Bhagwana vs Savitri Devi and Others

S.S. Sodhi, J.—In an accident between the tempo HRR1740 and the truck HRR 107, Ram Chander who was travelling in the tempo and also the tempo driver were both killed. This happened on May 7, 1975 at about 8.30 p.m. near the Bahmanvas turning on the Rohtak-Gohana road.

It was the finding of the Tribunal that this was a case of contributory negligence with both the tempo driver and the truck driver being equally to blame. A sum of Rs. 21,000/- was awarded as compensation to claimants-they being the widow and three minor children of Ram Chander deceased.

In appeal, Bhagwana, the owner of the tempo sought to evade liability on the plea that the negligence here was entirely that of the truck driver. The material on record, however, warrants no such conclusion. The accident occurred when the tempo had come on to the main road, that is, the Rohtak-Gohana road from the link road joining it in the area of village Bahmanvas. It was no doubt the testimony of the claimants'' witnesses, namely PW 1 Raj Kumar, PW 2 Shiv Narain and PW 3 Dhup Singh besides that of RW 3 Raj Singh that the tempo had got on to the Rohtak-Gohana road and was on its correct side when the truck came on to its wrong side and hit into it, but the circumstances, as noticed by the Tribunal have a different tale to tell. In the first instance, it deserves note that the version, as given in the first information report, exhibit R/l, recorded on the statement of PW 2, Shiv Narain was that the accident occurred when the tempo had taken a turn on the main road, that is, the tempo had just entered the main road and was turning to its right when the accident occurred. This was the first version of the accident as given by Shiv Narain. When he came into the witness-box, however, he came forth with the other story, namely, that the tempo had already gone on to the road and was on its correct side when the truck hit into it. In the circumstances, the Tribunal rightly did not rely upon this contrary version, as deposed to by him and the other witnesses.

The main point to bear in mind in the present case is that admittedly, the tempo had come on to the main road from a link road and it was thus incumbent upon the driver of the tempo to ensure that the main road was clear before proceeding to enter upon it. There can be no manner of doubt that if such care had been exercised, this accident could perhaps have been avoided.

The most important circumstance against the plea of the Appellant here is provided by the report of the mechanic exhibit R/17 and indeed also the photographs on record showing damage to the truck on the left front side thereof and on the right side of the tempo. This damage to the two vehicles is cleariy inconsistent with the version that the tempo was on its correct side of the road when the truck went and hit into it. If that had been the case, the damage would have been on the right front side of the truck and not on its left. This damage to the truck and its position after the accident, as shown in the photographs, is in consonance with the accident having occurred when the tempo was entering on to the main road and the truck sought to avoid hitting into it by swerving to its right.

Such being the situation, it cannot possibly be held that there was no negligence on the part of the driver of the tempo. The finding of contributory negligence must thus be upheld and affirmed.

Where the Tribunal fell in error was in computing the compensation payable to the claimants. Ram Chander deceased was employed as a peon with the Central Co-operative Bank, Rohtak. It has come in evidence that his emoluments were to the tune of Rs. 375/- per mensem. He was about 47 years of age at the time of his death. He died leaving behind his widow and three minor children. Considering the circumstances of the claimants and the deceased, in the context of the principles laid down by the Full Bench in Lachman Singh v. Gurmit Kaur 1979 ACJ 170 (P&H), the dependency of the claimants deserves to be assessed at around Rs. 3,000/- per annum, with a multiplier of ''16'', this would work out to Rs. 48,000/- which may be rounded off to Rs. 50,000/-.

The compensation payable to the claimants is accordingly hereby enhanced to Rs. 50,000/- (Rs. fifty thousand only), which they shall be entitled to along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded. Out of the amount awarded, a sum of Rs. 10,000/- each, shall be payable to the children of the deceased and the balance to his widow. The amount payable to the minor claimants shall be paid to them in such manner as the Tribunal may deem to be in their best interest.

Respondent Nos. 1, 2, 3 and 6 shall be jointly and severally liable for the compensation awarded. In the result this appeal and the cross-objections filed by the New India Assurance Company are hereby dismissed with costs while the appeal filed by the claimants is accepted.