Madhya Pradesh High Court
Smt.Mamta vs Bhav Singh @ Mansingh on 21 March, 2018
THE HIGH COURT OF MADHYA PRADESH
MA-956-2013
(SMT.MAMTA Vs BHAV SINGH @ MANSINGH)
Gwalior, Dated : 21-03-2018
Smt. Meena Singhal, learned counsel for the appellants.
Shri B.K.Agrawal, learned counsel for the respondent No.2.
This Misc. Appeal has been filed by the appellants/ claimants, who are legal heirs of the deceased, challenging the award sh dt.22.07.2013 passed in Claim Case No.40/2013 by the Motor Accident Claims Tribunal, Gwalior, on two grounds, namely;
e ad challenging the finding of the contributory negligence of the deceased driver, who was driving Dumper No. M.P.07 G.A.0674 from behind Pr due to sudden braking of vehicle No. M.P.07 G. 5747. It is submitted a that this finding of contributory negligence in the facts and hy circumstances of the case is perverse. Similarly, on the aspect of ad quantum the award is under challenge.
It is the case of the claimants that since the driver of the vehicle M No. M.P.07 G. 5747 had suddenly applied brakes to his vehicle, which of was moving ahead of the vehicle No. M.P. 07 G.A.0674, therefore, on account of sudden braking of the vehicle moving in front, the vehicle rt driven by the deceased Vinod Rajak had collided with said vehicle ou from behind and therefore the claims Tribunal erred in declaring it to C be a case of contributory negligence. Similarly, it is submitted that Claims Tribunal has considered income of the deceased to be h ig Rs.4,500/- p.m. which is on the lower side and therefore the H consequential calculations needs to be amended. It is also submitted that in the light of the law laid down by the Hon'ble Supreme Court in the case of National Insurance Company Vs. Pranay Sethi as reported in 2017 (13) SCALE 12 the claimants are entitled to 40% of the compensation at enhanced rate on account of future prospects which have not been taken into consideration by the Claims Tribunal.
It is further submitted that the deductions of 1/4 of the income towards personal expenses is incorrect and looking to the number of dependents of the deceased, 1/5th deduction should have been allowed.
Learned counsel for the appellants has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Archit Saini & Another Vs. The Oriental Insurance Company & Others as reported in MACD 2018 (1) SC 41. Similarly, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Dinesh Kumar J. Vs. National Insurance Co. Ltd. and others as reported in 2018 ACJ 535. Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others as reported in 2009 ACJ 1725 and the judgment of this High Court in sh the case of National Insurance Company Vs. Rinki and others as e reported in 2009 (1) MPLJ 536 so also on a Division Bench decision ad of this High Court in the case of Tulsi Ram Vs. Shahnawaz & others Pr as reported in I (2010) ACC 689 (DB). Similarly on the aspect of income, learned counsel has placed reliance on the judgment of a Calcutta High Court in the case of Chapa Ghosh (Roy) and others hy Vs. Cholamandalam MS General Insurance Co. Ltd. and another ad as reported in 2017 ACJ 2643. She has also placed reliance on the M judgment of Hon'ble Supreme Court in the case of Neeta and others Vs. Divisional Manager, Maharashtra State Road Transport of Corporation as reported in 2015 ACJ 598. Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of rt Jaya Biswal & Ors. Vs. Branch Manager, Iffco Tokio General ou Insurance Co. Ltd. & Another as reported in MACD 2016 (SC) 14. C Reliance has also been placed on the judgment of the Hon'ble Supreme h Court in the case of Kala Devi and others Vs. Bhagwan Das ig Chauhan and others as reported in 2014 ACJ 2875. H On the contrary learned counsel for the respondent No.2 submits that it has come in the evidence of Rohit Yadav (P.W.2) that he was working as Cleaner on the said Dumper No. M.P.07 GA 0764, which was being driven by the deceased. He further submits that the vehicle, which was ahead, was moving on its left hand side after leaving complete road, whereas the Dumper driven by the deceased was on the right hand side leaving a distance of 8-10 hands on the road. Then he says that Dumper of deceased Vinod was moving on its left hand side. He also admitted that he had seen the Dumper moving ahead five minutes prior to accident and distance between the two dumpers was only about five hands. Because of such minor distance, the Dumper driven by Vinod Rajak could not stop. In para 10 of his deposition, he has admitted that the Dumper which was moving ahead, was clearly visible through the headlight of the vehicle coming from behind and further admitted that since the distance between the two Dumpers was only of five hands, therefore, it was not possible for the deceased Vinod Rajak to have applied brakes. Reading such evidence, learned counsel for the respondent No.2 Insurance Company submits that evidence of the eye witness itself is sufficient to express the case to be sh that of contributory negligence.
