Rajasthan High Court - Jaipur
Chief Manager, R S R T C Kotpu vs Smt Manphooli And Ors on 17 September, 2013
Author: Arun Bhansali
Bench: Arun Bhansali
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR : J U D G M E N T : (1)- S.B. CIVIL MISC. APPEAL NO.759/2007 Chief Manager, RSRTC, Kotputli & Anr. vs. Smt. Manphooli & Ors. (2)- S.B. CIVIL CROSS OBJECTION NO.150/2009 Chief Manager, RSRTC, Kotputli & Anr. vs. Smt. Manphooli & Ors. Date of Judgment :: 17.09.2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Virendra Agarwal, for the appellants. Mr. Kailash Sharma ) for the respondents. Mr. D.K. Bhardwaj ) ----- BY THE COURT:
This appeal is directed against the judgment and award dated 28.11.2006 passed by Motor Accident Claims Tribunal, Kotputli ('the Tribunal'), whereby the Claim Petition filed by the claimants-respondents has been accepted and an award of Rs.3,15,800/- has been passed in favour of the claimants.
The brief facts may be noticed thus : an application seeking compensation of Rs. 63,45,000/- was filed by the claimants on 8.4.2005 with the averments that on 14.1.2005 at around 5:00 p.m. deceased Umrav was standing on the road when bus belong to the appellant-RSRTC, which was being driven by Rajendra Singh struck said Umrav, which resulted in his death. It was claimed that Umrav was 28 years of age and was involved in operating a camel cart and was also working in the agriculture fields and used to earn Rs. 9,000/-. The claimants were wife, five children and mother of the deceased Umrav.
The application was opposed by the Corporation and it was submitted that the deceased was travelling on the roof top of the bus and when the bus took a turn, he fell down, for which there is no responsibility as far as the appellant-Corporation was concerned. The Tribunal framed four issues and evidence was led by the parties.
After hearing the parties, the Tribunal came to the conclusion that the deceased was travelling on the roof top of the bus and he died on account of rash and negligent driving of the bus.
While dealing with the issue relating to award of compensation, the Tribunal came to the conclusion that age of the deceased could be taken at 28 years based on the postmortem report and took the minimum wages at Rs. 2,100/- and after applying multiplier of 16 awarded compensation for loss of income at Rs. 4,03,200/- and deducting 1/3rd towards personal expenses awarded Rs. 2,68,800/- and towards loss of love and affection, consortium, lookafter to the mother and funeral expenses awarded another Rs.47,000/- as compensation, which brought the entire compensation to Rs. 3,15,800/- and awarded interest @ 6% p.a. from the date of application.
It is submitted by learned counsel for the appellants that it is settled legal position that if a passenger travels on the roof top of the bus, there is contributory negligence of the said passenger and, therefore, the compensation awarded by the Tribunal deserves to be deducted on account of contributory negligence of the deceased.
Reliance was placed on R.S.R.T.C. vs. Hussain & Ors. : 2007 WLC (UC) 15 and D.B. Civil Special Appeal No.53/96 (R.S.R.T.C. vs. Shashi Kala Vyas & Ors.) decided on 12.12.2002, wherein both the Single Bench in the case of Hussain and Division Bench in the case of Shashi Kala Vyas have held 25% contributory negligence in the case of travel on the roof top.
On the other hand, learned counsel for the respondents-claimants submitted that the award passed by the Tribunal is on the lower side and cross-objection in this regard has been preferred by the claimants. It was submitted that the deduction of 1/3rd, multiplier of 16 adopted by the Tribunal and non-grant of future prospects is contrary to law laid down by the Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation : 2009(6) SCC 121 and Rajesh & Ors. vs. Rajbir Singh & Ors. : 2013 ACJ 1403 and consequently, submitted that the award impugned deserves to be enhanced adequately.
Replying to the submissions made by learned counsel for the respondent for enhancement of compensation, learned counsel for the appellants submitted that the award passed by the Tribunal by taking the income of the deceased is Rs. 2,100/- is essentially not based on any material and therefore, there is no question of any enhancement based on future prospects.
I have considered the rival submissions.
It is now not in dispute that the deceased Umrav was travelling on the roof top of the bus and in view of the law laid down by this Court in the case of Hussain and Smt. Shashi Kala (supra), the contributory negligence of the passenger, who travels on the roof top, irrespective of the fact whether he had obtained a ticket or was a gratuitous passenger, is taken as 25%. In that view of the matter, the compensation awarded to the claimants needs to be reduced by 25%.
Coming to the issue of cross-objection raised by the claimants. The deduction of 1/3rd by the Tribunal is apparently excessive and contrary to the law laid down by the Hon'ble Supreme Court in the case of Sarla Verma (supra) as the dependents on the deceased are seven and therefore, deduction to the extent of 1/5th only is permissible for personal expenses. Even the multiplier of 16 adopted by the Tribunal is also contrary to the said judgment of Sarla Verma, wherein for the age between 26 to 30 years, a multiplier of 17 is required to be adopted.
Coming to the issue of future prospects, the Hon'ble Supreme Court in the case of Rajesh & Ors.(supra) has clearly held that even in a case of self-employed person the theory of future prospects would be applicable and the claimants would be entitled to award of future prospects with reference to the age of the deceased and consequently, the claimants are also entitled to award of compensation for future prospects as well.
So far as the income of the deceased is concerned, the Tribunal though came to the conclusion that the deceased was not getting income of Rs. 9,000/- per month as claimed by the claimants but held that camel cart was owned by him and he used to earn through the said camel cart and has thereafter adopted the minimum wages at Rs. 2,100/- per month only. Keeping in view, the facts and circumstances of the present case, the income of Rs 2,100/- is just and proper and the same does not require any interference.
In view of the above, the compensation payable to the claimants in the present case would be Rs. 2,100 + 1,050 1/5th (Rs.630/-) - 25% (Rs.787/-) = Rs. 1,733/- x 12 x 17 = Rs. 3,53,532/-. The claimants would also be entitled to the amount for loss of love and affection etc. of Rs. 47,000/- awarded by the Tribunal, which does not require any interference alongwith interest @ 6% p.a. from the date of filing of application i.e. 8.4.2005.
In the result, the appeal and the cross-objection are partly allowed. The award passed by the claims tribunal is modified to the extent indicated hereinbefore. The amount of enhanced compensation be paid by the appellant-Corporation within a period of two months from today.
No costs.
(ARUN BHANSALI), J.
rm/-
All necessary corrections have been incorporated in the judgments/orders.
Rakesh Mathur PA