Tamarajdhwaj Dahayat and Another vs Ramvaran Patel and Others

K.S. Chauhan, J.—These appeals have been preferred being aggrieved by the award dated 18.11.2005, passed by Motor Accidents Claims Tribunal, Jabalpur in M.V.C. Nos. 72 and 64 of 2004 whereby the death claim petitions filed by the parents of Yuddhavir Dahayat and Ajay Mishra u/s 166 of the Motor Vehicles Act have been rejected.

The facts giving rise to these appeals in short are that on 31.12.2003 at about 11.50 p.m. Ajay Mishra and his friend Yuddhavir Dahayat were going on Hero Puch No. MP 20-KF 5714 to attend the marriage. This vehicle was being driven by Ajay Mishra and Yuddhavir Dahayat was pillion rider. As soon as they reached in front of Agriculture College, Jabalpur the driver of truck bearing registration No. MPJ 6381, respondent No. 1, parked his truck at middle of the road and the parking and sidelights were not on. Ajay Mishra could not see the truck because of sharp brightening of lights of vehicles passing through opposite side and moped dashed with the back side of the truck resulting into the death of Ajay Mishra on the spot and Yuddhavir Dahayat was badly injured and died in Government Victoria Hospital after 24 hours. Report was lodged at Police Station, Adhartal, wherein the Crime No. 2 of 2004 was registered against the driver of the truck and after usual investigation the challan was filed before the competent court.

Yuddhavir Dahayat, aged 22 years was earning Rs. 6,000 per month from Laxmi Gour Marble Pvt. Ltd., Salimnabad. The parents of Yuddhavir Dahayat filed the claim petition u/s 166 of the Motor Vehicles Act claiming the compensation of Rs. 30,61,000 for the death of their son in the motor accident.

Ajay Mishra, aged 21 years was studying in BCA I year. His parents filed the claim petition for awarding compensation of Rs. 43,20,000 with interest thereon.

The respondent Nos. 1 to 4 filed the reply disputing the claim and the liability mainly contending that the accident occurred due to rash and negligent driving of Hero Puch by Ajay Mishra. The driver of the truck was having valid and effective driving licence and the truck was insured with respondent No. 3 hence they are not liable to pay any compensation.

The respondent No. 3 also filed the reply disputing the claim and its liability mainly contending that this accident occurred due to rash and negligent driving of driver of Hero Puch. Ajay Mishra was having only the learning driving licence and Hero Puch was being driven in contravention of the provisions of insurance policy. The accident was not caused due to rash and negligent driving of truck, therefore, the insurance company is not liable for compensation.

The Tribunal recorded the statements of the witnesses during the course of inquiry and after considering their evidence came to the conclusion that the appellants have failed to prove their cases and rejected the same. Being dissatisfied with the award the instant appeals have been preferred u/s 173 of Motor Vehicles Act, 1988.

We have heard Mr. A.P. Pandey, the learned Counsel for the appellants and Mr. Shrawan Tiwari, learned Counsel for the respondent No. 3.

The learned Counsel for the appellants submitted that the Tribunal has not properly appreciated the evidence adduced by them and has committed an error by rejecting the claim petitions. On the other hand, the learned Counsel for respondent No. 3 supported the award and advanced the arguments that the Tribunal has rightly rejected the claim petitions of the appellants.

The main point for consideration in these appeals is that whether the Tribunal has committed any illegality in rejecting the claim petitions filed by the appellants.

We have gone through the entire record and evidence adduced.

There is no dispute that the death of Yuddhavir Dahayat and Ajay Mishra occurred in motor accident.

Pramod Singh Rajput, CW 3, has deposed that at the relevant time he was returning home after supplying the milk. One truck stopped at the road and the parking lights were not on, one Hero Puch was coming from Katni side in which two boys were riding. It was being driven in normal speed. That Hero Puch dashed the truck consequently the boys fell down. He himself went to police station to lodge the report. This witness is cross-examined at length but his testimony is not shaken on the material point.

Prahlad, CW 2, has also deposed that at the relevant time he was going to Suhagi from Jabalpur and on the way near Adhartal Tank the truck was stationed on half of the road. In cross-examination he has denied that the accident was caused by Marshal jeep passing at that time, however, he has admitted that Hero Puch was coming with high speed and on account of dazzling light of Marshal jeep that vehicle came under the truck.

