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Judgment
This Appeal is preferred under Section 166 of Motor Vehicle Act, 1988 (for short “the Act”) by original claimants taking exception to the judgment and order dated 05.12.2006 passed in MACP No. 507/2000.
Claimants are wife & children of Vijay Sakharam Bachchav, who died in motor vehicular accident occurred on 19.04.2000. Owner of the offending vehicle as well as insurer were made party to the claim Petition. It is the case of the claimants that, on 19.04.2000 deceased was proceeding on his motorcycle bearing no. MH-16-C-4208. When he reached Parner to Supa Road in Hanga Village Shiwar, a tempo bearing No. MH-16/B-4127 came from opposite direction and gave dash to motorcycle of deceased in the negligent manner. In the said accident, deceased sustained serious head injury. As a result of fatal injuries, deceased died on the spot.
Claimants being widow and children, filed claim Petition bearing MACP No. 507/2000 before Tribunal at Ahmednagar claiming compensation of Rs.17 lacs. It is the case of the Claimants that, deceased was aged about 37 years at the time of accident and he was working as a C.D.O. in Z.P. Department and earning Rs. 12,000/- per month.
Owner and Insurer have contested the claim petition and filed their written statements at Exhibits 19 and 20, respectively denying the claim and contentions of the claimants.
After framing of the issues at Exhibit 31, Claimant No.1 – Kalpana Bachchav led her evidence. In addition thereto, to prove income of the deceased, income certificate issued by Dr. Vikramsing Bankarsing Rajput, District Officer, is placed on record at Exhibit 45. Tribunal by judgment and award dated 05.12.2006, directed Respondents to pay sum of Rs. 5,65,000/-along with interest at 9% per annum. Since compensation granted by the Tribunal is found to be inadequate, Claimants/Appellants preferred this Appeal.
Learned Counsel for the Claimants/Appellants seeks enhancement of compensation on the ground that, Tribunal has failed to take into consideration the income of the deceased to the tune of Rs.11,760/- p.m when there is income certificate on record. That, Tribunal has also not considered the future prospects of the deceased in view of judgment of Hon’ble Apex Court in case of National Insurance Co. Ltd vs. Pranay Sethi, (2017) 16 SCC 680. That, Tribunal has erred in deducting 1/3rd income towards personal expenses of the deceased instead of deducting 1/4th. That, even filial consortium ought to have been paid at Rs.40,000/- per claimant in view of the judgment of the Hon’ble Apex Court in case of Magma General Insurance Co. Ltd vs. Nanu Ram and Ors, 2018 ALL SCR 2001. Finally, by relying upon the judgment of Hon’ble Apex Court in case of Kumari Kiran Thr. Her Father Harinarayan vs. Sajjan Singh and Ors, 2015 (3) MhLJ 626, it is vehemently submitted that Tribunal has erred in considering contributory negligence of the deceased in occurrence of accident when in fact driver of the tempo was driving vehicle in rash and negligent manner.
Learned Counsel for the Respondents opposed the said contentions by pointing out the evidence on record, which according to them, indicates that income of the deceased is rightly considered by Tribunal. It is their submission that, Tribunal has rightly deducted the 1/3rd income towards personal expenses of the deceased. They further submitted that, deceased also responsible for occurrence of accident as he is driving motorcycle rashly and negligent and without following traffic rules. On these amongst other contentions, they seek dismissal of the Appeal.
There is no dispute about the occurrence of the accident and involvement of the offending vehicles therein. Tribunal has held that the accident has occurred due to the negligence of the driver of the temp so also deceased also negligent and that the claimants are entitled for compensation.
The issues, which arises for consideration at the hands of this Court, are in respect of non consideration of future prospects & filial consortium, deduction of 1/3rd amount towards personal expenses & deceased can be held to be guilty of contributory negligence.
Claimants though have made claim regarding deceased receiving salary of Rs. 11,760/- per month, Tribunal has considered the salary of the deceased only to the tune of Rs. 9,965/- per month. In this regard, it is pertinent to note that, claimants have placed on record salary certificate of the deceased at Exhibit 45, which was duly proved by Dr. Vikramsing Bankarsingh Rajput, District Officer. Though the witness has stated in cross-examination that the net salary of the deceased was Rs. 9,965/- per month, the Salary Certificate at Exhibit 45 belies this statement and would prevail. The documentary evidence clearly prevails over the oral testimony, and therefore, the income reflected in Exhibit 45 deserves acceptance.
