Soma Devi & Another vs Managing Director HRTC And Another

Virender Singh, Judge

Both the above titled appeals are being decided by a common judgment, as both the appeals have been filed, under Section 173 of the Motor Vehicles Act, (hereinafter referred to as the ‘M.V. Act’), against the award dated 20.08.2019, passed by the learned Motor Accident Claims TribunalIV, Shimla, H.P., (hereinafter referred to as the ‘learned Tribunal’), in M.A.C. Petition No.11S/2 of 2018, titled as Soma Devi and Another versus Managing Director Himachal Road Transport Corporation & Another.

By way of award dated 20.08.2019, the learned Tribunal has partly allowed the claim petition, filed by the appellants in FAO (MV) No. 503 of 2019 and awarded a sum of Rs.12,96,000/ along with interest @ 9% per annum, from the date of filing of the petition till the date of payment and on the basis of the contributory negligence, contribution of the deceased has been assessed as 50%. As such, the appellants in FAO (MV) No. 503 of 2019 were held entitled to compensation to the extent of 50%.

For the sake of convenience, parties to the present appeals, are hereinafter referred to, in the same manner, in which, they were referred to, by the learned Tribunal.

Brief facts, leading to the filing of the present appeals, as borne out from the record, may be summed up, as under:

The petitioners, being parents of deceased Sachin Thakur, had filed the claim petition, under Section 166 of M.V. Act, before the learned Tribunal, against the respondents, being owner and driver of bus No.HP655696, (hereinafter referred to as ‘the offending vehicle’).

According to the petitioners, their son Sachin Thakur, met with an accident on 15.10.2017, at about 1.45 p.m., at Salah, Sundernagar, while he was driving Scooty bearing registration No.HP31B5743, on his way back to Sundernagar side from Mandi side, after refilling the petrol in his Scooty. According to the petitioners, at the relevant time, respondent No.2 was driving the offending vehicle in a rash and negligent manner and hit the Scooty. Consequently, Sachin crushed under the tyre of the offending vehicle and died on the spot.

Age of deceased Sachin Thakur has been pleaded as 18 years and he was a student, studying in +2 standard, at the time of accident.

The matter was also reported to the police of Police Station, Sundernagar, where, FIR No.0200/2017, under Sections 279 and 304A IPC, has been registered, against the deceased.

Petitioners have pleaded about their bright past and bleak future. According to them, the accident had taken place due to the rash and negligent driving of respondent No.2. As such, they have sought compensation of Rs.25,00,000/, along with interest @ 12% per annum, from the respondents.

When, put to notice, the claim petition has been contested by the respondents.

Respondent No.1 has filed separate reply, in which, he has taken the preliminary objections that the claim petition is not maintainable; the petitioners have not approached the learned Tribunal with clean hands; the owner of Scooty and its insurer have not been impleaded as party, as Sachin was driving the Scooty in a rash and negligent manner.

On merits, the contents of the petition have, mainly, been denied for want of knowledge. However, the factum of accident and registration of FIR, has not been denied. According to respondent No.1, the accident had taken place due to the rash and negligent driving of Sachin.

Respondent No.2driver has filed his separate reply, by taking the preliminary objections. On merits, he has denied all the contents of the claim petition, but, the factum of accident has been admitted. According to him, the accident had taken place, due to rash and negligent driving of deceased himself.

Thus, both the respondents have prayed for dismissal of the claim petition.

Petitioners have filed rejoinder to the reply filed by respondent No.2, denying all the contents of the written statement, and reasserting that of the claim petition.

From the pleadings of the parties, following issues were framed by the learned Tribunal, vide order dated 12.09.2018:

Thereafter, parties to the lis were directed to adduce evidence.

After closure of the evidence, the learned Tribunal, upon hearing learned counsel for the parties, has allowed the claim petition of the petitioners, by awarding the compensation, as referred to above.

Aggrieved from the said award, the petitioners have preferred FAO (MV) No.503 of 2019, before this Court, mainly, on the ground that the learned Tribunal has wrongly deducted 50% amount of the compensation, on account of contributory negligence, which, according to them, has not been proved by the respondents. The petitioners have relied upon the statement of PW3, Suresh Kumar, who is spot/eye witness, who has categorically stated that respondent No.2, was driving the offending vehicle in a rash and negligent manner and hit the scooty of the deceased.

Award has also been assailed on the ground that the learned Tribunal has failed to appreciate the oral, as well as, the documentary evidence, produced by the parties to the lis before the learned Tribunal.