Ramvaran Patel, NAW 1, driver of truck has deposed that he parked the truck at the right place and the parking lights were on. He has also filed the licence, Exh. D1. He has submitted in his cross-examination that the police has filed the challan against him.

On appreciation of evidence it is found that Pramod Singh Rajput, CW 3, has witnessed the accident. It is borne out from the oral and documentary evidence that the truck was not parked at the proper place and the parking lights were not on. At the same time it is also borne out that Ajay Mishra was also driving Hero Puch rashly and has contributed in causing this accident. We held that the driver of truck was negligent in not parking the truck at the proper place and keeping the parking lights on. The driver of Hero Puch was also negligent in driving it rashly. However, he could not guess the truck standing there on account of the dazzling lights of Marshal jeep passing there at that time. Hence we find 75 per cent negligence of truck driver and 25 per cent negligence of Hero Puch driver.

We have to determine the quantum of compensation in these appeals.

The appellant Tamarajdhwaj, CW 1, has deposed that his son Yuddhavir Dahayat was earning Rs. 6,000 per month by doing the work of a roller mason in Laxmi Gour Marble Pvt. Ltd., Salimnabad. He has submitted the certificate, Exh. P9, in this regard.

Rajendra Sharma, PW4, has deposed that he is the General Manager of that company. Yuddhavir Dahayat was doing the work of helper in the aforesaid company and was getting salary of Rs. 6,000 per month. He has issued certificate, Exh. P9, regarding the salary of Yuddhavir Dahayat.

On perusal of certificate, Exh. P9, it reveals that this certificate is issued on 1.2.2004 whereas the date of accident is 31.12.2003 except this certificate no other document has been produced showing that Yuddhavir Dahayat was regularly getting such pay from Laxmi Gour Marble Pvt. Ltd. but it has been established by evidence that Yuddhavir Dahayat was doing the service in that private company.

Keeping in view the material available on record we assess that Yuddhavir was getting salary of Rs. 4,000 per month out of which half of the amount he was spending on himself. Monthly dependency comes at Rs. 2,000, annual dependency Rs. 24,000. Since the Yuddhavir Dahayat, aged 22 years was unmarried and the claim application has been filed by his parents, therefore, the multiplier will be applied on the age of his parents. Keeping in view the age of the parents of the deceased the multiplier of 13 is applicable, the same is applied. By doing so the dependency comes at Rs. 3,12,000. The appellants are also entitled for Rs. 20,000 in customary heads such as funeral expenses, loss to estate and loss of expectancy of life. Thus total compensation comes to Rs. 3,32,000 (three lakh thirty-two thousand). This amount shall carry the interest at the rate of 7 per cent per annum from the date of filing of the claim petition till realisation.

Kashi Prasad Mishra, CW 1, has deposed that Ajay Mishra was 21 years of age. He was studying in Computer College in BCAI year. He has filed the documents relating to his education. No doubt Ajay Mishra was not earning at that time but in future he would have earned and supported his parents. The untimely death of Ajay Mishra has caused great hardship to his parents.

By keeping in view the entire material placed on record we also assess income of Ajay Mishra at Rs. 4,000 per month out of which deceased would have spent half of the amount on himself. The monthly dependency comes to Rs. 2,000, the annual dependency Rs. 24,000. Since Ajay Mishra was unmarried, therefore, the multiplier will be applied on the age of the parents. His father is of 53 years and mother 47 years, in this too the multiplier of 13 is applicable and the same is applied. By doing so the dependency comes at Rs. 3,12,000. Appellants are also entitled for Rs. 20,000 in customary heads such as funeral expenses, loss to estate and loss of expectancy of life. Thus total compensation comes at Rs. 3,32,000. As the contributory negligence of Ajay Mishra has been assessed at 25 per cent, therefore by deducting the amount of Rs. 83,000 from total amount of compensation the amount payable comes to Rs. 2,49,000 (rupees two lakh forty-nine thousand). This amount shall carry the interest at the rate of 7 per cent per annum from the date of filing of the claim petition till realisation.

Consequently, both the appeals are allowed partly. The impugned award passed by the Claims Tribunal is hereby set aside. There shall be no orders as to costs.