Madhya Pradesh High Court
Shantibai And 2 Ors. vs M.P.S.R.T.C. And Anr. on 17 January, 2002
Equivalent citations: III(2002)ACC214
Author: Deepak Verma
Bench: Deepak Verma
ORDER
1. The appellants/claimants have filed this appeal under Section 173 of the Motor Vehicles Act against the Award dated 10.3.1993 passed by First Additional M.A.C.T., Noemuch, Camp Manasa, District Mandsaur in Claim Case No. 54/ 1986, whereby dismissed the claim petition filed by the appellants for compensation for the death of Ghisalal on the ground that the claimants have failed to prove that the deceased Ghisalal died due to the injuries received in the accident and also on the ground that they have also failed to prove the rash and negligence of the driver, respondent No. 2 Shyamsunder, to claim compensation.
2. Briefly stated, the facts of the case are: That on 22.3.1985 at about 7.30 a.m. in the morning deceased Ghisalal was going from Hadi Pipliya to Manasa on a bicycle slowly, completely on his left side, the bus bearing registration number MPW-7178, belonging to respondent No. 1 M.P.S.R.T.C, coming- from opposite side which was driven by respondent No. 2 Shyamsunder, rashly and negligently came on wrong side and hit the deceased. The deceased received serious injuries and multiple fractures in whole of the body and thereafter he died. Matter was reported to the Police Station, Manasa. Initially deceased was admitted in Manasa Hospital from where he was shifted to District Hospital, Mandsaur and on 25.3.1985 he died due to the injuries. Thereafter the wife and minor son had filed the claim before claims Tribunal, claiming compensation, which was dismissed on the aforesaid two grounds.
3. We have heard Mr. S.S. Samvatsar, learned Counsel for appellants. None appeared for respondents till 4.00 p.m. despite several calls. We have also perused the record and carefully examined the evidence.
4. The claimant had examined P.W. 1 Shantibai, wife of the deceased, P.W. 2 Pradeep Kumar, and P.W. 3 Dr. R.J.P. Verma. The respondents had also examined D.W. 1 Shyamsunder, driver. Certified copy of post-mortem report, Ex. P/l of the deceased as well as the seizure memo, Ex. P/1C of the bus was also produced.
5. After careful examination of the evidence on record, we are of the opinion that this appeal deserves to be allowed. The Tribunal has not properly assessed and appreciated the evidence on record. P.W. 1 Shantibai is the wife of the deceased who was examined for the purposes of proving dependency, income and damages. P.W. 2 Pradeep Kumar, was examined as an independent witness before whom the accident had taken place. He has clearly stated in his statement that on the date of accident one cyclist was dashed by the bus bearing registration number MPW-7178 and had received injuries in the accident. P.W. 3 Dr. R.J.P. Verma who had performed the post-mortem clearly stated in his statement that the deceased had received multiple fractures and injuries which were possible to be received in a bus accident and were also sufficient to cause death.
6. We have also carefully examined the evidence of D.W. 1 Shyamsunder who has admitted in his examination-in-chief that one cycle rider was coming from the conductor side but due to entrapping his Dhoti in cycle he was dashed by a tar drum and fell down in a nearby culvert. Thereafter bus was stopped and he was taken to the hospital and was admitted there. It was admitted by D.W. 1 driver in his cross-examination that a criminal case under Sections 279 and 338, I.P.C. was registered against him and police had also arrested him, bus was also seized. Ex. P/l is the copy of the seizure memo.
7. From the aforesaid evidence and admission of D.W. 1 on record it is clear that there was an accident and the deceased died due to injuries received in the accident. But from the statement of D.W. 1 it is clear that the accident occurred due to the reason that his Dhoti which he was wearing was entrapped in the wheel of the cycle. If it was the case of the respondent Corporation, then at the most it may be a case of contributory negligence of both, the cyclist and bus driver. In fact this case should not have been dismissed by the Tribunal on the ground that the claimants have failed to prove the rash and negligence and the cause of death. From the evidence on record it is clear that the deceased Ghisalal died due to injuries received in the aforesaid accident and that too due to the rash and negligent driving of the bus and also due to his own negligence. We, therefore, set aside the finding recorded by the Tribunal and hold that it is a case of contributory negligence of the parties and accordingly the claimants are entitled for 50% of compensation.
8. At the time of accident, the age of the deceased was 24 years, as per the post-mortem report. P.W. 1 wife of the deceased has stated that the deceased was earning Rs. 15,000/- per year. Though there is no documentary evidence on record but her statement has not been challenged by the opposite party, therefore, we have no reason to disbelieve the same. Normally a labourer an earning member in the family is expected to earn minimum Rs. 1,500/- per month i.e. about Rs. 50/- per day.
9. Therefore, looking to the evidence of P.W. 1 Shantibai on record, income of the deceased is taken as Rs. 15,000/- per year. If 1/3rd amount is deducted towards his personal expenses, the total income would come to Rs. 10,000/- per year. Looking to the age of the father of the deceased, who is alive and aged about 50 years, multiplier of 15, from all angles shall be proper. Thus, the total amount of compensation would then come to Rs. 10,000 x 15 = Rs. 1,50,000/-. Therefore, the claimants are entitled for a sum of Rs. 1,50,000/- towards total compensation but looking to the contributory negligence, they are only entitled for 50% i.e. Rs. 75,000/-. The claimants are also entitled for a sum of Rs. 2,000/- towards funeral expenses and Rs. 5,000/- for consortium and also interest on the aforesaid amount @ 9% p.a. from the date of this judgment. Out of this total amount of compensation Rs. 82,000/-, a sum of Rs. 25,000/- be paid to the appellant No. 3 who is the father and Rs. 32,000/- to appellant No. 1, who is wife and Rs. 25,000/- be deposited in the name of minor appellant No. 2 in F.D.R. in Nationalised Bank payable to him on attaining majority with interest. The appellants are not entitled for interest from the date of award or from the date of filing of application because the claim petition was filed in the year 1985 and statements of witnesses were recorded in the year 1991. At the stage the learned Counsel for appellants concedes that looking to the overall conduct of the appellants, as well as the financial condition of the respondent Corporation they are not entitled for interest from the date of filing of the claim petition. Counsel's fee Rs. 500/-, if certified. Record be returned.