On the basis of the above facts, Mr. Lakshay Thakur, Advocate, appearing for the appellants, has prayed that the appeal may kindly be allowed, by setting aside award, by virtue of which, 50% amount of compensation has been ordered to be deducted on account of contributory negligence of Sachin Thakur. Apart from this, a prayer has also been made to enhance the amount of compensation, so that, the same could fall within the definition of ‘just compensation’.

On the other hand, respondent No.1 filed FAO No.201 of 2020, against the award passed by learned Tribunal, on the ground, that the learned tribunal has committed grave judicial error and illegality in awarding the amount of compensation and according to the HRTC, the accident, in question, had taken place due to rash and negligent driving of the deceased himself, as, he was driving his scooty, in a rash and negligent manner and struck against the bus.

Highlighting the fact that the FIR has been registered against the deceased by the pillion rider, it has been submitted that the HRTC, as well, as respondent No.2, are not liable to pay the amount of compensation.

By way of FAO No. 201 of 2020, HRTC has sought exoneration from paying the amount of compensation, as according to them, accident, in question, had taken place due to the rash and negligent driving of the deceased himself.

The factum of accident has not been disputed. According to the petitioners, the accident had taken place due to the rash and negligent driving of respondent No.2, whereas, a stand has been taken by the respondents that the deceased himself was negligent, while driving the Scooty and according to them, due to the said reason, FIR has been registered against the deceased, that too, by the pillion rider.

Considering the fact that both the parties have assailed the award, by way of the above appeals, as such, the evidence, so adduced, by both the parties, is required to be discussed.

PW1 HHC Kesar Singh, has proved the copy of the FIR, Ex.PW1/A. He has also stated that the FIR was registered against the rider of Scooty Sachin Thakur.

Petitioner No.1, Soma Devi, appeared in the witnessbox, as PW2 and tendered her affidavit, in her examinationinchief, Ex.PW2/A, which is based upon the assertions, as made, in the claim petition.

In the crossexamination, this witness has admitted that the accident had taken place, on National Highway, however, she has denied that accident had taken place due to the rash and negligent driving of her son. She has also denied that the suggestion that FIR has been registered against her son. She has also denied in the statement of Tikshit Sen, it has been found that Sachin could not control the Scooty. She has feigned her ignorance that Tikshit Sen was also travelling on the Scooty. Voluntarily stated that the person present there told her in the hospital that the accident had taken place due to the rash and negligent driving of the offending vehicle. Rest, she has denied all the suggestions put to her by the learned counsel for the respondents.

Petitioners have examined Suresh Kumar (PW 3), as eye witness of the accident. He has filed his affidavit, Ex.PW3/A, according to which, he has deposed that on 15.10.2017, at about 1.45 p.m., he was present near Salah, Sundernagar, District Mandi and in the meantime, a Scooty, bearing registration No.HP31B5743, which was being driven by Shri Sachin, who, after refilling petrol in the Scooty, came back to Sundernager side. Subsequently, the offending vehicle, being driven by respondent No.2, in a rash and negligent manner, came from the opposite side and hit the Scooty of the deceased. Consequently, Sachin Thakur, wascrushed under the tyre of the offending vehicle and died on the spot. Number of persons gathered there, who informed the police regarding the accident, which, according to him, had taken place due to the rash and negligent driving of respondent No.2, but, despite information, the police official, in order to save respondent No.2, intentionally not lodged the FIR against respondent No.2.

This witness has reasserted the fact that the accident, in question, had taken place due to the rash and negligence driving of respondent No.2.

In the crossexamination, this witness has deposed that he is contractor, by profession. Father of the deceased, is not personally known to him and he came in his contact, after the accident. He has admitted that the spot, where, the accident had taken place is on the National Highway. Respondent No.2, was not in his lane and hit the Scooty and deceased was crushed under the rear tyre. After the accident, FIR has been registered against the driver. According to him, when, he has seen the accident, Sachin Thakur, was all alone on the Scooty. He has voluntarily stated that the police was apprised that the accident, in question, had taken place due to the rash and negligent driving of the bus driver.

PW4, Dinesh Raj Thakur, Pharmacist, has proved the copy of the postmortem report of Sachin as Ex.PW 4/A.

