Allahabad High Court
U.P.State Road Transport Corp. Ltd. ... vs Smt. Shanti And Ors. on 3 August, 2010
Author: Devi Prasad Singh
Bench: Devi Prasad Singh, Anil Kumar
1 Court No. - 27 Case :- FIRST APPEAL FROM ORDER No. - 1121 of 2007 Petitioner :- U.P.State Road Transport Corp. Ltd. Through Its R.M. Respondent :- Smt. Shanti And Ors. Petitioner Counsel :- Akhter Abbas Hon'ble Devi Prasad Singh,J.
Hon'ble Anil Kumar,J.
Heard learned counsel for the parties and perused the record.
Appeal under Section 173 of Motor Vehicles Act has been preferred against the impugned award dated 19.07.2007 in Claim Petition no. 74 of 2004 passed by the Motor Accident Claims Tribunal, Barabanki.
On 07.11.2003, the deceased(Shatrohan) was coming from Bhitariya on his Motorcycle bearing registration no. U.P. 41/C 3611 and when he reached near Pucca Talab at about 4:30 p.m. within village Tulsipur, Police Station Safdarganj, District Barabanki, an U.P.S.R.T.C. bus bearing no. U.P. 50/F 1674 from Belthara Depot rashly and negligently driven buy driver dashed against the motorcycle of the deceased and in consequence thereof the deceased succumbed to injuries and died on the spot. The claimants who are the dependent of the deceased approached the Tribunal for giving compensation.
According to the respondents, the deceased was a grain merchant having monthly income more than Rs. 4,000/- per month made a claim for Rs. 8,45,500/-.
The tribunal recorded finding with regard to the accident occurred on 07.11.2003 at about 4:30 p.m. from the Bus No. U.P. 50/F 1674 and the factum of the accident was verified by Smt. Shanti Devi (PW-1) and Dinesh Kumar(PW-2) who were examined on behalf of the appellants.
2PW-1, Smt. Shanti Devi stated that the driver came on wrong side and collided with the motorcycle of the deceased causing instantaneous death of her husband, however she is not eye witness. Other witness Dinesh Kumar(PW-2) eye witness of the accident stated that he had seen the accident from his own eyes. He stated that while the deceased was coming on motorcycle from the side of Bhitariya suffered the accident. It was stated that driver of the Bus was driving the bus rashly and negligently resulting the accident in question. The deceased was riding the motorcycle alongwith minor girl and both had expired on the spot.
On behalf of the defendant driver, Awadhesh Pandey O.P.W.-1 admitted the accident stating that on 07.11.2003 at about 4:30 p.m. on Lucknow-Faizabad road accident occurred. He stated that he was driving the Bus on right side and when the bus reached near village Tulsipur, he noticed a strained truck on road which he tried to overtake and motorcycle driver also tried to overtake, hence the accident occurred.
From the evidence on record, there is no dispute about the accident by the Bus in question which belongs to the appellant. It appears that the Bus driver partially admitted that he tried to overtake the truck, in consequence to which the accident occurred.
Needless to say that while overtaking the truck, the bus driver was on right side and the motorcycle which was coming from the opposite direction suffered accident. In case of non- overtaking of truck by the bus driver, the accident could have occurred.
The submission of the counsel for the appellant with regard to the contributory negligence seems to be not correct because of the fact that when the accident occurred admittedly 3 the bus driver was overtaking the truck from right side resulting the accident in question. There appears to be no fault of motorcycle rider who suffered the accident because of the rash & negligent driving on the part of the bus driver while he was overtaking a truck.
The learned Tribunal had elaborately discussed the evidence on record with regard to the accident in question. The burden was on the appellant to prove that his case is covered by certain exception in the form of contributory negligence as the burden lies on the person to establish the fact which is in his or her personal knowledge. In case the appellant took plea that there was some fault on the part of the motorcycle rider then his case falls within the exception of contributory negligence and he has to lead evidence to establish this fact or incident which seems to have occurred. Moreover, in the present case, the driver of the bus himself admits that he was overtaking a truck by going on right side resulting the accident in question.
Other arguments advanced by the learned counsel for the appellant are with regard to the quantum of compensation awarded by the tribunal which had assessed the monthly income of the deceased as Rs. 2100/- per mensem and applied the multiplier of 17 keeping in mind the age of deceased as 30 years. Though the appellant's plea was that the monthly income of the deceased was Rs. 4,000/- per month as a grain merchant but Tribunal assessed the income at the rate of Rs. 2100/- per mensem.
The income assessed by the Tribunal does not seems to be excessive. It has been submitted by the appellant's counsel that the notional income should not be more than 15,000/- per annum and accordingly the assessment of income made by the 4 tribunal is excessive.
Learned counsel for the respondent has drawn our attention to the division bench judgment of this Court reported in [2009(27) LCD 1613] Vinay Kumar Agarwal and another Vs. United India Insurance Company and others where this aspect of the matter has been considered. Relying upon the Apex Court's judgment reported in AIR 2008 SC 1858 Laxmi Devi and others Versus Mohammad Tabbar and another where their Lordships of Hon'ble Supreme Court have applied the multiplier of 14 alongwith 6% interest where the notional income of the deceased was ascertained to Rs. 3,000/- per month being the multiplier as well as the amounts provided in Motor Vehicles Act is very old and Government of India should have revised the same. It is observed by the Supreme Court in the case of Laxmi Devi (Supra) that a daily wager working ordinarily does not get less than 100 rupees in a day. The tribunal's finding with regard to the deceased that his assessed income would be Rs. 70/- a day is neither excessive nor unreasonable.
No other ground has been raised by the appellant's counsel. The impugned award does not suffer from any illegality and infirmity. Appeal being devoid of merit and is dismissed.
Amount deposited in court remitted to the Tribunal forthwith. Rest amount, if any, in terms of compensation shall be deposited within two months before the Tribunal and tribunal may proceed in terms of the award.
03.08.2010 Krishna/*