Punjab-Haryana High Court
Smt. Shammi Malik And Ors. vs Amrik Singh And Ors. on 22 October, 1997
Equivalent citations: II(1998)ACC138, 1999ACJ434, (1998)118PLR53
JUDGMENT V.K. Jhanji, J.
1. This shall dispose of FAO Nos. 613 and 1418 of 199,6 as both these appeals arise out of award of the Motor Accident Claims Tribunal, Kurukshetra. The accident had taken place on 14.9.1993 at about 4 AM on G.T. Road in the area of village Dhantori, P.S. Shahbad, District Kurukshetra.
2. As set out in the claim petitions, the case of the claimants is that on 10.9.1993 the deceased, Adarsh Malik along with his wife, Shammi Malik and son, Master Ashish Malik left for Vaishno Devi in Maruti car No. DL-3CA-2986 driven by deceased, Suresh Kumar. On 14.9.1993, Adarsh Malik, Smt. Shammi Malik and Master Ashish Malik and driver, Suresh Kumar started their journey for Delhi in the aforesaid car. The car was being driven by Suresh Kumar at a very moderate speed. Adarsh Malik was occupying the front left seat, whereas Smt. Shammi Malik and Master Ashish Malik were occupying the rear seat. At about 4 A.M. when their car reached near village Dhantori at a distance of 10/11 kms from Shahbad towards Delhi, truck No. HRF-5269 driven by Amrik Singh came at a very high speed and without blowing any horn and giving any signal, overtook the car very rashly and negligently, as a result of which the driver of the Maruti car slowed down the speed and took the car towards his extreme left side, but in the meantime, Amrik Singh all of a sudden and without giving any indication, applied the brakes of truck, as a consequence of which the maruti car rammed into the truck and the entire car came under the truck. As a result of the accident, Adarsh Malik and driver, Suresh Kumar sustained serious injuries. Adarsh Malik succumbed to injuries at the spot whereas driver Suresh Kumar succumbed to injuries at PGI, Chandigarh on the same day. Smt. Shammi Malik and master Ashish Malik also sustained injuries. After the accident, Amrik Singh, driver of the truck, got down from the truck but after seeing the injured persons, fled away from the spot alongwith the truck, Smt. Shammi Malik had also become unconscious and was taken to Civil Hospital, Shahbad, for treatment. The case of the claimants was that the accident had taken place on account of negligence of Amrik Singh who was driving the truck in a reckless manner, rashly and negligently without adhearing to the traffic rules and regulations. The claimants alleged that Amrik Singh, driver of truck, was in the employment of Teja Singh and Mohinder Singh and the vehicle (truck) was insured with National Insurance Company Limited. Two claim petitions were preferred; one by Shammi Malik, Master Ashish Malik, Narain Dass and Smt. Kaushalya Rani, i.e. widow, minor son, father and mother of the deceased. Adarsh Malik, while the second claim petition was preferred by Veena Devi, Munshi Ram and Smt. Lila Devi, i.e. widow, father and mother of deceased, Suresh Kumar, driver.
3. On contest by the respondents, the learned Motor Accident Claims Tribunal found that the driver of the car was responsible for the accident to the extent of 75 per cent and truck driver to the extent of 25 per cent. In the claim petition filed on account of death of Adarsh Malik, the income of Adarsh Malik was assessed at Rs. 7,500/- per month. Taking his personal expenses as 1/3rd, the dependency was worked out to Rs. 5,000/- per month, i.e. Rs. 60,000/- per year. After applying a multiplier of 13, compensation was assessed at Rs. 7,80,000/-. Besides this, Smt. Shammi Malik was held entitled to Rs. 5,000/- as compensation on account of loss of consortium. Since the Motor Accident Claims Tribunal was of the opinion that it was a case of contributory negligence, the claimants were held entitled to 25 per cent of the amount and therefore, it was held that the claimants were entitled to compensation of Rs. 1,96,250/-. This amount was rounded off to Rs. 2,00,000/-. Likewise, on account of death of Suresh Kumar, driver, the income of the deceased was assessed at Rs. 1,850/- and after taking 1/3rd as his personal expenses, dependency was assessed at Rs. 14,796/- per annum, which was rounded off to Rs. 15,000/- per annum. In his case as well as, multiplier of 13 was applied and on account of contributory negligence, claimants were held entitled to get only 25 per cent compensation, i.e. Rs. 50,000/-. The claimants in both cases have come in appeal.
