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Phoom Kanwar & Others v/s Mahendra Singh & Others

    Civil Misc. Appeal No. 1550 of 2000

    Decided On, 22 September 2011

    At, High Court of Rajasthan


    For the Appellants: Hanuman Choudhary, Tarun Choudhary, Advocates. For the Respondents: R1, Kamal Gupta for Mahesh Gupta, Tripurari Sharma, Advocates.

Judgment Text

Mohammad Rafiq, J.

1. This appeal has been filed by claimant-appellants whose claim petition was dismissed by learned Tribunal vide order dated 24.3.1998. The claimants filed the claim petition before the Tribunal for award of compensation on account of death of Bhagwan Singh, husband of appellant No. 1 and father of appellants Nos. 2 to 5 and son of appellant Nos. 6 and 7.

2. Brief facts are that deceased Bhagwan Singh was driving a Bus No. RJ14/1158 of RSRTC boarded from Jaipur to Agra. Another Bus No. RRG-8586 driven by respondent No. 2 Sita Ram Choudhary was coming from opposite side towards Jaipur and hit the Bus driven by deceased Bhagwan Singh from front. The learned Tribunal held that deceased Bhagwan Singh was solely responsible for the accident because he is negligent and the negligence of the driver of the respondent-insurance company has not been proved, therefore, declined to grant any compensation.

3. Shri Tarun Choudhary, learned counsel for the appellants has argued that the learned Tribunal has not considered the evidence of eye witnesses PW-3 Sultan Singh and PW-4 Mahendra Singh, who clearly stated that the accident was caused due to rash and negligent driving of Bus by respondent No. 2 and has wrongly held the total negligence on the part

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of deceased and thereby dismissed the claim petition.

4. Shri Tarun Choudhary, learned counsel for the appellants argued that the conclusion arrived at by the learned Tribunal about the total negligence on the part of the deceased Bhagwan Singh was uncalled for. The vehicle hit from front right hand side near the seat of the driver, which has resulted into death of deceased. Learned counsel in support of his arguments relied on the judgement of Supreme Court in T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748 : 2008 (1) WLC (SC) Civil 744 Bijoy Kumar Dugar v. Bidyadhar Dutta & Ors., AIR 2006 SC 1255 : 2006 (1) WLC (SC) Civil 757 and Machindranath Kernath Kasar v. D.S. Mylarappa & Ors., 2008 ACJ 1964. It was argued that if at all the learned Tribunal was to hold that it was a case of total negligence on the part of the deceased Bhagwan Singh, alternatively at least an amount of compensation should have been deducted to the extent once he was held guilty of negligence proportionately.

5. Shri T.P. Sharma, learned counsel for the respondent opposed the appeal and submitted that as per the site plan, the total negligence of the deceased driver Bhagwan Singh himself is proved because the bus insured with the respondent insurance company was found on the correct side i.e. on left hand side of the road. Its tiers of both the sides are on kaccha road, which indicates that the driver had taken due precaution to even bring the bus down from the road so as to create more space for the vehicle coming from opposite side i.e. the vehicle that is being driven by deceased Bhagwan Singh. The site plan also indicates that 1/4th of the road which is 20-22 feet wide was lying vacant, after the bus of the deceased and thereafter a kaccha strip of 5 feet was also lying open. The learned Tribunal was therefore wholly justified in concluding that the driver of the vehicle insured with the respondent-insurance company was not negligent and that the sole negligence was that of the deceased Bhagwan Singh. Learned counsel argued that PW-1 Phoom Kanwar and PW-2 Pahar Singh respectively wife and father of the deceased driver, were not eye witnesses. PW-3 Sultan Singh and PW-4 Mahendra Singh have been planted as eye witnesses and their testimony does not inspire any confidence. They have not stood the scrutiny of the cross examination. Learned counsel in this connection referred to the discussion made by the learned Tribunal regarding these two witnesses. It was argued that the claimant-appellants did not deny before the Tribunal the documents filed by the non-claimants which include the final report by the police Ex.P9 in which the police also after investigation concluded that it was Bhagwan Singh alone, who was responsible for the accident and that respondent No. 2 was not in any manner held responsible for the accident. Learned counsel cited the judgement of Supreme Court in Oriental Insurance Co. Ltd. v. Premlata Shukla & Ors., 2007 ACJ 1928 : 2007 (2) WLC (SC) Civil 430 and the judgement in National Insurance Co. Ltd. v. Rattani & Ors., 2009 ACJ page 925 and argued that in those cases, it was held by the Supreme Court that when the police papers have been produced before the Tribunal and not denied by the parties, their contents can be looked into by the Tribunal. Learned counsel cited the judgement of Madras High Court in New India Assurance Company Ltd. v. Meenal & Ors., 1993 ACJ 522 in support of his arguments.

