Panchi Devi and Others vs Tilak Raj and Others

Dr. Vineet Kothari, J—The present two appeals arising out of same accident, which took place on 05.07.1994 at 03.30 PM when the appellant/claimant Rampal Singh (In CMA No. 344/1998) driving his motorcycle number RSZ-9031, met with an accident with Truck coming from opposite side, namely, DL-1-G/8207 on Beawar-Sojat Road, near bridge over Raipur river. The deceased, Prabhulal was sitting on the motorcycle as pillion rider and he died on the spot at the age of 23 years in the said accident. Both the Rampal Singh and Prabhulal, were doing the work of laborers at Krishi Puaj Mandi.

The learned Motor Accident Claims Tribunal, Sojat, District Pali, held that it is a case of contributory negligent driving of motorcycle by Rampal Singh and also found that he was not having valid driving licence on the date of accident and, therefore, while rejecting the claim petition filed by appellant- Rampal Singh for the injuries suffered by him, also found that the legal representatives of deceased Prabhu Lal, namely, his parents, Smt. Panchi Devi and Sh. Kishanlal, also would recover compensation determined by Tribunal to the extent of Rs. 2,59,920/- only from the owner of the motorcycle, namely, Rampal Singh and not from the Insurance Company of the insured Truck since the driver of motorcycle, viz. Rampal Singh, was not having the valid licence and, therefore, was solely was responsible for the said accident in question. The relevant findings the learned Tribunal in the judgment and award are quoted herein below for ready reference:--

Mr. M.S. Soni, appearing on behalf of Mr. Rajesh Panwar, learned counsel for the appellants/claimants submitted that it is a case of composite negligence and not contributory negligence, and therefore, the claimants viz parents of decease Prabhu Lal, could proceed against any of the vehicle owners i.e. motorcycle or the offending truck and, thus, the claim awarded by the learned Tribunal could not be directed to recovered only from the owner of the motorcycle while exonerating the Insurance Company of the insured truck. He also relied upon the decision of Hon''ble the Supreme Court in the case of Sudhir Kumar Rana Vs. Surinder Singh and Others, (2008) ACJ 1834 : AIR 2008 SC 2405 : (2008) 7 JT 131 : (2008) 8 SCALE 594 : (2008) 12 SCC 436 : (2008) AIRSCW 3981 and has also drawn the attention of the Court towards the site map, and Mr. Soni submitted that the said site map would clearly reveal that the motorcycle was being driven on the left hand side on the curve of the road, whereas the Truck in question coming from the opposite side, went on right side and hit the motorcycle from the front causing injuries to Rampal Singh, and death of pillion rider, Prabhu Lal.

Learned counsel for the appellant also refuted the submission of learned counsel for the Insurance Company that accident took place in the middle of the road and he submitted that it was on the left hand side of the road. He also submitted that merely not possessing the valid licence by the driver of the motorcycle, namely, Rampal Singh, might be an offence on his part, but that would not per se lead to a finding of his contributory negligence as regards the said accident. Therefore, for the appeal filed by Rampal Singh, whose claim petition was rejected by the learned Tribunal, Mr. Soni urged that even claim of the injured Rampal Singh deserves to be granted by this Court or in the alternative the matter may be remanded to the learned Tribunal for determination of the compensation. Learned counsel for the appellants also contended that the learned Tribunal while deciding the Issue No. 1 has also found that Driver of Truck was also negligent, and the said finding of his contributory negligence has not been challenged by the Insurance Company.

On the other hand, Mr. U.C.S. Singhvi, learned counsel appearing on behalf of third respondent, Oriental Insurance Co. Ltd. submitted that findings of the contributory negligence of Rampal Singh, driver of motorcycle and consequent exoneration of the insurance company by the learned Tribunal are justified, as the accident in question took place in the middle of the road and since the driver of motorcycle didn''t possess any valid licence, it should be deemed that he is solely liable and responsible for the said accident and liability to pay the compensation has rightly been fastened on Rampal Singh. He also urged that in the judgment relied upon by the learned counsel for the appellants/claimants, there was no findings of the Tribunal about the negligence of the young child of 17 years, who was driving the scooter without having valid licence, whereas in the present case, the driver of the motorcycle, Rampal Singh, not only did not possess the valid licence but was found to be guilty of contributory negligence while driving his motorcycle at the middle of the road while said accident took place, and therefore, that judgment is distinguishable and the claim petition of the Driver Rampal Singh has been rightly rejected by the learned Tribunal.

Mr. U.C.S. Singhvi, also submitted that even though findings of negligence of the Driver of the Truck have not been assailed by the Insurance Company but under Order 41 Rule 33 CPC, this Court can grant the said relief to the Insurance Company and exoneration of the Insurance Company can be upheld.

I have heard learned counsel for the parties at length and perused the reasons given by the learned Tribunal in its judgment and award and also perused the judgment cited at bar.

The Hon''ble Supreme Court in the case of Sudhir Kumar Rana (supra) in the context of factual matrix held as under:--

"Appellant was driving a two-wheeler bearing registration No. DL-45 AQ 0731 on 30.10.2003. He was aged about 17 years. He met with an accident, as allegedly respondent No. 1 was driving a mini-truck rashly and negligently. He suffered the following injuries in the said accident:

"1. Crush injury over right root.

Fracture fifth M.T. bone and joint.

Fracture P.P. little toe. (Total 3 fractures)

Abrasions over left side trunk, right-foot, right-leg, right-hand and left-knee

Profusely Bleeding.

Abrasions and blunt injuries all over body."

If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.