To rebut this evidence, driver of the offending vehicle appeared in the witnessbox as RW1. He has deposed that on 15.10.2017, he was deployed as driver on the offending vehicle enroute Janjheli to Shimla. When, he, while driving the offending vehicle, reached near Poultry Farm, Salah, he was driving the offending vehicle in his lane, in the meanwhile, one Scooty, upon which, one rider and other was pillion rider, came under the rear tyre of the offending vehicle. According to him, the accident, in question, had taken place due to the rash and negligent driving of the Scooty and he was on his own lane. The rider of the Scooty left his lane and fell down, due to which, he came underneath the rear tyre.

In the crossexamination, this witness has denied the suggestion that he has violated the lane rules. Voluntarily stated that he was driving the vehicle in the proper lane. He has also denied that PW3 Suresh Kumar was present on the spot and he has informed the police that the accident in question had taken place due to the rash and negligent driving of respondent No.2. Rest, he has denied all the suggestions, which have been put to him.

RW2 Suresh Kumar, Inspector HRTC, deposed that he and JTO Krishan Kumar were directed by the Department to visit the spot. They have visited the spot and investigated the matter and prepared the spot map. The spot map is Ex.RW2/A and report is Ex.RW1/A. He has also deposed that the accident in question had taken place on the National Highway. In the said accident, respondent No.2 was neither rash nor negligent, but, the accident had taken place due to the rash and negligent driving of the Scooty, by its rider.

This witness has not witnessed the accident, in question. He reached, on the spot, about 1520 minutes, after the accident. Rest, he has denied all the suggestions, which had been put to him by the learned counsel for the petitioner.

Apart from the above oral evidence, the parties have placed on record the documentary evidence. Ex. PW1/A is copy of FIR, Ex.PW2/B is legal heirs certificate, Ex.PW2/C, is death certificate of Scahin Thakur, Ex.PW4/A is copy of the postmortem report, Ex.RW1/A is report of Inspector HRTC, Ex.RW2/A is spot map, prepared by RW2.

This is the entire evidence, adduced by the parties before the learned Tribunal.

The proceedings under the M.V. Act, are summary in nature, where, the liability of the tortfeasor is to be fixed on the basis of touchstone of preponderance of probabilities.

The factum of accident has not been disputed, in this case. However, petitioners have alleged that the accident, in question had taken place due to the rash and negligent driving of respondent No.2, whereas, respondents have taken the plea that the accident had taken place due to the rash and negligent driving of deceased himself.

The learned Tribunal, in the present case, has deducted 50% of the compensation amount, on the ground of contributory negligence on the part of deceased himself. These findings have been assailed by the petitioners before this Court.

Ex. PW1/A, copy of the FIR, is an admitted document. The said FIR has been registered against deceased Sachin. FIR has been lodged on the statement of one Tikshit Sen, who has alleged against Sachin, qua rash and negligent driving. As per the FIR, said Tikshit Sen is resident of village Rasmai, PO Chatrokhari, Sundernagar, District Mandi, H.P. Said person has not been examined by the respondents to prove his version, as given by him, in his statement, under Section 154 Cr.PC, which, admittedly, has not been recorded on oath, whereas, petitioners have examined PW3 Suresh Kumar, who has categorically, stated about the fact that the accident had taken place due to rash and negligent driving of respondent No.2.

A statement made on oath carries presumption of truth, as the person, who made the statement, on oath, not only deposes before the Court, but, also withstands the lengthy crossexamination. In this case, despite lengthy cross examination, nothing could be elicited from this witness to discredit his testimony. Even otherwise, registration of the FIR is not sine qua non for seeking the amount of compensation, which is based upon the tortious liability under the provisions of M.V. Act. When, the eye witness has categorically deposed about the fact that the accident, in question, had taken place due to the rash and negligent driving of respondent No.2, then, in the absence of cogent reasons, his statement is not liable to be discarded. Situation would have been otherwise, had the respondents examined the person, who had lodged the FIR, in the present case.

In this case, it has vehemently been argued by Ms. Shubh Mahajan, Senior Advocate, assisted by Mr. Naresh Mahajan, Advocate, that the version of the person, who lodged the FIR, cannot be discarded, as he was pillion rider on the scooty, driven by Sachin Thakur. It has also been argued that if the said version of Tikshit Sen, was not correct, it was for the petitioners to make a complaint to the higher authorities, regarding wrong registration of the FIR.

To the considered opinion of this Court, the above arguments are devoid of merit, as, different persons react differently, in different situations. The petitioners, who had lost their young son, were under trauma and it cannot be expected from them that they will rush to the police to lodge FIR. No ulterior motive can be attributed to RW3, regarding the accident, in question. He is an independent witness, who was present on the spot and being resident of the same area, his presence on the spot cannot be doubted.

