Madhya Pradesh High Court
State Of M.P. And Anr. vs Smt. Kishori Paragniha And Ors. on 24 June, 1997
Equivalent citations: 1998ACJ575, AIR1998MP109, 1998(1)MPLJ245, AIR 1998 MADHYA PRADESH 109, (1998) 1 MPLJ 245, (1998) 1 TAC 921, (1998) 1 ACJ 575
Author: Rajeev Gupta
Bench: Rajeev Gupta
JUDGMENT S.K. Dubey, J.
1. State is aggrieved of the award dated 1-7-92 passed in Motor Accidents Claims Case No. 40/87 by First Additional Motor Accidents Claims Tribunal, Jagadalpur, Easier has filed this appeal u/Section 173 of the Motor Vehicles Act, 1988.
2. The circumstances giving rise to this appeal are thus : Deceased Vyas Narayan aged 35 years, employed as Sub-Engineer, drawing monthly pay of Rs. 1728.85 was going on his motor-cycle No. M.B.Y. 4108 with a pillion rider one Bholaram Awasthy, from the opposite direction a Jeep No. M.P.P. 3979 owned by State, driven by appellant No. 2 was coming on the fateful day i.e. 26-3-1987 which on turning did not remain in control due to bursting of tyre and failure of hreakes and dashed with the motor-cyclist, as a result of which hedied instantaneously. The legal representatives of the deceased filed an application u/Section 110A of the Motor-Vehicles Act, 1939 (for short the 'Act') to claim compensation of Rs. 3,08,000. The claim was contented on the ground that the accident was inevitable due to bursting of tyre and failure of breaks, therefore, no liability could be fastened on the appellants. In support of the defence, the appellants examined appellant No. 2 who was driving the Jeep at the relevant time. No. mechancial expert was examined or other evidence was adduced by the appellants to establish that the tyre was in road worthy condition. The Tribunal after appreciation of evidence adduced by the parties held that the accident was caused due to sole rash and negligent act of the Jeep driver. To award compensation the Tribunal estimated the dependency at Rs. 1000 per month, yearly Rs. 12,000, applying the multiplier of 16 worked out the compensation of Rs. 1,92,000, in that an amount of Rs. 5000 was added for pain and sufferings. Out of Rs. 1,97,000 a deduction of 20% towards lumpsum payment and uncertainties of life was made, thus, Rs. 1,57,600 was awarded as compensation with interest thereon at the rate of 12% per annum from the date of application till payment.
3. Shri A.S. Gaharwar, Panel Lawyer for the State submitted that the accident was inevitable as the tyre bursted because of a sharp stone came under it. On this appellant No. 2 applied brakes, but, the brakes also failed due to bursting of tyre. In the circumstances the vehicle did not remain in control and dashed with the motor-cyclist. Learned counsel further submitted that the motorcyclist also contributed to the accident as instead of blowing the horn, the motor-cyclist did not stop the vehicle and proceeded in the direction of the Jeep resulting in collision.
4. Shri H.B. Agrawal learned counsel for the claimants submitted that this Court in appeal would not interfere with the findings recorded by the Tribunal based on appreciation of oral evidence. No perversity or any special feature has been pointed out which has escaped the notice of the Tribunal. The appellants have not led any evidence to establish the plea that the tyre which got burst was in a road worthy condition. It is well settled that when such a plea is raised, the burden lies on the owner/driver of the vehicle to establish the defence. Counsel cited a decision of the Supreme Court in Minu B. Mehta v. Balkrishana Ramchandra Nayan, AIR 1977 SC 1248 and decisions of this Court in Sabira Begum v. Raipur Transport Co. Ltd., Raipur, 1986 ACJ 713, Jamila Begum v. Raipur Transport Co. Pvt. Ltd., Raipur; 1986 ACJ 837 and Sewaram alias Sewan v. Naphe Khan alias Asgar Beg ; 1987 ACJ 354. In support of cross-objections to enhance compensation learned counsel submitted that when multiplier method is adopted for working but compensation, it takes care of all heads, hence, no tump sum deduction could be made. A decision of this Court in Fizabai v. Nemichand , 1993 JLJ 437 was pressed into service.
5. Having heard counsel for the parties and on going through the record we are of the opinion that the appeal has no merit while cross-objections deserve to be allowed.
