Rajasthan High Court - Jodhpur
Indra & Ors vs Chothu Ram & Ors on 26 October, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 433 / 2000
1. Ramdev S/o Sh. Kesha Ram B/c Mali R/o Radha Kishanpuri,
Tehsil Sikar.
2. Chothu Ram S/o Sh. Khuba Ram B/c Mali R/o Radha
Kishanpuri, Tehsil Sikar.
----Appellants
Versus
1. Indra Wd/o Lt. Sh. Shyam Nath.
2. Rukhmani Devi Wd/o Lt. Sh. Kishan Nath.
3. Manju D/o Lt. Sh. Shyam Nath.
All B/c Jogi R/o Sardar Shahar District Churu. Respondent-
claimant No.3 is minor through her natural guardian mother Smt.
Indira, Respondent - claimant No.1.
4. Mohan Singh S/o Sh. Rameshwar Singh B/c Rajput R/o Near
Tantia Kuan, Sardar Shahar.
5. Ram Chandra S/o Sh. Bhanwarlal B/c Mali R/o Sardar
Shahar.
6. National Insurance Co. Ltd., Divisional Office, 12 th Residency
Road, Jodhpur.
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 359 / 2000
1. Indra Wd/o Lt. Sh. Shyam Nath.
2. Rukhmani Devi Wd/o Lt. Sh. Kishan Nath.
3. Manju D/o Lt. Sh. Shyam Nath.
All B/c Jogi R/o Sardar Shahar District Churu. Respondent-
claimant No.3 is minor through her natural guardian mother Smt.
Indira, Respondent - claimant No.1.
---Appellants
Versus
1. Chothu Ram S/o Sh. Khuba Ram B/c Mali R/o Radha
Kishanpuri, Tehsil Sikar.
2. Ramdev S/o Sh. Kesha Ram B/c Mali R/o Radha Kishanpuri,
Tehsil Sikar.
3. Mohan Singh S/o Sh. Rameshwar Singh B/c Rajput R/o Near
Tantia Kuan, Sardar Shahar.
4. Ram Chandra S/o Sh. Bhanwarlal B/c Mali R/o Sardar
Shahar.
(2 of 13)
[ CMA-433/2000]
5. National Insurance Co. Ltd., Divisional Office, 12th Residency
Road, Jodhpur.
---Respondents
S.B. Civil Misc. Appeal No. 434 / 2000
1. Ramdev S/o Sh. Kesha Ram B/c Mali R/o Radha Kishanpuri,
Tehsil Sikar.
2. Chothu Ram S/o Sh. Khuba Ram B/c Mali R/o Radha
Kishanpuri, Tehsil Sikar.
---Appellants
Versus
1. Mohan Singh S/o Sh. Rameshwar Singh B/c Rajput R/o Near
Tantia Kuan, Sardar Shahar.
2. Ram Chandra S/o Sh. Bhanwarlal B/c Mali R/o Sardar
Shahar.
3. National Insurance Co. Ltd., Divisional Office, 12th Residency
Road, Jodhpur.
4. National Insurance Co. Ltd., Divisional Office, 12th Residency
Road, Jodhpur.
---Respondents
_____________________________________________________
For Appellant(s) : Mr. Akshay Tiwari.
Mr. M.S. Soni for Mr. Rajesh Panwar.
For Respondent(s) :
Mr. Jagdish Vyas.
Mr. B.K. Bhatnagar.
Mr. Bharat Singh for Mr. Shambhoo Singh.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
JUDGMENT
26/10/2017 These appeals are directed against the judgment and awards dated 9.3.2000, passed by the Motor Accident Claims Tribunal, Churu ('the Tribunal'), whereby, the Tribunal has awarded a sum of Rs.2,93,200/- as compensation to Smt. Indra and others and Rs.1,50,000/- to Mohan Singh alongwith interest @ 12% per annum and has further ordered that if the compensation was not paid within a period of three months, the claimants would be entitled to interest @ 15% per annum. The claims have been (3 of 13) [ CMA-433/2000] dismissed against the driver, owner and Insurer of the Jeep.