4. The main controversy between the parties to the appeals is whether the accident was caused due to negligence of Suresh Kumar, driver of maruti car or it was caused due to negligence of Amrik Singh, truck driver, or in the alternative if both contributed, then what was the extent of liability of each of them. According to the counsel for the claimants, negligence was with the truck driver as he failed to take necessary steps to avoid the accident. Further according to him, before over-taking the car it was the duty of the truck driver to see whether any vehicle was coming from the opposite direction and it was also his duty to give some sort of direction before stopping the truck all of a sudden. On the other hand, counsel for the truck owners submitted that the learned Motor Claims Tribunal has rightly found that the accident took place due to negligence of car driver and he contributed to the extent of 75 per cent.
5. After hearing counsel for the parties and going through the record, I am of the view that the driver of the truck was solely and wholly responsible for causing the accident and it was on account of his rash and negligence driving that the accident took place in which two lives were lost. In answer to the allegations made in the claim petitions, the owner of the truck though denied that the truck driver was driving the truck rashly and negligently, but admitted that he over-took the car and immediately after over-taking, some other vehicle was seen coming from the opposite direction in a zig-zag manner and the truck driver in order to avoid the accident slowed down and took the truck on the left hand side. They further stated that the truck driver had given indication but the driver of the car did not take care of the same and struck the car against the rear portion of the truck. Amrik Singh, driver, appeared in the witness box as R.W.1 and in his examination-in-chief reiterated the stand taken by his employer. He however, admitted that after the car struck against the back portion of truck; he alighted from the truck and saw the occupants who received multiple injuries. He conceded that on seeing the injured he ran away from the place of occurance out of fear. In his cross-examination, he admitted that when he over-took the car, the speed of the car was slow. He also admitted that when he spotted a truck from the opposite direction at a distance of about 100 ft. and felt that there is possibility of impact between the two trucks, he in order to avoid the accident applied brakes immediately but did not blow any horn nor gave any indication. He further admitted that he had taken his truck to the left just before the accident took place. From the perusal of his statement it stands established that Amrik Singh, truck driver, alone was responsible for the accident which could have been avoided if before over-taking he had taken care of noticing a truck coming from opposite direction in a zig-zag manner, besides seeing that there could be possibility of impact between the two trucks. In his statement, he has not stated that he gave any indication or signal before over-taking the car; rather from a reading of his statement it is crystal clear that immediately after over-taking, he saw a truck coming from the opposite direction being driven in a zig-zag manner and on seeing the said truck he immediately applied brakes without blowing any horn or giving any indication in that regard. The driver of the car had no means to ascertain that the truck driver would be stopping the vehicle all of a sudden. Regulation 6 of the Rules of the Road Regulations, 1989, provides that the driver of a motor vehicle shall not pass a vehicle travelling in the same direction if the driver ahead of him has not signalled that he may be over-taken and if his passing is likely to cause inconvenience or danger to other traffic proceeding in any direction. In this case, it is not the case of the truck driver that the driver of the car had given him signal that he may be over-taken. In fact, the truck driver should not have over-taken the car when he had noticed a truck coming from the opposite direction. It is also not a case of the truck driver that the car driver did not apply brakes or did not slow down the vehicle. Rather it is the case of the truck driver that the speed of the car was slow. A Division bench of the, Mysore High Court in K.N. Nithyanandh v. Mysore State Agro Industries Corporation by its Managing Director, Bangalore and Anr., AI.R. 1973 Mysore 314, in context with Regulation 4 (now Regulation 6), has held that the driver of automatically propelled vehicles, when attempting to overtake vehicles going ahead to them should wait for proper opportunity viz., slackness in traffic on the same road before doing so. They are duty bound to exercise sufficient care and caution by looking ahead and behind in order to ascertain that it would be safe for them to overtake such vehicle. A further duty is cast on them to give a proper signal to the driver of the vehicle ahead in order to indicate that they would be overtaking the vehicle and wait for reply signal from that driver permitting them to overtake and thereby indicating that road is clear and there would be no danger in overtaking. The evidence of RW.1, Amrik Singh, truck driver, makes it abundantly clear that he did not at all exercise any caution while overtaking the maruti car or while stopping his vehicle all of a sudden. In these circumstances, I have no hesitation in holding that Amrik Singh, truck driver, was not only rash in the manner of driving the truck while overtaking the maruti car but was also negligent in stopping his vehicle all of a sudden, thereby causing the accident.