6. It is well settled that in order to succeed in a defence that the accident was due to a mechanical defect which was latent and not discoverable by the use of reasonable care, and therefore, may are not liable, the owner and driver of the vehicle involved in the accident have to prove that they had taken all necessary precautions and kept the motor vehicle in a road worthy condition and that the defect occurred remained hidden inspite of reasonable care and caution taken by them. See Minu B. Mehta's case (supra) and decision of this Court in Babi v. Sona Khan, 1996 MPLJ 988. To establish the defence appellants did not lead any evidence except the statement of the appellant No. 2 (NAW-1) who was driving the Jeep. This witness even did not state that the tyre which got burst was in a road worthy condition and the brakes were cheacked by him. The detect in brakes was not visible even after taking reasonable and due care like a prudent man. In such circumstances, in the absence of legal evidence, that the type was serviceable and the brakes were in order the plea of inevitable accident cannot be acceptable. That is the view of this, Court in Sabira Begum and Jamila Begum (supra), wherein it has been held that when accident occurs due to bursting of tyre and the tyre was good and road worthy condition, but, due to stones on me road the tyre bursted and the accident was inevitable, owner has to establish that the tyre was not old and worn out, but, was serviceable tyre that having not been established the owner was negligent in plying the bus. In Sewaram's case (supra) same is the view. Therefore, finding of the Tribunal that the owner and driver have failed to establish that the vehicle was in road worthy condition and the accident was caused due to the negligence of the applicants do not call for any interference.
7. Re. quantum : so far the estimation of dependency and working out compensation by applying the multiplier of 16, in our opinion, the Tribunal rightly worked out the compensation. However, the Tribunal committed an error in making a deduction of 20% from the said amount for lump sum payment and for uncertainties of life. It is well settled that when the Court or Tribunal applies multiplier method, which is more logical and sound, for calculating the compensation in case of a motor-accident, no deducion is permissible on account of lump sum payment as it takes care of all heads. A Division Bench of this Court in Fizabai' case (supra) following the decision in case of Nisar Fatima v. M.P.S.R.T.C., 1990 MPLJ 437 held that when compensation is arrived at by applying the principle of multiplier, it is wrong to make any kind of deduction. While choosing the multiplier itself, the figure chosen is far less than the number of years of remainder of working life of the deceased. That reduced figure itself taken care of imponderables. There is also the circumstance that with rising inflation year after year the value of the money goes on getting eroded. There is, therefore, no scope for making any kind of deductions while working out the figure of loss of dependency by applying the principle of multiplier.
8. True, the Tribunal has awarded Rs. 5,000 for pain and sufferings, but that amount could not have been awarded. However, that amount can be awarded to the widow towards consortium. Thus, the claimants would be entitled to total amount of compensation of Rs . 1,97,000.
9. At this stage, learned counsel for the State submitted that the interest be not awarded for the total priod spent in litigation as for the delay in disposal of the case before the Tribunal, the appellants cannot be made to suffer for no fault of their. Besides, this appeal was filed in the year 1992 which has come up for final hearing in June 1997, hence, for that also the appellants cannot be made responsible. Counsel cited a decision of this Court in Oriental Insurance Company v. Ramsingh, 1995 JLJ 342. In our view the submission of learned counsel for State deserves consideration, as we find from the record of the Tribunal, that the claimants closed their evidence on 27-6-1991 and the evidence of appellants non-applicants was closed on 22-6-1992. The award was passed on 1 -7-1992, against which the appeal preferred in the year 1992 came up for hearing in June 1997. For the delay so caused for no fault of the appellants, it will be unjust to burden the appellants with the interest for the total period spent in litigation. To say so we take support from the decision of this Court in Oriental Insurance Co. v. Ramsingh (supra). Therefore, we direct that the respondents/claimants would be entitled to interest at the rate of 12% per annum for a total period of six years.
10. Accordingly, we direct the appellants to deposit the amount of Rs. 1,97,000/- with interest at the rate of 12% per annum for a period of six years only, less the amount already deposited by the appellants within a period of 3 months from the date of supply of certified copy, failing which, the interest shall be payable at the rate of 15% per annum. On deposit the amount shall be disbursed to the respondents/claimants keeping in mind the guidelines laid down by the Supreme Court in The General Manager, Kerala State Road Transport Corpn. v. Ms. Susamma Thomas, AIR 1994 SC 1631 : (1994 AIR SCW 1356) and Lilaben Udesingh Gohel v. Oriental Insurance Co. Ltd., (1996) 4 SCC 608 : (AIR 1996 SC 1605).
11. In the result, the appeal fails and is dismissed. Coss-objections are allowed, award of the Tribunal shall stand substituted as indicated hereinabove. The respondents/claimants will be entitled, to costs of this appeal. Counsel's fee Rs. l000 pre-certified.