Application for compensation was filed by the legal representatives of Shyam Nath, inter alia, with the averments that on 12.7.1996 at about 12:30 pm, deceased Shyam Nath and Mohan Singh alongwith Satyanarayan were traveling in jeep RNE-9078; when the jeep reached near Hariyasar Bus Stand, the offending truck RJ-23-G-391 being driven rashly and negligently collided with the jeep, resulting in grievous injuries to Shyam Nath to which he succumbed. It was claimed in the application that the jeep was being driven by Mohan Singh.
Another application for compensation was filed by Mohan Singh, inter alia, with the averments that the jeep was being driven by Shyam Nath and the accident occurred on account of rash and negligent driving by the driver of the offending truck.
Based on the said averments, both the claimants claimed compensation for death of Shyam Nath and injuries suffered by Mohan Singh.
The applications were contested by the non-claimants, while the owner and driver of the truck contested the allegations pertaining to the negligence of the driver of the truck, Mohan Singh filed reply and submitted that the jeep was being driven by Shyam Nath and that the accident occurred on account of rash and negligent driving by the driver of the truck. The owner of the jeep - Ram Chandra filed his reply and contested his liability by alleging that Mohan Singh was driving the jeep at the time of accident.
(4 of 13) [ CMA-433/2000] Based on the submissions, the Tribunal framed five issues. On behalf of the claimants, Smt. Indra, Isar Ram, Om Prakash and Prabhu Dayal were examined and Mohan Singh - claimant also appeared in the witness box. On behalf of the Insurance Company, one Indraj Singh appeared in the witness box.
After hearing the parties, the Tribunal came to the conclusion that the statements of Isar Ram, Omprakash and Prabhu Dayal were only in the nature of opinions, wherein, they had alleged that the accident occurred on account of rash and negligent driving by the drivers of both the vehicles and relying on the statement of Mohan Singh, who was the occupant of the jeep, came to the conclusion that the accident occurred on account of the sole negligence of the driver of the truck.
While assessing the quantum of compensation, the Tribunal had taken the age of deceased - Shyam Nath as 25 years, assessed his income at Rs.1,800/- per month, deducted 1/3rd towards personal expenses and applied multiplier of 9, after adding 100% towards future prospects, awarded a sum of Rs.2,59,200/- towards loss of income, Rs.1,000/- towards transportation, Rs.10,000/- towards loss of consortium, Rs.5,000/- to mother of the deceased for loss of love & care and Rs. 15,000/- was awarded for loss of love and affection to the minor daughter, Rs.1,000/- towards transportation expenses and Rs.3,000/- towards funeral expenses and in all a sum of Rs.2,93,200/- was awarded. The claimant - Mohan Singh was awarded a sum of Rs.1,50,000/- towards the injuries suffered by (5 of 13) [ CMA-433/2000] him.
It is submitted by learned counsel appearing for the appellant - Ramdev and Chothu Ram - owner and driver of the truck that the Tribunal committed grave error in coming to the conclusion that the accident occurred on account of rash and negligent driving by the driver of the truck only. It was submitted that the witnesses of the claimant themselves have given the statements that the accident occurred on account of contributory negligence of both the vehicles, which statements have been discarded by observing that the same were in the nature of opinions, which finding of the Tribunal is perverse and the same deserves to be set aside.
Further submissions were made that from the material available on record, it is apparent that the accident occurred on account of negligence of driver of the jeep and, therefore, the Tribunal committed error in holding the appellants liable for payment of compensation, which deserves to be quashed and set aside. In the alternative, it was submitted that at best the present case was a case of contributory negligence and, therefore, the award deserves to be modified in terms of the said aspect. Further submissions were made that the Tribunal committed error in awarding penal interest.
Reliance was placed on the judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited v. Keshav Bahadur : (2004) 2 SCC 370.
Learned counsel appearing for the claimant - Indra & others (6 of 13) [ CMA-433/2000] submitted that the Tribunal committed error in awarding a meager compensation, inasmuch as, only a multiplier of 9 has been adopted, though the age of the deceased was 25 years.
Further submissions were made that the amount awarded towards loss of consortium and loss of love & affection, is also meager, which also deserves to be enhanced adequately. Submissions were made that the Insurance Company of the jeep has been wrongly exonerated.
Learned counsel appearing for the respondent - Ram Chandra - owner of the jeep supported the award passed by the Tribunal. It was submitted that merely because few witnesses without any basis claimed that the accident occurred on account of rash and negligent driving by the drivers of both the vehicles, the same itself cannot lead to an inference that the accident occurred on account of any negligence of the driver of the jeep. With reference to the material available on record, it was submitted that the finding recorded by the Tribunal does not call for any interference.
