Allahabad High Court
Gaura Devi vs Sardar Kundan Singh And Ors. on 4 February, 1988
Equivalent citations: I(1988)ACC429
JUDGMENT K.K. Birla, J.
1. This appeal has been preferred by Smt. Gaura Devi against the order dated 21-9-70 passed by the Motor Accident Claims Tribunal, Aligarh dismissing her claim.
2. Briefly state, on 12-2-71 Sri Umesh Chandra was coming from Aligarh to Sikandra Rao upon his Motor cycle No. U.S.N. 5195. Sri Jag-dish Prasad (PW 2) was riding on the pillion. At about 8.45 A.M. he reached at a distance of about 5 Km. from Sikandra Rao. A truck No. M.P.G. 9815 was coming from the direction of Sikandra Rao. There was head-on collision in which Sri Umesh Chandra died on the spot. His mother Smt. Gaura Devi had preferred the claim petition before the Motor Claims Tribunal, Aligarh. The deceased was about 21 years of age. He was a partner in the firm carrying on the Sugar manufacturing work. The truck was being driven by Sardar Keshav Singh (O. P. No. 2) and was owned by Sardar Kundan Singh (O.P. No. 1). The truck was insured in Oriental Fire and General Insurance Co. Ltd. According to the petitioner's case the truck was being driven rashly and negligently by the driver. It hit the motor cycle by swering to the right side and then dragged it towards its (of the truck) left side. According to the petitioner the income of the deceased was Rs. 1000/- per month. He had two unmarried sisters and also he was looking after the sugar manufacturing business. A claim of Rs. 2 lacs was preferred. The case was contested by the owner opposite party No. 1 and the Insurance Company O.P. No. 3 and not by the driver opposite No. 2. On the other hand the case of the opposite parties was that the truck was not being driven rashly and negligently, the deceased was driving the motor cycle rashly and with a great speed. He tried to overtake a Tractor with trolly and came on the right side of the road and bit the truck.
3. The claimant examined Jagdish Prasad pillion rider (PW 2) and Bbajan Lal (PW 3) about the incident who bad stated that the truck was being driven rashly and negligently and was swerving from one side to the other side, it hit the motor cycle when the motor cycle was on its left and then the truck dragged to its left side. On the other hand opposite parties examined Sardar Keshav Singh, driver as DW 1 who gave out the version of opposite parties already mentioned above.
4. The driver Keshav Singh was tried for the offence under Section 304-A I.P.C. He has been convicted by the trial court and appeal is pending against that order.
5. The learned Tribunal Court found Sri Bhajan Lal PW 3 as a got up witness. The presence of Jagdish Prasad on the spot is not disputed. According to the Tribunal he was an interested witness being an employee of Mahesh Chandra (brother of the deceased) and that these were inconsis-tences in his statement. He accepted the version given by the driver. The contention of contributory negligence was also not accepted by him because according to him the truck was being driven on its correct side with a reasonable speed.
6. On the question of quantum he found against the claimant. According to him about Rs. 40,000/- insurance amount has already been paid to the claimant. Apart from this the share of the deceased in the business assets had also been inherited and these amounts were more than the reasonable compensation. The learned Claims Tribunal therefore, dismissed the petition. Being aggrieved Smt. Gaura Devi has preferred this appeal.
7. The learned Counsel for the appellant has contended that the claimants evidence was wrongly discarded and in any case that the driver of the truck could have averted this collision and at least it was a case of contributing negligence by the drivers of both the vehicles. On the other hand it is contended by the learned Counsel for the Insurance Company that there was no rashness and negligence on the part of the truck driver and as such it was not even a case of contributory negligence, and the finding of the Tribunal is correct. It may be pointed out here that none has appeared on behalf of respondents No. 1 and 2. The Insurance Company can contest the quantum of the compensation and not the manner of the accident. However even if the contentions on behalf of the Insurance Company are taken into consideration.
After considering the material on record we are of the opinion that the accident was a result of contributory negligence.