e Learned counsel for the respondent No.2 has placed reliance on ad the judgment of the Hon'ble Supreme Court in the case of Raj Rani & Pr Others Vs. Oriental Insurance Co. Ltd. & Others as reported in MACD 2009 (SC) 345, judgment of the Division Bench of this High a Court in the case of The New India Assurance Co. Ltd. Vs. hy Shrimati Kusum Singh and six others decided in M.A.No.90/2002 ad vide judgment dt.11.5.2007 so also to the law laid down by this court M in the case of Bhavna and others Vs. Vineet and others as reported in 2014 ACJ 462 and that of Smt. Pamela Gambhir Vs. Smt. of Santosh Nayyar as reported in 2001 (3) T.A.C. 269 (P.& H.) to point out that if a vehicle moving ahead suddenly applies brake resulting rt accident with the vehicle coming from behind but if a distance ou between two vehicles is not maintained as per the Rules of the Road C Regulations 1989 (hereinafter shall be referred to as the Regulations of h 1989), then it will fall within the definition of contributory negligence ig and can not be said to be a case where the driver/deceased did not H contribute towards the accident. He has made specific reference to Rule 23 of the Regulations of 1989 and submits that safe distance between the two vehicles should be maintained.
In the above backdrop this court would like to first examine the aspect of contributory negligence as to whether under the facts and circumstances of the case, learned Claims Tribunal was justified in recording a finding of contributory negligence and attributing such contributory negligence applying the principle of proportionality. As far as Rule 23 of the Regulations of 1989 is concerned, it provides that the driver of a motor vehicle moving behind another vehicle shall keep a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop. No distance has been prescribed but nonetheless safe distance is to be understood from the context and this court would like to apply the same in the discussion to follow.
In the case of Archit Saini (supra), the facts were that Gas Tanker was standing in middle of the road without parking light. Car driver could not see the tanker due to flash light of on coming vehicles and under such facts and circumstances, Hon'ble Supreme Court held sh that after perusing the evidence of P.W.7, Site Map (Ex.P/45) and the e detailed analysis undertaken by the Tribunal, the approach of the High ad Court in reversing the conclusion arrived at by the Tribunal on issue Pr No.1 has been very casual, if not cryptic and perverse. It noted that it is well settled that the nature of proof required in cases concerning a accident claims is qualitatively different from the one in criminal cases hy which must be beyond any reasonable doubt. It further held that the ad driver of the Gas Tanker having parked his vehicle in a negligent M manner in the middle of the road without any indicator or parking lights, supports the version that Maruti Car coming from the opposite of side could not spot the Gas Tanker due to flash light of the on coming traffic from the front side.
rt Similarly, in the case of Dinesh Kumar J. (supra) collision had ou taken place between a mini truck and motor cycle on a two-way road C resulting in injuries to the motorcyclist. Both the courts below had h recorded a finding of contributory negligence to the extent of 40% on ig the premise that he failed to produce his driving licence, however, no H evidence was led by the Insurance Company about contributory negligence of motorcyclist and under such facts and circumstances, Hon'ble Supreme Court held that the Tribunal and High Court were not justified in holding that motorcyclist was guilty of contributory negligence.
Similarly in the case of Bimla Devi (supra), Hon'ble Supreme Court held that a strict proof of accident caused by a particular bus in a particular manner may not be possible to be rendered by the claimants; claimants were merely to establish their case on the touchstone of preponderance of probability; standard of proof beyond reasonable doubt could not have been applied and apparently there was no reason to falsely implicate the driver and conductor of the bus. Under such facts, it was held that driver of the bus was negligent and responsible for the accident.
In the case of Rinki (supra), Bench of this Court rejected the proposition that jeep was following scooter and thereafter driver of jeep overtook scooter and later on applied brakes suddenly causing accident. It held that such theory was arbitrary and Claims Tribunal had rightly arrived at the amount of compensation as reflected in the sh impugned award and dismissed the appeal.
e In the case of Tulsi Ram (supra), the facts were that non-
ad applicant though filed written statement denying averments made in Pr claim petition, but did not enter witness box, therefore, adverse inference was drawn against the respondent and the court held that a neither the principle of contributory negligence nor that of res ipsa hy loquitur would apply and finding of Claims Tribunal in regard to 50% ad contributory negligence was set aside.