Learned counsel appearing for the respondent - Mohan Singh supported the award impugned. It was submitted that the finding of the Tribunal is justified based on the statement of Mohan Singh, who was occupant of the jeep, which in absence of any other eye-witness available on record, cannot be discarded. Further submissions were made that the statements of AW/2, AW/3 and AW/4 have rightly been discarded by the Tribunal and, therefore, the award does not call for any interference.
(7 of 13) [ CMA-433/2000] Learned counsel appearing for the Insurance Company submitted that though the Tribunal has not dealt with the aspect of liability of the Insurance Company, inasmuch as, driver of the jeep was not found negligent, even if the driver of the jeep is found to have contributed to the accident, the Insurance Company cannot be held liable, inasmuch as, the policy in question is 'Act only Policy' and in either case neither the driver on account of his own negligence can claim compensation nor the occupant of the vehicle can claim compensation from the Insurance Company and, therefore, the award does not call for any interference and the Insurance Company cannot be held liable.
Reliance was placed on judgment of Hon'ble Supreme Court in the case of Oriental Insurance Company Limited (The) v. Meena Variyal & Ors. : MACD 2007 (1) (SC) 390.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
A bare perusal of the statements of the witnesses, who were available at the site of accident and had in fact helped the injured persons after the accident, reveals that they have in one voice stated that the accident occurred on account of rash and negligent driving by the drivers of both the vehicles. The said witnesses though appeared as witnesses of Indra Devi, who in her application had alleged that the accident had occurred on account of rash and negligent driving by the driver of the truck only, indicated in their statements that the accident occurred on account of contributory negligence of both the drivers.
(8 of 13) [ CMA-433/2000] Indra Devi alleged in her application that the jeep was being driven by Mohan Singh, which was contested by Mohan Singh. The Tribunal of course did not dealt with the said aspect, however, the said aspect has to be examined for the purpose of effect of contributory negligence on the payment of compensation, if any.
First Information Report, which was lodged by one Bhanwar Singh, indicates that he alongwith Satyanarayan went to Shyam Nath for condolence on account of death of his father and from there, he alongwith Satyanarayan and Shyam Nath, came back and went to Sardar Sahar in the jeep belong to Mohan Singh, which was being driven by Shyam Nath and he alongwith Satyaranayan and Mohan Singh were sitting in the jeep.
Three witnesses, who appeared in the witness box and were thoroughly cross-examined by the other side, specifically indicated that Shyam Nath was sitting on the side of the jeep and Mohan Singh was driving the jeep at the relevant time. They also indicated that the driver, who was driving the jeep, suffered injuries on his legs and that the driver Mohan Singh was stuck under the steering wheel of the jeep, AW/4- Prabhu Dayal also indicated that he even carried the amputed leg of Mohan Singh to the hospital.
It is not in dispute that on account of the accident, the legs of Mohan Singh got amputed. The owner of the jeep in his response to notice under Section 133 of the Motor Vehicles Act, 1988 though indicated that the jeep was being driven by Shyam Nath, however, in his reply before the Tribunal, he claimed that (9 of 13) [ CMA-433/2000] the jeep was being driven by Mohan Singh.
In view of the statements of the witnesses, who were available at the site of accident/at least after the accident occurred, who were extensively cross-examined by counsel for the Mohan Singh pertaining to the fact as to who was driving the jeep, which statements of the three witnesses, have been categorical and could not be shaken during the course of cross-examination, it is apparent that the jeep in question was being driven by Mohan Singh and not by Shyam Nath, though it appears that the owner had engaged Shyam Nath as driver, however, at the relevant time the jeep was being driven by Mohan Singh.
Coming to the aspect of negligence, which resulted in the accident, a look at the site map (Ex./4) as well as the statements of three witnesses pertaining to the location of the accident and the fact that the vehicles were being driven at high speed, it is apparent that the accident occurred on account of negligence of both the drivers of the vehicles.