6. On hearing learned counsel for the parties and perused the material on record, I find that the fact that there was an element of negligence on the part of deceased driver Bhagwan Singh cannot be disputed on the facts of the case, whereas the vehicle driven by him was found to have hit the vehicle driven by respondent No. 2-RSRTC. The sole question that arises for consideration is whether it was a case of a total negligence on the part of Bhagwan Singh or can it be said to be a case of composite negligence. In this connection also, the police has filed FIR and submitted final report in favour of vehicle insured with respondent No. 2, but notwithstanding such conclusion arrived at by the police, this Court can on the basis of evidence and material on record arrived at its own conclusion to find out whether Tribunal was justified in holding it to be a case of total negligence on the part of deceased driver Bhagwan Singh. The sole basis on which the FIR and final report has been filed is the site plan in the matter. In the site plan, it is clearly indicated that there is a 5 feet kaccha strip on both sides of the road and width of the road is only 20-22 feet. The site plan shows that both the vehicles were found adjacent. In the site plan, it is stated that both vehicles hit each other from opposite directions on the side of driver seat. The front wheel of two vehicles beneath the driver seat were not found to have been attached to each other like a pair of wheels. It is therefore evident that while considering the width of a full fledged vehicle with both the vehicles actually there and also considering the width of the road, which is according to site plan is only 22 feets, the vehicle that was being driven by the deceased Bhagwan Singh and the opposite vehicle insured with the respondent insurance company were both practically on the road. Though the two tyres of the opposite vehicle were found on kaccha strip adjacent the road, which would mean that nearly about 2 feet road of the kaccha strip was occupied thereby. The rest part of the vehicle was also on the road. What, therefore, at the maximum, can be inferred is that either the deceased was driving the vehicle merely on the road or the collusion of two vehicles taken place while the deceased was trying to overtake the vehicle. This is because if the width of the road is only 22 feet, the middle of the width is only 11 feet and even after the vehicle of the deceased hit the vehicle of respondent No. 2 and both were found stationed adjacent to each other still thereafter, 1/4th of the road on the other side was lying open i.e. nearly about 5 to 6 feet. It cannot therefore be concluded that the total negligence was that of the vehicle driven by deceased Bhagwan Singh, although certainly it can be said that his negligence was more than the negligence of respondent No. 2.

7. In Bijoy Kumar Dugar, supra, while considering the somewhat similar case, it was held as under:

"8.To appreciate the respective contentions of the learned counsel for the parties, we have gone through the relevant material on record. It is by now well-settled that the compensation should be the pecuniary loss to the dependants by the death of a person concerned. While calculating the compensation, annual dependency of the dependants should be determined in terms of the annual loss, according to them, due to the abrupt termination of life. To determine the quantum of compensation, the earnings of the deceased at the time of the accident and the amount, which the deceased was spending for the dependants, are the basic determinative factors. The resultant figure should then be multiplied by a 'multiplier'. The multiplier is applied not for the entire span of life of a person, but it is applied taking into consideration the imponderables in life, immediate availability of the amount to the dependants, the expectancy of the period of dependency of the claimants and so many other factors. Contribution towards the expenses of the family, naturally is in proportion to ones earning capacity. In the present case, the earning of the deceased and consequently the amount which he was spending over the members of his family, i.e. dependency is to be worked out on the basis of the earnings of the deceased at the time of the accident. The mere assertion of the claimants that the deceased would have earned more than Rs. 8,000/- to Rs. 10,000/- per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before the MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be. It is stated that the deceased was about 24 years at the time of the accident. The MACT has accepted Rs. 4,000/- per month, as the earning of the deceased and after deducting Rs. 400/- per month for his pocket expenses, the remaining sum of Rs. 3600/- has been divided into three equal shares, out of which two shares, i.e. Rs. 2400/- per month or Rs. 28,800/- (wrongly mentioned as Rs. 28,000/- in the award), were assessed as loss to both the claimants, who were the parents of the deceased. The ages of the claimants are stated to be between 45 and 50 years and accordingly multiplier of 12 was applied. Thus, a sum of Rs. 28,800/- X 12 = Rs. 3,45,600/- was awarded as compensation. In addition thereto, a sum of Rs. 2,000/- has been given for funeral expenses and a further amount of Rs. 6,000/- under the head "Loss of Estate". The total sum award able is Rs. 3,53,600/- but since the deceased was held liable for contributory negligence, the liability of the insurer with whom the bus in question was insured is fixed at 50%, i.e. to the extent of Rs. 1,76,800/- with interest at the rate of 10% per annum from the date of the filing of the claim application till the date of payment. The deceased, a young boy of 24 years old, was unmarried and the claimants were his father and mother, the dependency has to be calculated on the basis that within two or three years the deceased would have married and raised family and the monthly allowance he was giving to his parents would have been cut down. Thus, in our view, the MACT has awarded just and reasonable compensation to the claimants."

8. In view of the above discussion, this Court is inclined to hold that the negligence of the deceased driver can at the maximum be apportioned in the ratio of 75:25 respectively i.e. 75% from the side of deceased and 25% from the side of respondent No. 2. Having held so, I find that the income of the deceased is at the rate of Rs. 1993/-, which can be rounded off to Rs. 2000/- per month. Out of the said amount of Rs. 2000, 1/4th was required to be deduced for reason of self expenses on himself in view of the judgement of Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 : 2009 (2) WLC (SC) Civil 323 wherein the Supreme Court has held that if dependants are four and more, the deduction on self expenses should not be more than 1/4th. However, at the same time in the very same judgement, the Supreme Court has held that on account of future prospects, looking to the age of deceased, 50% should be added. Thus the amount of compensation comes to Rs. 4,59,000 (2000-500+750=2250 x 12 x 17 = 4,59,000), of which only Rs. 1,50,000/- is awarded as compensation as 25% of the total. The appellant No. 1 is also held entitled to a sum of Rs. 10,000/- additionally under the head loss of consortium. Thus the total amount of compensation comes to Rs. 1,25,000 (1,15,000+10,000). The appellant would be held entitled to aforesaid amount together with interest at the rate of 7.5% per annum from the date of filing of claim petition i.e. 18.11.1992.

9. The appeal is accordingly allowed.

10. Compliance of the judgement be made within a period of three months from the date of production of certified copy of this judgement.

Appeal allowed.