Khairati and Another vs Kalicbarn Tiwari and Others

R.K. Vijaywargiya, J.—This order shall also dispose of Misc. Civil Appeal Nos. 179/74 Khaiarti v. Kalicharan and Anr. and 180 of 1974 Khairati v. Umashanker Twari and Anr.

These appeals u/s 110-D of the Motor Vehicles Act (hereinafter referred to as the Act) are directed against the award dated 22-4-74 passed by the Additional Motor Accidents Claims Tribunal, Dewas, in claim cases No. 24 of 1974, 25 of 1974 and 26 of 1974.

The facts giving rise to these appeals briefly stated are as follows: On 14-12-1965 in the early morning the applicants Shri Kalicharan Tiwari, Shri Umashanker Tiwari accompanied by the deceased Smt. Sudha Tiwari wife of Shri Kalicharan Tiwari left Indore for Bhopal in Fiat car No. M.PE. 9000 belonging to the applicant Shri Kalicharan Tiwari. The car was being driven by Shri Kalicharan Tiwari. Jangi, who was the peon of Shri Kalicharan Tiwari also accompanied him in the car. He was seated on the back seat. There was dense fog on that day. When the car reached near Sonkatch as a cloud of fog enveloped the car and the visibility was very poor Shri Kalicharan slowed down the car and was in the process of bringing it to a halt on the left side of the road, it was dashed against a truck bearing registration No. M.P.B. 7911 coming from the opposite direction. The truck belonged to the Appellant No. 1 and it was being driven by Mohd. Nafiz Khan. The truck was insured with Anand Insurance Company Ltd., the Appellant No. 3. According to the claimants the accident occurred on account of the rash and negligent driving by the driver of the truck, Smt. Sudha Tiwari received serious injuries in the accident or as a result of which she died. Shri Kalicharan also received serious injuries so also Shri Umashanker Tiwari and the peon Jangi. The legal representatives of Smt. Sudha Tiwari filed a claim petition claiming Rs. 1,50,000/- as compensation on account of the death of Sent. Sudha Tiwari. This case was eventually registered as claim case No. 24 of 1974. Shri Kalicharan Tiwari by a separate application claimed compensation for the injuries suffered by him. He claimed Rs. 1,00,000/- as compensation. This application was eventually registered as claim case No. 25 of 1974. Shri Umashanker Tiwari filed a separate application claiming lis. 10,000/- as compensation for the injuries suffered by him in the accident. His claim was eventually registered as claim case No. 26 of 1974. The Appellants denied the claim of the claimants. All the claim petitions as also the claim petition of Jangi were consolidated and after enquiry were decided by a common award. The Tribunal held that the accident occurred on account of the negligent driving by the driver of the truck and therefore the Appellants and the driver was liable to pay compensation to tae claimants. The Tribunal awarded a sum of Rs. 50,400/- as compensation to or the legal representatives of deceased Smt. Sudha Tiwari in claim case No 24 of 1974 ; a sum of Rs. 68,340/-as compensation to Shri Kalicharan Tiwari for injuries sustained by him in claim case No. 25 of 1974 ; and a sum of Rs. 1,200/- as compensation to Shri Umashanker Tiwari for injuries sustained by him in claim case No. 26 of H74. The Tribunal also awarded interest from the date of application till realisation of the amount at Rs. 6% pa. The Appellants have challenged the award of the Tribunal in these appeals.

The learned Counsel for the Appellants first contended that the Tribunal has erred in giving a finding that the accident occurred on account of the negligent driving by the driver of the truck, Mohd. Nafiz Khan. He contended that the cause of the accident was this negligent driving of the car by Shri Kalicharan Tiwari. He also contended that the amount of compensation awarded by the Tribunal is too excessive and deserves to be suitably reduced.

The learned Counsel for the claimants-Respondents supported the finding of the Tribunal that the accident occurred on account of the negligent driving by the driver of the truck. As regards the quantum the learned Counsel for the claimants-Respondents frankly conceded that it was rather excessive and deserves to be suitably reduced.

