Shyamo vs Pipal Singh and Others

Shiv Narayan Dhingra, J.—By present appeal, the appellant/claimant assailed award dated 30th September, 1993 whereby the learned Tribunal held that the deceased taxi driver was equally responsible for the accident and held it to be a case of contributory negligence, 50% on the part of the taxi driver and 50% on the part of the truck driver. The Tribunal arrived at a total compensation of Rs. 1,35,000/- and held that the liability of the Insurance Company would be limited to pay 50% of this amount due to contributory negligence of the deceased. Apart from that, the Tribunal also observed that the liability of the Insurance Company was limited to Rs. 50,000/- only.

The award is assailed on the question of quantum of compensation awarded by the Tribunal, on the issue of contributory negligence and on the issue of limited liability of the Insurance Company.

Brief facts relevant for the purpose of deciding this appeal are that the taxi No. DLT-5158 being driven by Ram Pal met with an accident on 13th March, 1980 with truck No. HRD-8789. Ram Pal was taking his taxi from Palam Airport to Punjab with four passengers in it and accident took place when he was on GT Road at outskirts of Delhi. The Claim Petition was filed by parents of Ram Pal only. His wife did not prefer claim petition and was made as respondent No. 5. Despite service of notice she did not appear and was proceeded ex parte.

The learned Tribunal after going through the evidence adduced by two witnesses viz. PW-5 & PW-1 0 came to the conclusion that PW-1 0 was a procured witness, he was not a truthful witness neither was an eye witness. This conclusion was rightly drawn by the Tribunal in view of the shaky testimony given by this witness and the fact that this witness appeared as a witness only before the Tribunal and had not testified in criminal case nor approached the police at any stage nor helped the injured person soon after the accident, despite the fact that he claimed to be present on the spot. It is also a fact that he was another taxi driver. PW-5 was one of the occupants of the taxi and in his cross examination he did not deny the version that accident took place due to fault of taxi driver Ram Pal. He deposed that he did not know if the taxi driver, after overtaking, came in front of the offending truck. Liquor bottles were also recovered from the taxi. The witness could not state if the driver had consumed liquor. He did not deny the suggestion that it was a head-on collision which took place on that side of the road where truck was coming and not on the side where taxi should have been. I consider that no fault can be found with the conclusion arrived at by the learned Tribunal that it was a case of contributory negligence and taxi driver deceased Ram Pal was equally responsible for the accident.

As far as quantum of compensation is concerned, a perusal of award would show that the Tribunal has been over generous to the claimants while calculating compensation. The Tribunal applied multiplier of 25 taking into account the age of the deceased, forgetting that the claimants in this case were parents of the deceased, aged above 60 years. Widow of the deceased was not a claimant nor even appeared before the Tribunal but the Tribunal took into account the age of widow of deceased for deciding multiplicand and presumed that she would not have been more than 20 years of age at the time of accident. It must have been remembered by the Tribunal that it had to adjudicate the claim of those claimants who made claim petition before the Tribunal. The Tribunal could not have taken into consideration age of wife of deceased, since she despite notice, did not appear in the Court. The multiplier could not have been selected by the Tribunal taking into account the age of the wife, who was not the claimant. The multiplier should have been applied taking into consideration the age of the claimants i.e. parents. It is a fact that father of the deceased died during pendency of the claim petition itself. The income of the deceased was taken as Rs. 450/-, as stated by the claimants. No deduction for personal expenses was made. I, therefore, consider that it is not a case for enhancement of compensation.

The Tribunal after holding that the claimant was entitled to Rs. 1,35,000/- as compensation apportioned Rs. 1 lac for the mother and Rs. 35,000/- for the wife, who never appeared to claim this compensation. The Tribunal held that liability of the Insurance Company was limited to Rs. 50,000/- . I need not go into the issue of liability of the Insurance Company since the Insurance Company was to pay only Rs. 50,000/- in terms of claim allowed by the Tribunal to the mother.

The appeal is dismissed holding that it was a case of contributory negligence and the compensation awarded by Tribunal in no way was unjust and unfair.