Chhayabai vs Anshul Impex Pvt. Ltd.

S.B. Shukre, J.—This appeal is directed against the judgment and Award passed on 07.3.2002 in Motor Accident Claim Petition No. 92 of 1996 by Member, Motor Accident Claims Tribunal, Chandrapur.

The appellants are the original claimants whereas respondents are respectively the owner, driver and insurer of the offending truck, one of the vehicles involved in the accident. Deceased Bandu, husband and father of the appellants 1 and 2 respectively, who was carrying on the business as a grocer, was proceeding by jeep bearing registration No. MHN-2357 from Wani to Ghughus on 24.9.1995. He himself was driving the jeep. When his jeep came near a spot on the road situated near filter tank, one truck bearing registration No. MH/31-7834 being driven rashly and negligently, suddenly appeared and there was a collision between these two vehicles. Result was that Bandu sustained grievous injuries and succumbed to those injuries on the spot. He was earning about Rs. 200/- per day and the appellants were dependent on his income. As the accident was due to rashness and negligence on the part of the truck driver, as claimed by the appellants, they filed a petition claiming compensation of Rs. 3,50,000/- from the respondents jointly and severally. The petition proceeded ex parte against respondent no. 1 and it proceeded against respondent no. 2 without his written statement.

It was only respondent no. 3-Insurance Company, which resisted the petition on merits. It was submitted that the accident was caused only due to fault on the part of the deceased and there was no fault on the part of the truck driver. It also denied the age and income of the deceased.

After considering the evidence available on record and hearing the rival parties, the learned Member partly allowed the petition finding that there was a contributory negligence to the extent of 70% on the part of the truck driver and 30% on the part of the jeep driver-deceased Bandu. Accordingly, the Tribunal granted compensation of Rs. 1,38,600/- after deducting 30% from the total compensation on account of 30% contributory negligence on the part of deceased Bandu. This amount was held to be payable inclusive of the amount on account of no-fault liability to the appellants by respondents 1 to 3 jointly and severally together with interest at 9% per annum by the judgment and Award passed on 7.3.2002. Not satisfied with the same, the appellants are before this Court in First Appeal.

I have heard learned counsel for appellants and learned counsel for respondent no. 3. None appeared for respondents no. 1 and 2, though duly served. Now, following points arise for my consideration:

(i) Whether the Tribunal was right in holding that deceased Bandu contributed to accident by his negligence, which was 30%?

(ii) Whether the compensation granted is just and proper?

Learned counsel for the appellants has submitted that there was absolutely no evidence brought on record by the respondents to show that there was any rashness and negligence on the part of deceased Bandu in driving the jeep involved in the accident. She submitted that witness no. 2 of the claimants, namely Pundlik (Ex. 51) was an eye witness to the accident and he has categorically stated that the accident occurred due to rashness and negligence on the part of the truck driver. She further submitted that the evidence of Pundlik has been totally ignored by the Tribunal and the Tribunal has recorded its finding as regards 30% contributory negligence of deceased Bandu only on the basis of assumptions and conjunctures.

Learned counsel for respondent no. 3 submits that the Tribunal has considered the admissions given by appellant no. 1 Chhaya (witness no. 1 for claimants) and witness no. 2 Pundlik together with the circumstantial evidence in the nature of spot panchanama vide Ex. 37 and, therefore, it cannot be said that the findings recorded in this behalf by the Tribunal are based upon no evidence. He submits that this evidence, if carefully considered, would rather show that the finding of 30: 50 contributory negligence ought to have been of 50% each on the part of both the drivers, but since Insurance Company has not challenged this finding, it would not press for any argument against the said finding recorded by the Tribunal.

Upon going through the impugned judgment and Award and also the evidence available on record, I find that the Tribunal has not committed any error in recording a finding that this was a case of contributory negligence on the part of the truck driver as well as deceased Bandu, and it was to the extent of 70% and 30% for truck driver and deceased respectively. The spot panchanama as well as admissions given by both the witnesses of the claimants would disclose that on the spot of accident there was a river bridge as well as railway crossing nearby and also some diversion on the road, and, therefore, it was expected on the part of the drivers of the vehicles using that road to exercise extreme caution and care while crossing the spot of accident. It is further seen from the spot panchanama vide Ex. 30 that presence of tyre marks of the jeep was noted by the police and panchas while drawing spot panchanama, while presence of tyre marks of the truck has not been noted. It is also seen from the spot panchanama that jeep of deceased Bandu had come towards right side of the road and the impact of the collision was mainly on the left rear side of the jeep. The road at the spot of accident was having width of only 10 feet and there was also a turning at the spot of accident. All these circumstances cumulatively would show that the jeep driver did not exercise as much caution as was expected of him while passing the road at the spot of accident which had a turning and which was not so wide. That was the reason why the jeep driver was required to apply the brakes suddenly, as can be inferred from tyre marks of jeep, whereas the truck driver was not required to do the same as he was already travelling at moderate speed, or otherwise tyre marks of the truck would also have been left on the road. But, at the same time, it appears that the truck was also not being driven by keeping it on the extreme left side of the road and that is how there was a collision between two vehicles. Had the truck been driven on the extreme left side of the road, the jeep driver would have got some space to make safe passage and possibly, the accident could have been averted or its severity could have been reduced. With such evidence on record, I do not think that any error in the conclusions drawn by the learned Member of the Tribunal regarding negligence of drivers of both the vehicles in causing of the accident, and that negligence being to the extent of 70% on the part of the truck driver and to the extent of 30% on the part of the jeep driver, could be found.