As stated above, the proceedings under the M.V. Act, are to be decided on the touchstone of preponderance of probabilities. In the present case, the author of the FIR was not examined. Thus, there are two statements, one by the independent witness Suresh Kumar and another made by the driver of the offending vehicle, who is bound to defend his case.

PW3, being an independent witness, has no motive to depose contrary to the actual and factual position atf the spot. As such, the learned Tribunal has fallen into error by concluding that the accident, in question, had taken place, due to the contributory negligence of deceased Sachin Thakur.

In view of the discussion made above, this Court has no hesitation to hold that the accident, in question had taken place due to the rash and negligence of respondent No.2. Moreover, registration of the FIR is not sine qua non for seeking the amount of compensation, under the M.V. Act. The accident, in question, had taken place due to the rash and negligent driving of the offending vehicle, by respondent No.2, which, the petitioners have successfully proved/probabilized, from the statement of PW3.

Consequently, the findings recorded by the learned Tribunal, by virtue of which, the deceased was held to be contributory negligent, in the accident, in question, are set aside.

So far as the prayer qua enhancement of the claim is concerned, it is no longer res integra that the endeavour of the Court/Tribunal, while deciding the claim petition, should be to grant ‘just compensation’ as the M.V. Act, is a beneficial piece of legislation.

Now, this Court shall proceed to ascertain the fact whether the amount of compensation, which has been awarded to the petitioners, falls within the definition of ‘just compensation’ or not.

The age of the deceased Sachin Thakur, at the time of his death has been pleaded as 18 years and he was a student. In the death certificate, issued by the competent authority, his age has been mentioned as 17 years. As such, the learned Tribunal has rightly taken his age as 17 years.

As per the petitioners, their son was a student and his income has been pleaded as Rs.10,000/ per month. In the absence of any evidence, the said statement cannot be accepted as gospel truth. When, the mother of deceased Sachin Thakur, appeared in the witnessbox, she tendered her affidavit in examinationinchief and deposed that her son was working as contract labour, in the fields of neighbour and he used to cultivate/grow seasonal vegetables.

The petitioners are from a rural background. In rural areas, young boy of 17 years ordinarily contributes to his family income, by way of manual work. In the agricultural based society, young men in the family are engaged in multifarious activities to support their household.

Considering the said fact, this Court is of the view that the learned tribunal, in the present case, has rightly assessed the earnings of Sachin Thakur, as Rs.7,500/ per month. As such, the said findings do not require any interference by this Court.

The learned tribunal has rightly given addition of 40% in the established income of the deceased towards future prospects. However, while deducting 50% income towards the personal expenses, had the deceased been alive, there seems to be a calculation error. Instead of Rs.5375, the same should have been 5250/. As such, the said findings are modified accordingly.

Learned tribunal has applied the multiplier of ‘18’, which, according to the decision of the Hon’ble Supreme Court in Sarla Verma versus Delhi Transport Corporation and Another, (2009) 6 Supreme Court Cases 121, is the appropriate multiplier.

In the present case, the learned Tribunal, has erred in awarding a sum of Rs.25,000/ under the head ‘loss of love and affection’. In view of the decision of Hon’ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, the petitioners are only entitled to compensation under the conventional heads, namely, ‘loss of estate’, ‘loss of consortium’ and ‘funeral expenses’. The increase of 10%, after every three years, has also been mandated.

In view of the decision of Hon’ble Supreme Court in Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others, (2018) 18 SCC 130, all the petitioners are entitled to the compensation, under the head ‘loss of consortium’.

The entitlement of the petitioners, thus, is ascertained as under:

Loss of contribution = `11,34,000/ (Rs.5250/x12x18)

Loss of estate = `15,000/

Funeral expenses = `15,000/

Loss of consortium = `80,000/( `40,000x2)

Total =`12,44,000/( `11,34,000 + `15,000 +`15,000+ `80,000)

Consequently, FAO No.503 of 2019, preferred by the petitioners, is partly allowed. The awarded amount is reduced from `12,96,000/ to `12,44,000/, along with interest at the rate of 7.5% per annum, from the date of filing the petition, till realization. The ultimate liability to pay the amount is of respondent No.1.

The award passed by the learned Tribunal is modified, in the above terms.

So far as FAO No.201 of 2020 is concerned, the same is dismissed.

Memo of costs be prepared.

Pending application(s), if any, are also disposed of.

Record be sent back.