In view of above, in considered opinion of this Court, the conclusion reached by Tribunal with regard to monthly income of deceased is not just & proper, needs interference.
As far as non grant of future prospects and filial consortium are concerned, law to that extent is fairly settled by the Constitution Bench of the Apex Court in case of Pranay Sethi (supra) has held that future prospects are also required to be considered and it should be granted @ 50% when deceased is aged below 40 years and having permanent job. Admittedly, deceased was aged about 38 years, hence, 50% addition needs to be given to the deceased.
As far as the amount of consortium is concerned, in view of the judgment in case of Magma General Insurance Co. Ltd (supra), consortium @ Rs. 40,000/- towards per dependent needs to be allowed.
As far as issue with regard to deduction of 1/3rd income towards personal expenses is concerned, this position was made clear by Hon’ble Apex Court in case of Sarla Verma and Ors. v. Delhi Transport Corporation & Another, (2009) 6 SCC 121, wherein it is observed as under:
“14.Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra [(1996) 4 SCC 362], the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.”
In view of the above position, it can safely be held that the Tribunal was justified in deducting one-third of the income of the deceased towards personal and living expenses, as there were three dependents. The said deduction is in consonance with the settled principles of law and, therefore, calls for no interference by this Court.
Now, the last issue remains for determination is of contributory negligence. Learned Counsel for the Appellants/claimants has placed heavy reliance on the judgment of Hon’ble Apex Court in case of Kumari Kiran (supra), wherein, Hon’ble Apex Court relying upon judgment in case of Juju Kuruvila & Ors, vs. Kunjujamma Mohan & Ors., (2013) 9 SCC 166, held in paragraph 13 as under:
13.With regard to the apportionment of contributory negligence at 25% on the part of the appellant-father and 75% on the driver of the offending tractor as determined by the High Court, we refer to the judgment of this Court in Juju Kuruvila & Ors. v. Kunjujamma Mohan & Ors.[5] as it is applicable to facts of the case on hand. In the above case, Joy Kuruvila (the deceased) had a head-on collision with a bus approaching from the opposite side. Joy Kuruvila sustained serious injuries and died on the way to the hospital. The Tribunal found that the accident occurred due to the rash and negligent driving of the bus driver. It apportioned the contributory negligence between the driver and the deceased in the ratio of 75:25%. On the basis of the pleadings & evidence on record, in the above said case, this Court has held thus on the negligence of the driver of the bus:-
“20.5.The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.
20.6.The post mortem report, Ext. A-5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal and his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext.A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of the accident. The mere suspicion based on Ext. B-2 “scene mahazar” and Ext. A-5 post-mortem report cannot take the place of evidence, particularly, when the direct evidence like PW3 (independent eyewitness), Ext. B-1 (FI statement) are on record.”
The observations made by this Court in the case of Juju Kuruvila (supra) surely apply to the fact situation on hand. Upon thorough examination of the facts and legal evidence on record in the present case, it cannot be said that the appellant-father was rash and negligent just on the assumption made by the Tribunal that the collision occurred in the middle of the road since the two vehicles were approaching from opposite directions of the road. However, the only aspect of the case on hand that we can reasonably assume is that the appellant-father would have taken sufficient caution while riding the motorcycle since he was travelling with his two minor children (appellant-minors). Further, upon examining the evidence produced on record, there is no proof showing negligence on the part of the appellant-father. Thus in our view, the contributory negligence apportioned by the High Court at 25% on the appellant-father and 75% on the driver of the offending tractor is erroneous keeping in view the legal principles laid down by this Court on this aspect in the above referred case. Thus, we are of the firm conclusion that the negligence is wholly on the part of the driver of the offending tractor since he was driving the heavier vehicle. Therefore, we set aside the 25% contributory negligence on the part of the appellant-father as apportioned by the High Court. (Emphasis supplied)
In this case, Hon’ble Apex Court has held that there was no direct or corroborative evidence to establish rash or negligent driving on the part of the motorcycle rider. The finding of contributory negligence was based only on assumptions drawn from the position of the vehicles and the fact that the collision occurred mid-road, which is legally insufficient. In the absence of proof showing negligence on the part of the motorcycle rider, he cannot be held responsible for the accident. Consequently, the entire negligence is attributable to the driver of the offending tractor, and the appellant-father bears no contributory negligence.
Bearing in mind the above position, facts and reasoning of the Tribunal are put to scrutiny.
