and that should be distributed for loss of consortium amongst different loosers and no separate Rs. 40,000/- is permissible in absence of any specific dictum in Pranay Sethi's case (supra) by the Constitution Bench. 9. Impugned award reveals that one of the claimant Champa was also travelling in the same vehicle and as PW-5 she specifically stated that the truck driver was negligent and not the jeep driver. PW-9 Nathu Lal also deposed that the truck driver was negligent at the time of accident. Likewise PW-8 Hari Lal stated that truck driver was rash and negligent at the time of accident. Learned Tribunal has not stated anything as to why these witnesses are not reliable rather the Tribunal relied on the circumstances appearing in the site plan of the incident and assumed that circumstances does not lie rather a man may lie. Evidently finding of the Tribunal suffers from error of record. In fact, evidence on the record is that truck driver was negligent hence it was not necessary to join the driver, owner and insurer of the jeep in the claim proceeding. Assuming that they should have been arrayed as party, the award made in favour of the appellants should not have been deducted nor bifurcated as appellants are entitled to recover from the insurer of any of the two tortfeasors as held by Hon'ble Supreme Court in Kamlesh and Ors. v. Atar Singh and Ors. reported in 2016 ACJ 1 . Therefore the entire liability to pay compensation goes to the respondents herein jointly and severally. Since the tribunal has directed respondent No. 3 National Insurance Company to pay and allowed to recover, this court is not inclined to interfere with the finding especially for the reason that driving licence of the truck driver was found to be fake document as such it was in violation of terms of the policy. 10. The claim of income of Rs. 4,000/- of a mason is not an exorbitant claim nor the aforesaid amount is taxable so that to ask anyone to maintain documentary record of the income. Therefore there was no reason for the Tribunal to decline the claim of income of deceased as Rs. 4,000/- per month. 10. The claim of income of Rs. 4,000/- of a mason is not an exorbitant claim nor the aforesaid amount is taxable so that to ask anyone to maintain documentary record of the income. Therefore there was no reason for the Tribunal to decline the claim of income of deceased as Rs. 4,000/- per month. Likewise considering the number of dependents, 1/4th should have been deducted for personal expenses and not 1/3rd. 40% of the income was required to be added considering the future prospect of the deceased as held in Pranay Sethi's case (supra). 11. Thus, the payable compensation is calculated as Rs. 4,000/- minus 1/4th for personal expenses. The amount comes to Rs. 3,000/- and 40% of Rs. 3,000/- i.e. Rs. 1200/- for future prospect. The total comes to Rs. 4200/- which is multiplied by 12 to get yearly multiplicand and again by multiplier of 17 considering the age of deceased. The calculation comes to 8,56,800/- Besides the aforesaid each of the four claimants are entitled to Rs. 40,000/- separately under the head of loss of spousal, filial and parental consortium. Besides the aforesaid, Rs. 30,000/- is payable for funeral expenses and loss to the estate. The total payable compensation is calculated as Rs. 10,46,800/-. The aforesaid amount shall be payable alongwith rate of interest decided by the Tribunal within two months by respondent No. 3 failing which enhanced interest may be ordered by the execution court. 12. This court does not find any merit in the submission of the learned counsel for the insurer respondent that in view of the judgment passed in Pranay Sethi's case (supra), the claimants are jointly entitled for Rs. 40,000/-. Separate award for loss of separate consortium was made by Hon'ble Supreme Court in Megma General Insurance CO. Ltd. v. Nanu Ram and Ors. (2018) 18 SCC 130 , United India Insurance Company Limited v. Satendra & Ors. reported in (2021) 11 SCC 780 and in Janabai & Ors. v. M/s. ICICI Insurance Company Limited, (2022) 10 SCC 512 . 13. With the aforesaid modification in the award, instant appeal stands allowed.