The finding of the Tribunal that the statements of AW/2 to AW/4 were merely opinions, cannot be sustained, inasmuch as, presence of the said witnesses has not been doubted and that even in the cross-examination nothing could be brought on record to indicate that they were not in a position to assess the aspect of negligence and/or make the statements regarding the speed of the vehicles. The photographs which have been produced on record indicates that the jeep has been almost fully destroyed in the accident, which in view of the fact that the other vehicle was a (10 of 13) [ CMA-433/2000] truck, only indicates the speed at which the jeep was traveling as the pictures do not indicates any significant damage to the truck.
From the above state of evidence available on record, it is apparent that the accident occurred on account of rash and negligent driving by both the drivers i.e. the driver of the truck as well as the jeep.
The Tribunal only relied on the statement of Mohan Singh, however, as apparently Mohan Singh, who was driver of the vehicle, claimed himself to be occupant of the jeep and was not telling the full truth, the said statement could not have been relied on by the Tribunal for the purpose of assessing the negligent/contributory negligence and/or discarding the statements of AW/2 to AW/4, who otherwise were not interested witnesses.
In view thereof, the finding of the Tribunal pertaining to the negligence is modified to the extent that both the drivers of the vehicles were driving the vehicles rashly and negligently, had contributed to the accident, which contribution is assessed at 50% each.
Coming to the quantum of compensation as awarded to Smt. Indra for the death of Shyam Nath, deceased - Shyam Nath was a driver and was aged 25 years, the Tribunal has assessed his income at Rs.1,800/- per annum and deducted 1/3rd towards personal expenses, added 100% towards future prospects and applied multiplier of 9, the said assessment is contrary to the law laid down by Hon'ble Supreme Court in the case of Sarla Verma & (11 of 13) [ CMA-433/2000] Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 according to which, only 50% would be added towards the future prospects and looking to the age of the deceased and a multiplier of 18 is required to be adopted.
In view thereof, for the loss of income the claimants would be entitled to a sum of Rs.1,800 x12 x 18 = 3,88,300/-. Further award of amount towards loss of consortium to the wife to the deceased and to the mother of the deceased for loss of love & care are also on the lower side, which is enhanced to Rs.25,000/- towards loss of consortium and Rs.10,000/- towards loss of love & affection, transportation expenses and funeral expenses do not call for any interference.
So far as the award of penal interest is concerned, the same is contrary to the law laid down by Hon'ble Supreme Court in the case Keshav Bahadur (supra) and, therefore, the said direction deserves to be said aside.
So far as the liability of the Insurance Company is concerned, it is not in dispute that the policy in question is an 'Act only Policy', and as deceased - Shyam Nath was the occupant of the jeep, his liability is not covered in view of the law laid down by Hon'ble Supreme Court in the case of National Insurance Company Limited v. Balakrishnan & Anr. : (2013) 1 SCC 731.
Further even in the case of Mohan Singh - driver of the jeep, though the Insurance Company had charged premium of Rs.15/- for the driver, the claim having been filed under Section 166 of the Motor Vehicles Act, 1988, and the driver himself having been (12 of 13) [ CMA-433/2000] found negligent to the extent of 50% and qua the 50% negligence being of the other vehicle, as the owner cannot be held liable, the Insurance Company in that case also would not be liable for payment of compensation.
In view of the above discussion, the appeals are partly allowed. The award in MAC case No.28/1997 passed by the Tribunal is modified to the extent that driver - Chothu Ram and owner - Ramdev of the truck as well as Mohan Singh and Ram Chandra - driver and owner of the jeep would be liable to the extent of 50% each for making payment of compensation to Smt. Indra and others.
The award in favour of the claimants is enhanced from Rs.2,93,200/- to Rs.4,42,800/-. The claimants would also be entitled to interest @ 7% per annum on the enhanced amount of compensation from the date of application i.e. 10.7.1997. The enhanced amount of compensation awarded to the claimants would be payable to them in proportion as awarded by the Tribunal. However, looking to the time which has already elapsed from the date of accident, the amount would be paid in the saving bank account of the claimants.
The respondent No.6 - National Insurance Company Company Ltd., is exonerated from the liability of paying compensation.
In MAC Case No. 8/1998, claimant - Mohan Singh would be entitled to receive compensation as awarded by the Tribunal to the extent of 50% from the owner and driver of the truck i.e. Chothu (13 of 13) [ CMA-433/2000] Ram and Ramdev.
No order as to costs.
(ARUN BHANSALI)J. Sumit-3-4-5