The matter might have been different if by reason of his rash and negligent driving, the accident had taken place."

A perusal of the site map (Ex. 4) prepared by the police authorities at the site supports the case of the claimants/appellants. Point "A" of the accident in the said site map is not at the middle of the road on curve of the road but on the left hand side of the curve, from Raipur side, from which side the motorcycle was coming. Since the Truck was coming from opposite side, the Truck driver was required to keep the truck on the left side of the road, while on the curve and he had taken adequate care and caution, the accident at point "A" in the site map, could have been avoided. The motorcycle coming from Raipur side had not gone on the right hand side of the road coming in the way of the path of truck and, therefore, it could not be said that there was any contributory negligence of the driver of motorcycle. His not possessing a valid licence by Rampal Singh at the time of accident per se cannot result into a finding of his contributory negligence, even though it might be an offence on his part not to possess such a valid licence as per the requirement of law. There is no finding of the Tribunal that the driver of the Truck did not contribute in the said accident and on the other hand, the un-assailed finding of the Tribunal while deciding Issue No. 1 is that the Driver of the Truck also negligently contributed to the said accident. In these circumstances exoneration of the third respondent, Insurance Company, insurer of the Truck, cannot be upheld.

Therefore, as far as appeal (CMA No. 344/1998) of Rampal Singh, driver of motorcycle is concerned, that deserves to be allowed and the matter deserves to be remanded back to the Tribunal for determination of amount of compensation for the injuries suffered by him in the said accident. Accordingly, the misc. appeal filed by the appellant- Rampal Singh (CMA No. 344/1998) is allowed and his claim case is remitted to the learned Tribunal to re-decide the same about quantum of compensation within a period of three months from today. The appellant- Rampal Singh may appear before the learned Tribunal in the first instance on Monday, 03.08.2015.

Coming to the question of enhancement of compensation by the claimants/appellants (CMA No. 343/1998) viz. Smt. Panchi Devi and Sh. Kishanlal, the parents of deceased Prabhulal, pillion rider of the motorcycle, it may be noted that the parents were of age between 40-45 years at the time of accident in the year 1994 by now they are between 60-65 years of their age. Learned counsel for the appellants was also justified in contending that the Tribunal has not considered the aspect of possibility of future increase in the income of the deceased looking to young age of the deceased, who at the time of death was only 23 years of age. He relied upon a recent decision of Hon''ble Apex Court in the case of Santosh Devi Vs. National Insurance Company Ltd. and Others, (2012) ACJ 1428 : AIR 2012 SC 2185 : (2012) 4 SCALE 559 : (2012) 6 SCC 421 : (2012) AIRSCW 2892 : (2012) 3 Supreme 197 in which the earlier decision of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 was also considered. The relevant portion of the judgment of the Hon''ble Apex Court in the case of Santosh Devi (supra) is quoted herein below for ready reference:--

"11. We have considered the respective arguments. Although, the legal jurisprudence developed in the country in last five decades is somewhat precedent-centric, the judgments which have bearing on socio-economic conditions of the citizens and issues relating to compensation payable to the victims of motor accidents, those who are deprived of their land and similar matters needs to be frequently revisited keeping in view the fast changing societal values, the effect of globalisation on the economy of the national and their impact on the life of the people.

We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma''s case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc. the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naive to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the changes posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma''s judgment, the Court had intended to lay down an absolute rule that there will be no addition in the case income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victims of accident then the same formula deserves to be applied for calculating the amount of compensation."

In case of Sarla Verma (supra), the Hon''ble Apex Court in para 24 held as under:--

"24...... In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."

Learned counsel for the appellants/claimants had also contended that award of compensation under the head of loss of consortium awarding only Rs. 10,000/- is also on the lower side and the same deserves to be enhanced.

However, taking over all view of the matter specially the advanced age of the parents of the deceased Prabhu Lal, who unfortunately expired at the age of 23 years and though his wife had expired earlier, she had left behind three daughters to be taken care by the grand parents.

As far as applicability of the said Apex Court''s decisions is concerned, learned counsel for the third respondent i.e. Oriental Insurance Company, Mr. U.C.S. Singhvi, is not in a position to controvert the same and, therefore, a suitable enhancement in the compensation awarded is called for and, therefore, to this extent, the appeal (CMA No. 343/1998) deserves to be partly allowed and the award appealed against deserve to be suitably modified. Accordingly, an ad-hoc enhancement of Rs. 1,00,000/- (Rupee One lac only) is considered appropriate. The said enhanced amount along with interest @ 9% per annum shall be payable from the date of filing of the claim petition till the actual payment, which should be made within a period of three months by the third respondent i.e. Oriental Insurance Company. The amount of compensation will be disbursed in all five legal heirs of the deceased Sh. Prabhu Lal, parents Smt. Panchi Devi and Sh. Kishanlal and three daughters of the deceased. The said compensation amount to the extent of 75% may be kept in separate FDRs for said five legal representatives of deceased in a nationalized Bank for a period of five years and the remaining 25% amount may be disbursed by individual cheques in favour of the five legal heirs of deceased Prabhu Lal. The names of the three daughters of Prabhu Lal may be ascertained by the learned Tribunal for this purpose. The claimants may appear before the learned Tribunal on 03.08.2015 and produce proof of existence of the said five legal heirs of deceased Prabhulal, before the Tribunal.

With the aforesaid modification of the award about the quantum in the CMA No. 343/1998 Smt. Panchi Devi & Anr. v. Tilakraj & Ors, the same is partly allowed as indicated herein above. No costs. A copy of this order be sent to the concerned parties and the learned MACT, Sojat, forthwith.