Indrawati vs Ramesh Kumar

R.L. Anand, J. 1. By this judgment, I will dispose of FAO. No. 486 of 1987 titled Indrawati v. Ramesh Ku-mar and others and FAO No. 262 of 1987 Ramesh Ku-mar v. Indrawati and others, as both these appeals have arisen from the award dated 9.1.1987 passed by the Court of Motor Accident Claims Tribunal, Rohtak, who, awarded a sum of Rs. 18,000/- by way of compensation to Smt. Indrawati widow of Shri Rajinder Singh, besides interest at the rate of 12% from the date of the filing of the claim petition till realisation.

It was also ordered by the Tribunal that Shri Ramesh Kumar shall pay 50% amount of compensation while 50% amount of compensation shall be paid by respondents Nos. 3 and 4 i.e. Shri Rameshwar Dass and the State of Haryana.

Smt. Indrawati through her appeal has made a prayer that the compensation may be enhanced while Shri Ramesh Kumar has filed the appeal that he is not liable to pay any compensation as awarded by the Tribunal. It may also be mentioned here that motion Bench dis- missed the appeal of Shri Ramesh Kumar vis-a-vis Smt. Indrawati vide order dated 12.5.1987.

It may also be mentioned here that the claim petition u/s 110 of the Motor Vehicles Act, was filed by Smt. Indrawati in the year 1986 and at that time she was pregnant and thereafter, she delivered a male child namely Deepak who shall be added as a co-appellant with her mother.

Brief facts of the case are that on 28.5.1985 deceased Rajinder Singh, husband of Smt. Indrawati, was coming from Rohtak in a Three Wheeler Tempo HYK-6881. When the Three Wheeler Tempo reached near the canal bridge from Rohtak side and was yet to cross the canal bridge, on the Rohtak-Sonepat Road, then a jeep bearing No. HYC 2875, came there. It was being driven by respondent Rameshwar Dass. The vehicle is owned by respondent No. 4, the State of Haryana. According to the claimant, the jeep was being driven in a rash and negligent manner. The driver of the jeep lost the control. It struck against the tempo in which the deceased was driving, as a result of which. both the vehicles came into contact. Right side of the jeep struck against the right side of the tempo. The deceased was sitting near the foot rest of the tempo and with the impact of the accident, he was thrown out from the tempo and received mulliple injuries. Shri Rajinder Singh died at the spot. According to the claimant, the accident took place due to rash and negligent driving of the driver of the jeep bearing No. HYC 2875. In the alternative it was pleaded by the claimant that in case the Tribunal comes to the conclusion that the drivers of both the vehicles are negligent then award may be passed against all the respondents jointly and severally. It is further alleged by the petitioner that deceased was employed as Stock Assistant in the Veterinary Hospital. He was about 33 years old at the time of his death and was getting a salary of Rs. 1800/- per month. Smt. Indrawati was pregnant at the time of the filing of the petition from the loins of the deceased and she was expecting a child. Further it was pleaded that in case of birth of the child he would be impleaded as the party to the main claim petition.

The notice of the claim petition was given to the respondents. It was contested by respondenis No. 1, 3 and 4. The name of respondent No. 2 was deleted by the trial Court as the tempo was not insured with respondent No. 2. Ramesh Kumar was the driver and owner of the Three Wheeler. He. admitted the occurrence but according to him, the accident took place on account of the negligence of the driver of the jeep. He prayed that the claim petition, if it is to be accepted, it should be accepted against Shri Rameshwar Dass, respondent No. 2 and the State of Haryana.

The stand taken up by the respondents No. 2 and 3 that the accident has occurred on account of the negligence of Shri Ramesh Kumar, respondent No. 1. The jeep was being driven at a very slow speed and it was on the correct side. On the way to Rohtak when the Government jeep crossed Bhalaut Distributary, some children were seen on the road side. On seeing the children, the driver of the jeep slowed down the vehicle and took it on the left side. In the meantime, a tempo was seen coming from the opposite side which was being driven in a rash and negligent manner. He brought the vehicle on the wrong side of the road and caused the accident. One passenger of the tempo was standing on the mudguard. Passenger was holding the luggage carrier with one hand and waiving his another hand. The passenger was under the influence of liquor. The driver of the tempo could not control the vehicle, as a result of which, the right side of the mudguard of the tempo struck against the right foot board of the Government jeep, as a result of which the passenger who was in standing position, fell down and he died at the spot. The passenger died as a result of his own negligence and the negligence of the driver of the tempo. Major J.S. Yadav, Xen, Mechanical Division, P.W.D. (B&R), was travelling in the Government jeep in connection with the discharge of his official duties and the matter was reported to the police.