8. The presence of Jagdish Prasad (PW 2) at the time of the accident is admitted. Pillion rider will normally be a person who will either be well known or in some manner connected with the driver of the vehicle. Therefore, the statement of Jagdish Prasad should have not been disbelieved because he was an employee of Mahesh Chandra (PW 1). Certainly driver Sri Keshav Singh (DW 1) was much more and highly interested witness as it was he who is alleged to have caused this accident and was himself an opposite party in the claim petition. He did not file written statement in the claim petition but appeared as a witness for opposite party No. 1. In fact it is his statement which has to be treated with more caution. Both the parties have led evidence and the question of owners of proof also did not remain material. In paragraph 12 of the judgment of the Claim Tribunal has observed "there are facts and circumstances on record which prevail upon me to agree with the learned Counsel for the contesting O.Ps. that what these two witnesses have tried to say is not the whole truth." On scrutinising the statement of Sri Keshav Singh (DW 1) we are of the opinion that, he too has not come with a dean treast and has not stated the whole truth. According to him the accident took place when Sri Umesh Chandra tried to overtake the Tractor trolly while driving with great speed. According to him the motor cycle hit the centre of the truck. In his cross-examination he has stated that when he first saw the motor cycle it was at a distance of 100 yard from the truck. He also stated that when he first saw the tractor trolly it was about 50 yard from the truck. According to his case the tractor trolly was ahead of the motor cycle. Therefore, it is clear enough that he should have seen first tractor trolly and not the motorcycle. He is, therefore, not stating the truth and sup-ressing the same. Apart from this, he saw a motor cycle coming behind the tractor trolly and then the motor cycle overtaking the tractor-trolly. Therefore, he could have very well anticipated that the motor cycle will come to the right side of the tractor trolly, therefore, it was the duty of the truck driver to be cautious and to have taken necessary precautions.
9. From the statement of the truck driver it comes out that he continued to drive the truck in the manner he was driving even after seeing that the motor cycle was overtaking the tractor trolly. According to him he was already driving on his left side and motor cycle hit the centre of the truck. In the circumstances given above it was his duty to have been cautious and alert when he saw the motor cycle overtaking the tractor trolly. He did not do so and thereby acted negligently. Therefore even if the version of the motor cycle overtaking tractor trolly is taken into account we are of the opinion that the accident could have been averted if the truck driver would have been cautious and not negligent. Therefore this appears to be a case of contributory negligence of the deceased and the truck driver.
10. It is admitted to Sri Keshav Singh DW 1 that some other persons including the cleaner were also sitting on the front seat by his side. They were less interested persons. They have not been examined on behalf of the opposite parties. This will raise an adverse inference. It may be pointed that a competent court, namely, criminal court has already found the truck driver to be rash and negligent. No doubt this judgment is not con-elusive or binding but it is relevant.
11. Considering the totality of the circumstances we are of the opinion that the accident was a result of the contributory negligence of the deceased and the truck driver which we aportion to be equally. The finding of the claim Tribunal to the contrary cannot be maintained.
12. As regards the quantum of compensation the Claims Tribunal has accepted that the Sugar industry was earning a profit of about Rs. 50,000/- per annum. Income Tax assessment was also filed in support. Sri Mahesh Chandra (PW1) has given the income of the deceased at Rs. 1000/-per month. This does not appear to be much inflated.
13. The Claims Tribunal was of the opinion that the claimant was not entitled to any compensation because she bad received about Rs. 40,000/- as insurance claim on the death of Sri Umesh Chandra (deceased) and that the assets of the share of Sri Umesh Chandra would have been about Rs. 1,33,000/- in the firm. Both these amounts put together are more than the reasonable compensation. In our opinion these norms for disallowing the compensation are not proper. The accetention of inheritence may be taken into consideration but it could not be a complete act the for the compensation which takes into consideration other facts as well including the loss of the life of the person. The contribution of the deceased towards further progress in the business has also to be taken into consideration. The deceased was a young man of 21 years of age. Sri Mahesh Chandra (PW 1) has stated that he exclusively used to superwise the aforesaid sugar industry. By his death the family was deprived of this supervision which would have resulted in the development of the business. He was unmarried and must have substantially contributed to the maintenance of the claimant as well. Sri Mahesh Chandra (PWl)as stated that the deceased used to spend his income on his mother. Even if this statement is taken with caution, in our opinion his contribution to the claimant would have not been less than Rs. 125/- per month. The claimant is still alive therefore her life ex-pectency can be easily to be for 20 years from the time of the accident. She would therefore, have been entitled to the compensation of Rs. 30,000/-. However the negligence of the driver has been found to be half only. The claimant will be entitled to Rs. 15,000/- as compensation. In our opinion the accident had taken place in 1971, the claim is being partly decreed in 1988 therefore it is not a fit case for any deduction on account of lump sum payment. She should also be allowed interest at the rate of six per cent per annum from the date of claim petition till the date of payment.
14. In view of the above discussion the order of the Claims Tribunal deserves to be set aside and the claim succeeds in part.
15. The appeal is allowed. The impugned order of the Claims Tribunal is set aside. The claim is partly allowed. The claimant is entitled to recover Rs. 15,000/-as compensation together with interest at the rate of 6% per annum from the date of claim petition till the date of payment from the opposite parties No. 1 and 2 which shall be realisable from the Oriental Fire and General Insurance Company, opposite party No. 3. There will be no order as to costs.