M In the present case, facts are in different milieu. The fact of the matter is that claimants' witness Rohit Yadav (P.W.2) has admitted of that he had seen the Dumper moving ahead five minutes before. He has further admitted that the Dumper driven by the deceased was on rt the left hand side while that running in front was on the right hand ou side. Road was sufficiently wide to accommodate two vehicles on the C road. Thus, it is apparent that the deceased was trying to overtake the h truck moving in front and when he was overtaking the truck moving in ig front, he could not anticipate the gap which was required to be kept H while overtaking and therefore dashed from the right hand side of the vehicle coming from behind in the back of the vehicle moving in front causing in crashing of the driver's chamber resulting the death of the driver of the vehicle coming from behind. In such facts and circumstances, in the light of the law laid down in the cases of Smt. Kusum (supra), Bhavna (supra) and Smt. Pamela Gambhir (supra), the aspect of contributory negligence can not be denied and therefore this court is of the opinion that on the basis of evidence of Rohit Yadav (P.W.2) as well as spot map filed by the Insurance Company alongwith the list of the documents, which was not produced by the counsel for the claimants before the trial court, it is apparent that the finding in regard to contributory negligence has been rightly recorded by the Claims Tribunal and that does not call for any interference.
Second issue is in regard to dependency. Learned counsel for the appellants has submitted that 1/4th deduction has been wrongly made looking to the fact that seven persons were dependent on the deceased whereas 1/5th deduction should have been made.
Learned counsel for the respondent No.2 on the other hand sh submits that deduction allowed by the Claims Tribunal is correct, e inasmuch as appellant No.1 is wife of the deceased, appellants No.2 ad and 3 are children of the deceased, appellants No.4 and 5 are brothers Pr and sisters in law of the deceased, who can not be said to be the dependent on the deceased. Similarly, appellant No.6 is brother of the a deceased and there is no evidence to show that he was dependent on hy the deceased.
ad In the light of the law laid down by the Hon'ble Supreme Court M in the case of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and Another as reported in 2009 (2) T.A.C. 677 (S.C.) of and also in the light of the law laid down by this court in the case of Puniyabai (Smt.) and two others Vs. Sahadat Ali and two others as rt reported in 2015 (4) MPLC 146 (MP), this court is in agreement that ou dependency of 3/4th has rightly been arrived at by the Claims Tribunal C allowing deduction of 1/4th of the income. h As far as aspect of the income is concerned, accident had taken ig place on 15.12.2011. Driver is considered to be a skilled labourer.. H Therefore, even if the minimum wages as per the guidelines issued for the industrial labourers by the State of M.P. from time to time, are applied, then the amount of minimum wages will come to Rs.4825/- and not Rs.4500/- as has been applied for by the Claims Tribunal. Similarly, it is an admitted position that the drivers do get daily allowance and such allowance has to be added to the monthly wages. This has been accepted by the Hon'ble Supreme Court in the case of Jaya Jaya Biswal & Others Vs. Branch Manager, Iffco Tokio General Insurance Co. Ltd. & Anr. as reported in MACD 2016 (SC) 14 in an accident which had taken place on 19.7.2011. If this analogy is followed, then for all practical purposes and for the case of computation, monthly wages of the deceased will be Rs.4825 with Rs.100/- as daily allowance. It will come out to Rs.7825/-. Therefore, annual emoluments will come to Rs.93,900/-. Out of the aforesaid amount, if 1/4th amount is deducted for personal expenses of the deceased i.e. a sum of Rs.23,475/-, the disposable income will come out to Rs.70,425/-. Looking to the age of the deceased, multiplier of 17 is to be applied as has been applied by the Claims Tribunal, which will take the total to Rs.11,97,225/-. To this amount, 40% is to be sh added for future prospects in the light of the law laid down in the case e of Pranay Sethi (supra), which will take the total compensation to ad Rs.16,76,115/-. To this amount, a further sum of Rs.70,000/- needs to Pr be added for last rites, which makes the total compensation to the tune of Rs.17,46,115/-. Now 50% is to be deducted on account of a contributory negligence as this court has affirmed the finding of the hy contributory negligence recorded by the Claims Tribunal and therefore ad total compensation, to which the appellants are entitled, will come M come out to Rs.8,73,058/-. This amount shall carry interest @ 7% p.a. from the date of filing of the claim petition i.e. 2.1.2012. Out of the of amount so arrived, Rs.1,00,000/- shall be paid to the appellant No.7 Smt. Sukrati @ Sukhiya, mother of the deceased and the remaining rt amount shall be apportioned equally between the appellants No.1, 2 ou and 3, out of which a sum of Rs.1,00,000/- in cash be paid to the C appellant No.1 and remaining amount be invested in FDR of duration h of five, eight and ten years for appellants No.1,2 and 3 respectively. ig Accordingly, this appeal is partly allowed in the above terms. H The impugned award is modified to the aforesaid extent. Remaining terms of the award shall remain as it is. Parties to bear their own costs.
(VIVEK AGARWAL) JUDGE SP Digitally signed by SANJEEV KUMAR PHANSE Date: 2018.04.04 10:11:38 +05'30'