6. The next question to be considered, relates to the use of correct multiplier for determining the compensation to be awarded to the claimants. Adarsh Malik was 32 years of age at the time of accident. He was employed as Assistant Manager with Madhya Pradesh Iron and Steel Company, New Delhi. He was a highly qualified man having bachelor's degree in Engineering, Post-graduate diploma in Engineering, M.B.A. from Delhi University and was also a law graduate. It has been contended by the counsel for the claimants that the Hon'ble Supreme Court in S. Chandra and Ors. v. Pallavan Transport Corporation, 1994(2) SCC 189, had applied a multiplier of 20 and the age of the deceased in that case was 42 years. It has been contended that in another case, namely, U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors., (1996-2)113 P.L.R. 537 (S.C.), the age of the deceased was 38 years and the Hon'ble Supreme Court had applied a multiplier of 18. On the strength of these two judgments, it has been contended that in the present case, considering the age of deceased, Adarsh Malik, at least a multiplier of 20 ought to have been applied. In the Motor Accident Vehicles Act, by Act 54 of 1994 Section 163-A has been inserted w.e.f. 14.11.1994 and it provides that notwithstanding, anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Second Schedule indicates multiplier in fatal accident and injury cases. A multiplier of 17 is indicated where the deceased is above the age of 30 years but not exceeding 35 years. I am of the view that there is no reasons as to why in the case of Adarsh Malik a multiplier of 17 should not be applied. Deceased, Adarsh Malik, had an income of Rs. 7,500/-per month and reducing the amount by 1/3rd in consideration of the expenses which the victim would have been incurring towards himself had he been alive, the amount of compensation would come to Rs. 5,000/- per month, i.e. Rs. 60,000/- per year. By applying a multiplier of 17, the total amount of compensation payable to the claimants would come to Rs. 10,20,000/-. Besides compensation, Smt. Shammi Malik is also entitled to Rs. 5,000/- towards general damage on account of loss of consortium. The claimants have already received a sum of Rs. 2,00,000/- and this, the remaining amount towards compensation would be Rs. 8,25,000/- (Rs.8,20,000/- + Rs. 5,000/-. Smt. Shammi Malik, widow, shall get Rs. 3,85,000/- which includes Rs. 5,000/- awarded to her towards general damages, and Master Ashish Malik will get Rs. 4,00,000/-. As regards remaining amount of Rs. 40,000/-, the same shall be given to Narain Dass and Kaushalya Rani (father and mother of deceased, Adarsh Malik) in equal share, i.e. Rs. 20,000/- each. The claimants shall also be entitled to interest on the enhanced amount at the rate of 12 per cent per annum from the date of filing of the claim petition till its realisation. The liability of the respondents is joint and several, but the offending truck being insured, the payment shall be made by the Insurance Company alone. The amount of compensation awarded to master Ashish Malik shall be deposited in a fixed deposit, in nationalised bank, fetching maximum interest and shall be paid to Master Ashish Malik on his attaining majority. For the welfare/upkeep of the minor, Master Ashish Malik, Smt. Shammi Malik would be entitled to withdraw interest accrued thereon, every quarterly.
7. As regards compensation payable to legal heirs of deceased, Suresh Kumar, car driver, the learned Tribunal assessed the income of deceased at Rs. l,850/- per month and after taking 1/3rd out of the same, the dependency was assessed at Rs. 14,796/- per annum which was rounded off to Rs. 15,000/- per annum. The age of the deceased as found at the time of accident was 27 years and according to the Second Schedule, a multiplier of 18 is applicable and applying the same, compensation payable to the legal representatives of deceased, Suresh Kumar, would come to Rs. 2,70,000/-. Besides compensation, Smt. Veena Devi, widow, shall also be entitled to Rs. 5,000/- towards general damages on account of loss of consortium. The claimants have already received a sum of Rs. 50,000/- and thus, the remaining amount towards compensation would be Rs. 2,25,000/- (Rs. 2,20,000/- + Rs. 5,000/-). Smt. Veena Devi, widow, shall get Rs. 1,85,000/-, which includes Rs. 5,000/- awarded to her towards general damages, whereas Munshi Ram and Lila Devi (father and mother of the deceased) will get Rs. 20,000/- each. The claimants shall also be entitled to interest on the enhanced amount at the rate of 12 per cent per annum from the date of filing of the claim petition till its realisation. The liability of the respondents is joint and several, but the offending truck being insured, the payment shall be made by the Insurance Company alone.
8. Consequently, both the appeals, FAO Nos. 613 and 1418 of 1996 are allowed with costs and judgment of the Tribunal is modified to the extent indicated above. Costs are quantified at Rs. 5,000/- in each appeal.