A rejoinder was filed by the claimant in which she reiterated her allegations made in the petition by denying those of the written statement and from the pleadings of the parties, the Tribunal framed the following issues :-

Whether the accident in question took place due lo rash and negligent driving of respondent No. 1 and/or respondent No. 3, drivers of the tempo and the jeep ?OPP

If issue No. 1 is proved, to what amount of compensation, if any, is the claimant entitled to and from whom ? OPP

Relief.

The parties were given opportunities to lead evidence and on the conclusion of the proceedings the Tribunal held that the accident had been caused on account of the contributory negligence of both the drivers and, therefore, they are liable to pay the compensation equally. Under issue No. 2 the Court only assessed the dependency of Smt. Indrawati at Rs. 1200/-per year and by applying a multiplier of 15, awarded a compensation of Rs. 18,000/-. Not satisfied with the award the present two appeals have been filed. Smt. Indrawati has prayed for the enhancement of the compensation. On the contrary, Shri Ramesh Kumar prayed that the entire compensation should be paid by the Haryana Government and its driver Shri Ramesh-war Dass.

I have heard the learned Counsel for the parties and with their assistance have gone through the record of this case.

It may be mentioned here that the appeal of Shri Ramesh Kumar was dismissed vis-a-vis Smt. Indrawati by the Motion Bench itself but it was admitted only vis-a-vis respondent No. 2 Rameshwar Dass and the State of Haryana. Through this judgment I will determine two issues whether it is a case of contributory negligence and whether the compensation which has been awarded to Smt. Indrawati is just or not. I concur with the finding of the trial Court that this accident is on account of the contributory negligence of both the drivers. Therefore, 1 adopt the reasons of the trial Court on issue No. 1 and decide that the compensation shall be paid to be claimants in equal share by Shri Ramesh Kumar on one side and Shri Rameshwar Dass and State of Haryana on the other side, jointly and severally, Shri "Rameshwar Dass has already expired. Therefore, 50% of the compensation shall be paid by the State of Haryana.

With regard to the quantum of compensation, it will be appropriate for me if I reproduce paras No. 16 to 20 of the impugned award in order to appreciate as to whether the findings of the Tribunal on this issue can be sustained or not :-

"16. Now adverting to the second question of quantum of compensation, if any to be awarded to the petitioner, the statement of the petitioner is noteworthy. According to her, Rajinder Singh deceased was her husband. He was elder lo her by 5-7 years. He was employed as Stock Assistant in Veterinary Department. He was posted at Jal-behra, District Ambala, at the time of accident. She then stated that she was the only claimant of the deceased. She was married with the deceased about 10 years back, but no child was born out of his wedlock. She then deposed that the deceased, her husband, used to pay her about Rs. 1100-1200 per month out of his salary. Further in her cross-examination, she admitted that he is prep class pass and also a Diploma Holder of drawing i.e. Arts and Crafts. She stated that she has also been working on temporary basis as a teachress. Then, she denied the suggestion that her relations were strained with her husband. But, further she admitted that there had been quarrel between them and she had been living for more time at her parental house. She admitted that she sent relevant papers for getting pecuniary benefits of service on account of death of her husband in the acci-dent. She further admitted that her husband Rajinder deceased was addicted to liquor and so she did not use to stay with him. In her cross-examination, she further denied the suggestion that she has one son through the toins of Rajinder Singh deceased. In the last, it was also denied by her that she had got written in her petition that she was pregnant at the time of filing of this petition. However, this fact is mentioned in para 2 of the petition.

Further, on the point of quantum of compensation, Rajeshwar AW1, Clerk Animal Husbandry Department, Ambala, came into the witness box and deposed that on 28.5.1985 Rajinder Singh deceased was drawing his total salary at Rs. 989/-per month. Certificate Ex.A.1 has been placed on the file, in this behalf. In cross-examination, AW1 admitted that papers regarding giving the benefit to the widow of the deceased were under progress (process ?). Besides this, ex gratia is also given to the L.Rs of the deceased.

On the other hand, counsel for the respondents laid stress on the cross- examination of petitioner and then referred to the statement of RW5 Sukhdei wife of Raj Pal and submitted that in fact, mother-in-law and son of the petitioner are " also alive, but they have not been made party to the petition, by the petitioner knowingly and intentionally in orderto grab herself entire compensation amount to be awarded to her by the Tribunal. In this regard, it is noteworthy that it was admitted by the petitioner in her claim petition (para 26) that she was pregnant from the loins of the de-. ceased and a child was to be born in the very near future. It is strange enough that petitioner kept mum while she came into the witness box and did not say anything about the result of her pregnancy. In this connection, it becomes relevant when the respondents had suggested her that she had not mentioned about her minor son, allegedly born to her before her examination in this court on 14.8.1986. PW5 Sukhdei, who was summoned by the respondents and is wife of Rajpal, denied the suggestion that her son Rajinder Smgh (who is also son of Rajpal), died in vehicular accident. This witness feigned to be ignorant, perhaps she might have colluded with the petitioner. Tn this behalf, it was noted that her demeanour was like that of a clever lady. However, there is no cogent evidence on the file upon which it could be concluded that the petitioner has a son or that her mother-in-law is also alive. Therefore, it will be futile exercise to go into this dispute regarding any living LRs of the deceased.