From the impugned judgment and award it is also noted that the contributory negligence on the part of the jeep driver has been conceded by the claimants themselves and that is why it has been mentioned in para 11 of the impugned judgment and award, that according to learned counsel for the claimants it was a case of negligence of 80: 20 of truck driver and jeep driver respectively. This is one more reason why no error could be found to have been committed by the learned Member of the Tribunal in recording a finding as regards contributory negligence and its percentage.

Learned counsel for the appellants has referred to me the case of Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, to support her argument that the Tribunal was in the wrong when it held that it was a case of contributory negligence when the evidence showed it to be otherwise. In the said case of Syed Sadiq, the finding about the contributory negligence of appellants was arrived at by the Tribunal only on the basis of the fact that the accident took place in the middle of the road and there was no other evidence to prove the contributory negligence, which finding was not upheld by Hon''ble Apex Court (para 28). These facts would distinguish themselves from the facts of the instant case and which have been discussed earlier. Facts of the instant case show that there is evidence available in this case and which has also been admitted by the claimants showing that there was a contributory negligence on the part of the jeep driver. Therefore, the observations of the Hon''ble apex Court in the aforesaid case of Syed Sadiq would be of no assistance to the appellants to establish their point of no contributory negligence on the part of the jeep driver.

The next contention of learned counsel for the appellants is that the Tribunal has wrongly selected the multiplier of 11 in this case, which ought to have been of 17 having regard to the age of the deceased which was 27 years at the time of his accidental death. Learned counsel for the appellants further submits that the Tribunal has not taken into account the increments to the income of the deceased and the compensation that should have been granted not only on account of loss of life but also loss of love and affection and funeral expenses. Thus, it is submitted on behalf of the appellants that substantial rise in the compensation should be granted by this Court, which has been vehemently opposed by learned counsel for respondent no. 3.

Learned counsel for respondent no. 3 submits that multiplier has been correctly selected but the income of the deceased has been wrongly taken into account to be at Rs. 75/- per day and his income should not have been more than Rs. 50/- per day considering the state of economy in the year 1995. He submits that, at the most, notional income of Rs. 18,000/- per year should have been taken into account and after deducting 1/3rd amount therefrom on account of personal and living expenses, the yearly dependency of the appellants should not have been taken to be more than Rs. 12,000/- per year.

It is seen from the impugned judgment and award that the income of deceased Bandu has been taken to be at Rs. 50/- per day for determination of dependency and thus the annual dependency of the appellants has been taken to be at Rs. 18,000/-. The Tribunal has already deducted 1/3rd amount as personal expenses from the daily income of Rs. 75/- of the deceased. Learned counsel for respondent no. 3 argued that total dependency in this case should not have been more than Rs. 12,000/- per year. I am afraid, at this stage, when no challenge is made to the finding of fact recorded by the Tribunal as regards annual dependency of the appellants, such submission cannot be considered at this stage. Therefore, this Court will have to accept the finding of fact as regards annual dependency of the appellants recorded by the Tribunal, which is of Rs. 18,000/- per year. Learned counsel for the appellants has submitted that to this annual dependency, further amount equivalent to 50% of the annual dependency on account of future loss of income must be added. For this submission, she has placed reliance on the decision in Syed Sadiq, supra, wherein the Hon''ble apex Court has held that the claimants would be entitled to 50% increment in future loss of income (para 20). Applying this ratio, I am of the view that the annual dependency of the appellants in this case ought to have been of Rs. 27,000/- and not Rs. 18,000/-. The appropriate multiplier, as settled by the Hon''ble apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, and as rightly submitted by learned counsel for appellants, should be of 17 having regard to the age of the deceased at the time of his accidental death, which was 27 years. Thus, the total dependency of the appellants would be (27,000 x 17) = Rs. 4,59,000.

Learned Member of the Tribunal has not given any compensation under the heads of love and affection, loss of estate and funeral expenses. Compensation on all these heads would be due to the appellant. It would be Rs. 10,000/- each for loss of love and affection and loss of estate and Rs. 2,000/- for the funeral expenses. Thus, the total compensation payable to the appellants comes to Rs. 4,81,000/-.

Learned counsel for respondent no. 3 has submitted that on this amount of compensation in no case interest at 9% can be granted as the accident is of the year 1995 when the prevailing rates of interest were not so high. With due respect, I disagree with him. In the year 1995, it is common knowledge, rates of interest were much higher and as the liberalisation of Indian economy took place, the interest rates on the Fixed Deposit Accounts came to be reduced and they were about 8 to 9% during the period starting from the year 2000 and onwards. Therefore, the rate of interest granted by the Tribunal, which is of 9%, appears to be just and reasonable in this case and there is no need to make any interference with the same. In the circumstances, I find that this appeal deserves to be partly allowed and the amount of compensation granted by the Tribunal deserves to be enhanced to Rs. 4,81,000/- From this amount, 30% amount would have to be deducted on account of contributory negligence of deceased Bandu, the driver of the jeep, which was one of the vehicles involved in the accident. Thus, the amount of Rs. 3,36,700/- would be the just and appropriate compensation payable to the appellants together with interest at 9% per annum from the date of petition till the date of final payment, and this amount would be inclusive of amount of Rs. 50,000/- already granted to the appellants on account of no-fault liability. The points are answered accordingly.

Thus, the appeal is partly allowed with proportionate costs. The impugned judgment and Award are hereby modified and substituted by the direction that the appellants shall be paid compensation of Rs. 3,36,700/- inclusive of the amount of Rs. 50,000/- on account of no-fault liability, together with interest at the rate of 9% per annum from the date of petition till the date of final payment by respondents 1 to 3 jointly and severally.