The Tribunal on appreciation of the evidence adduced by the parties came to the conclusion that the accident was caused on account of the negligence of the uriver of the truck in driving the truck. We were taken through the evidence by the learned Counsel for the Appellants but he was unable to point out any infirmity in the finding of the Tribunal requiring our interference. Kalicharan Tiwari (P.W. 2) deposed that he was driving the Fiat car ; that when on account of fog the visibility became very poor he took the car to the extreme left and was in the process of bringing it to a halt it was dashed against something. He could not state by what object it was dashed against. From his evidence it is clear that when the accident occurred the car was moving at a very slow speed and was on the extreme left of the road. In the circumstances if it was dashed against by the truck coming from the opposite direction it was for the driver of the truck to have explained how the accident occurred. Mohd. Nafiz Khan who according to the claimants, was driving the truck did not file any written statement. However, he was examined by the Appellants as a witness. He denied that he was driving the truck. On the material placed on record and on the pleadings of the Appellants the Tribunal came to the conclusion that it was Mohd. Nafiz Khan who was driving the truck. Mohd. Nafiz Khan admitted that he was sitting by the side of the driver of the truck whose name he did not know. In the circumstances we are of the opinion that no reliance can be placed upon the testimony of Mohd. Nafiz Khan. The other witnesses examined by the Appellants on the question do not throw any light on this question. We are, therefore of the opinion that on the materials placed on record the Tribunal was fully justified in holding that the accident occurred on account of the negligent driving by the driver of the truck and the Appellants were rightly held liable to pay compensation to the claimants on account of the death of Smt Sudha Tiwari and for injuries sustained by Shri Kalicharan Tiwari and Umashanker Tiwari.

As regards the quantum the Tribunal awarded Rs. 50,400/- as compensation to the legal representatives of the deceased Smt. Sudha Tiwari. The basis adopted by the Tribunal is rather unintelligible. According to the Tribunal Smt. Sudha Tiwari who was 46 years of age would have spent I /5th of the salary of her husband Shri Kalicharan Tiwari on herself and she would have lived atleast for 14 years more. According to the Tribunal l/5th of her husband''s salary which was Rs. 2,500/- p.m., worked out to Rs. 500/- and reducing it to Rs. 300/- p.m. the loss was assessed at Rs. 3,600/- to the legal representatives which amounted to Rs. 50,403/- for 14 years. This basis is entirely wrong. It is not necessary for us to discuss the quantum of compensation in detail because the learned Counsel appearing for the parties agreed that a sum of Rs. 20,000/- would be a fair compensation awardable to the claimants. We are of the opinion that this amount would adequately recompense the claimants for the death of Smt. Sudha Tiwari.

We are also of the opinion that the amount of compensation awarded to Shri Kalicharan Tiwari for injuries sustained by him is excessive. The Tribunal has worked out the compensation as follows: Loss of amenity Rs. 200/- p m.-Rs. 2,400/- per year for 14 year i.e. Rs. 33,600/- ; permanent disability and shortening of leg Rs. 10,000/- ; pain and anguish during the treatment and after Rs. 20,000/- ; loss of prospects of life Rs. 100/- p.m. i.e. Rs. 1,200/- for 14 years Rs. 16,800/- = Total Rs. 80,400/-, less 15% for uncertainties of life Rs. 12,060/-= Total Rs. 68.340/-. We are of the opinion and the learned Counsel for Shri Kalicharan Tiwari also agreed that this amount is rather excessive in the circumstances of the case. We are not required to consider the matter in detail because the learned Counsel for the parties agreed that a sum of Rs. 30,000/-would be adequate recompense for the injuries sustained by Shri Kalicharan Tiwari. We are of the opinion that a sum of Rs. 30,000/- would be adequate compensation awardable to Shri Kalicharan Tiwari as compensation for injuries sustained by him.

The Tribunal has awarded Rs. 1,200/-as compensation for the injuries sustained by Shri Umashanker Tiwari. We are of the opinion that this amount cannot be said to be excessive requiring interference in this appeal. We therefore see no reason to interfere with the amount of compensation awarded to Shri Umashanker Tiwari for injuries sustained by him in the accident.

We may also add that the truck in question was insured with the Appellant No. 2 insurance company for Rs. 20,000/-, The liability of the Appellant insurance company would therefore be restricted to Rs. 20,000/- and interest thereon and the costs of the claim petitions as awarded by the Tribunal.

As a result of the discussion aforesaid Misc. Civil Appeals No. 174 of 1974 Khairati v. Shri Kalicharan Tiwari and Ors. and Misc. Civil Appeal No. 179 of 1974 Khairati v. Shri Kalicharan Tiwari and Anr. are partly allowed and the award of the Tribunal is modified. It is directed that the Appellants and the Respondent No. 6 Mohd. Nafiz Khan shall pay a sum of Rs. 20,000/- to the Respondents 1 to 5 in Misc. civil appeal No. 174 of 1974 as compensation for the death of Smt. Sudha Tiwari. The Appellants and Respondent No. 2 shall pay a sum of Rs. 30,000/- as compensation to the Respondent No. 1 in Misc. civil appeal No. 179 of 1974. Misc. Civil appeal No. 180 of 1974 is dismissed. The Appellants and Respondent No. 2 shall pay a sum of Rs. 1.200/- as compensation to the Respondent No. 1 as awarded by the Tribunal. The claimants shall also he entitled to receive interest on the amount awarded from the date of the application till realisation as ordered by the Tribunal. The costs of the claim petitions shall be borne by the parties as awarded by the Tribunal. As regards the costs of these appeals we direct that in the circumstances of the case the parties shall bear their own costs.