In the present case, although there is a report of the occurrence of the accident given to the police by one Balashaeb Auchite, the same cannot be considered to be prompt, as the accident occurred at about 02:30 p.m., whereas the report was lodged at about 03:30 p.m. It is pertinent to note that, this witness is the driver of the offending vehicle in question. In the report, he has stated that after the occurrence of the accident, he was frightened and, therefore, went to the police station. However, it is significant to note that, he approached the police station only after a delay of about one hour or more from the time of the accident. Such unexplained delay creates a serious doubt about the spontaneity and genuineness of the report and gives rise to a reasonable inference that the report may have been lodged as an afterthought, with an intention to give a self-serving version of the incident.
Even if the version of the witness is assumed to be true, the same stands in clear contradiction to the findings recorded by the Tribunal. In paragraph 8 of the impugned judgment, the Tribunal has observed that the width of the road was 12 feet, whereas the width of the tempo was approximately 8 to 10 feet. The witness has stated that while overtaking the jeep ahead of him, the deceased collided with the tempo, resulting in the accident.
Such a version is inherently improbable. When the width of the road is only 12 feet and the tempo itself occupies 8 to 10 feet of that width, even assuming the width of the jeep to be around 8 feet, more than half of the road would already be occupied by the tempo alone. In such circumstances, there would be virtually no space left for the motorcycle of the deceased to overtake the jeep. Therefore, the story narrated by the witness, read in conjunction with the Tribunal’s own observations, does not inspire confidence and cannot form the basis for holding that the deceased was guilty of contributory negligence.
Furthermore, in paragraph 9 of the judgment, the Tribunal has relied upon the panchnama, wherein it is noted that blood was found on the middle portion of the road. Merely because blood was found in the middle of the road, it cannot be presumed that the deceased was riding in the middle of the road or that he was negligent. Such an inference is purely hypothetical and unsupported by any direct or cogent evidence. Several material factors, including the speed, position and condition of the vehicles and the directions in which they were proceeding, must be taken into consideration. There is no material on record to establish that the accident occurred due to any act of negligence on the part of the deceased. In the absence of corroborative evidence, the Tribunal has committed a grave error in holding the deceased guilty of contributory negligence.
In view of the foregoing discussion, this Court has no hesitation in holding that the deceased cannot be saddled with contributory negligence. On the contrary, the evidence on record clearly establishes that the accident occurred due to the rash and negligent driving of the tempo by its driver.
In view of above and by following the dictum of Hon’ble Apex Court in case of Magma General Insurance Co. Ltd & Pranay Sethi (supra), this Court finds it appropriate to grant Rs. 40,000/- towards filial consortium & 50% addition towards future prospects. Hence, amount of compensation payable is determined as follows:
| Sr. No. | Heads | Calculations in Rs. |
| 1. Annual Income Rs. 1,62,235 + 87,296/- (difference of 5th pay scale) = Rs. 2,49,531/- (-)Rs. 28,486/- Deduction towards income tax = Rs. 2,21,045/-+ 50% addition towards future prospects= Rs.1,10,523/-Rs. 2,21,045 (+) Rs. 1,10,523 = Rs. 3,31,568/- | ||
| 2. | Rs. 3,31,568/- divided by 1/3rd of the personal expenses (Rs. 3,31,568 – Rs. 1,10,522/-) = Rs. 2,21,046 | |
| 3. Multiplier Rs. 2,21,046 x 15 | 33,15,690/- | |
| 4. Love and affection | 10,000/- | |
| 5. Loss of Estate | 25,000/- | |
| 6. Funeral expenses | 25,000/- | |
| 7. Consortium Rs. 40,000 x 3 | 1,20,000/- | |
| 8. Hence, total compensation to be paid | Rs. 34,95,690/- | |
| 9. Compensation awarded by Tribunal | Rs. 5,65,000/- | |
| 10. Total enhanced Compensation | Rs. 29,30,690/- |
As a result of above, Appeal stands partly allowed. Hence, the order:
O R D E R
Appeal is partly allowed. Impugned judgment and award dated 05.12.2006 passed in MACP No. 507/2000 is modified. Total compensation is Rs. 34,95,690/- along with interest at 9% per annum as determined above.
Claimants to pay Court fee on enhanced compensation as per rules.
Rest of judgment and award to remain unchanged.
The difference of compensation amount be deposited within a period of six weeks.
Amount deposited (along with interest) by insurer is permitted to be withdrawn by Claimants.
No order as to costs.
In view of disposal of Appeal, pending applications, if any, stands disposed of.