18-A. Again, resuming to the submissions of learned Counsel for the petitioner, the petitioner has given the income of the deceased at Rs. 1800/- in the claim-petition at the time of his death. PW3 (petitioner), deposed that her husband used to pay to her Rs. 1100-1200 per month. Certificate Ex.A.1 produced by the petitioner and proved by AW 1 shows that total salary of the deceased was Rs. 989/- per month. Version of the petitioner. with regard to the salary or contribution by the deceased towards the petitioner is not convincing or based upon any cogent reasons. Further, it is admitted by the claimant herself that her husband deceased was also addicted to liquor and she used to reside at her parental house. All these facts go to show that there were strained relations of the petitioner with the deceased. It was further admitted by her in her cross-examination that there had been quarrel between them. The petitioner is a trained teachress as she is holding Diploma in Art and Craft and previously she had been working on temporary basis as a teachress. Her papers for getting the benefits from the department are also under process as stated by AW 1.

Thus, in view of the aforesaid facts and circum- stances of the case, it is not proved definitely on the file as to how much amount, out of his salary, the deceased used to pay to the petitioner. In as much, it is evident from the evidence that what the deceased used to earn, the same was burnt by him in taking liquor. This fact is admitted by the petitioner and so much so, on the day, he died in the accident, he was under the influence ofliquor as proved from the report of Chemical Examiner Ex.RY, It has been laid down in Full Bench authority of our own Hon''ble High Court in 1979 PLR I that compensation to be assessed is the pecuniary loss caused to the dependent by the death of the person concerned, and no compensation is to be assessed on any extraneous consideration like love, affection, mental agony or any such similar consideration. It was further observed that for the purpose of calculating the just compensation annual dependency of the deceased should be determined in terms of annual loss accruing to them due to the abrupt termination of life. For this purpose, annual earning of the deceased at the time of the accident and the amount out of the same which he was spending for the maintenance of the dependents will be the determined factor.

After taking into consideration all the aspects of the case in hand, it would be reasonable to assume that the deceased was contributing only Rs. 100/-per month towards the petitioner. Thus, annual dependency of the petitioner comes to Rs. 1200/-Age of the deceased has been given as 33 years in the petition and 35 years in the PMR Ex.RX. According to the petitioner, the age of the deceased was 37-38 years. The petitioner herself was 31 years at the time of her examination. No issue was born to the petitioner in 10 years of her wedlock. Thus, keeping in view the age of the deceased and the petitioner and after considering uncertainties of life and the widow may re-marry and may not be dependent on the earning of the husband, the suitable multiplier would be "15". Thus, the total compensation works out to be Rs. 1200x 15-Rs. 18,000/-(Rupees Eighteen Thousand only), together with interest at the rate of Rs. 12% per annum from the date of filing of the petition till its realisation. It is made clear that the amount of compensation shall be satisfied by respondent No. 1 to the extent of 50% and remaining amount of compensation by respondents No. 3 and 4, jointly and severally."

I have gone through the evidence recorded by the Tribunal and the brief facts are that deceased was working as a Stock Assistant in the Veterinary Hospital and he was earning Rs. 989/- as is proved by AW 1 Rajeshwar who categorically stated that on the date of accident deceased was drawing Rs. 989/- per month as total salary. Certificate A-1 has also been proved by this witness. In the cross-examination, it has also come that the benefit of gratuity, and Group Insurance is also given to the deceased which is to the extent of Rs. 5,000/-. Besides this ex gratia is also given to Legal Representatives of the deceased. The deceased was not qualified for the pensionable service but his dependents arc entitled to the family pension. Smt. Indrawati PW2 had proved the age of her husband as 39 yeais No doubt it is admitted by her thai deceased was in the habit of taking liquor and used-to quarrel with het Out that is no ground to hold that the claimant was not dependent and that the dependency of the claimant was very nominal.

Keeping in view the income of the deceased, I calculate the dependency of both the claimants i.e. Smt. Indrawaii and her minor child Deepak at Rs. 4007- per month and after applying a multiplier of 15, I award a sum of Rs. 72,000/- by way of compensation besides interest at the rate of 12% per annum from the date of the filing of the claim petition till payment. 50% of the total compensation shall be paid by Shri Ramesh driver and owner of the tempo and 50% shall be paid by the State of Haryana within three months from the receipt of the copy''of the order.

Resultantly, the appeal of Shri Ramesh Kumar is dismissed in toto while the appeal of Smt. Indrawati is hereby allowed. 50% of the compensation shall be deposited in the name of the minor son (Deepak) and 50% shall be paid to Smt. Indrawaii. Minor son will be able to get the amount from the Bank after attaining the age of majority.

Appeal allowed.