Karan Singh and Another vs Paramjeet Singh and Others

Manak Mohta, J.—This appeal is directed against the judgment and award dated 25.11.1995 passed by the Judge, Motor Accidents Claims Tribunal, Phalodi in M.A.C.T. Claim Case No. 153 of 1994, whereby the Tribunal has accepted the claim petition in favour of appellants and awarded Rs. 1,15,000 as compensation and directed the respondent No. 2 (insurance company of truck) to pay compensation along with interest at the rate of 12 per cent per annum from the date of filing of claim petition.

Briefly stated, the facts of the case are that on 25.5.93 at 2 p.m. near Roopana Jaitana (Devraj Nada) on Lohawat-Phalodi route, an accident took place between a jeep and truck. The jeep was proceeding towards Phalodi, which was being driven by Manoharlal and truck No. RRK 5365 was coming from Phalodi side, which was being driven by Paramjeet Singh at a high speed, rashly and negligently, as a result of which, both vehicles collided with each other. In the said accident Chhail Singh who boarded the jeep No. RJ 19-C 3329 near Jatawas Chauraha fell down and sustained injuries and died on the spot. At the time of accident, the deceased was 19 years old and he was doing masonry work and was earning Rs. 120 per day. The parents of the deceased filed a claim petition for loss of income of Rs. 10,80,000 and other damages under different heads; the total amounting to Rs. 14,90,000.

A reply was submitted on behalf of New India Assurance Co. Ltd. (insurer of the jeep), respondent No. 5, wherein it was averred that the truck was being driven by Paramjeet Singh at high speed, rashly and negligently, on account of which, accident took place. It was also stated that Manoharlal, respondent No. 3, was not under the employment of Gopi Ram (owner of the jeep), respondent No. 4 and at the time of accident, he was having no valid licence and was plying the jeep as a taxi without permit. Therefore, respondent No. 5 was not liable to pay any compensation amount and prayed that the claim petition may be dismissed.

Another reply was filed on behalf of National Insurance Co. Ltd. (insurer of the truck), respondent No. 2, in which, it was stated that until it is not proved that at the time of accident the truck No. RRK 5365 was going on the prescribed route of permit, no claim liability can be fixed, therefore, the respondent No. 2 was not liable to pay compensation.

Respondent Nos. 3 and 4, owner and driver of jeep No. RJ 19-C 3329 filed a joint reply stating therein that driver of the jeep, respondent No. 3, was having valid licence and the jeep was insured with respondent No. 5. It was denied that the jeep was being driven rashly and negligently. Compensation demanded by the claimants is exorbitant. It was alleged that the driver of the jeep made no mistake in driving the jeep whereas the truck was being driven rashly and negligently at a high speed, as a result of which, the accident took place. In such circumstances, respondents were not liable to pay any compensation to the claimants but both the owner and driver of the truck and the insurance company are liable jointly and severally to make compensation. They prayed that claim petition may be dismissed against them.

On the basis of pleadings of the parties, following issues were framed:

(Omitted as in vernacular)

The appellant, Karan Singh, in support of his claim, examined himself as PW 1 and other witness Bhagwan Singh, PW 2; and Ganga Ram, PW 3 and also produced Exh. 1 report; Exh. 2 charge-sheet against Paramjeet Singh; Exh. 3 F.I.R.; Exh. 4 site plan; Exh. 5 site inspection note; Exh. 6 furd surat-hal lash; Exh. 7 furd panch-nama; Exh. 8 seizure memo of the truck; Exh. 9 seizure memo of the jeep; Exh. 10 notice to the truck owner; Exh. 11 M.T.O. report of the jeep; Exh. 12 M.T.O. report of the truck; Exh. 13 jeep supurdgi documents; Exh. 14 truck supurdgi documents; Exh. 15 supurdginama; and Exh. 16 postmortem report. In defence, Manoharlal, the driver of the jeep was examined.

After hearing the parties, the learned Judge, Motor Accidents Claims Tribunal, Phalodi vide judgment and award dated 25.11.1995 held that the accident occurred due to rash and negligent driving of truck No. RRK 5365 and Chhail Singh died in the said accident and awarded Rs. 1,15,000 as compensation and directed insurance company of the truck, respondent No. 2, to pay the compensation along with interest at the rate of 12 per cent per annum from the date of filing of claim petition.

Being not satisfied with the amount of compensation as awarded by the learned Tribunal, the claimants-appellants have preferred the instant appeal for enhancement of the amount of compensation.

I have heard learned Counsel for the parties and have gone through the judgment and award, as also the record of the case.

During the course of arguments, it was submitted by the learned Counsel for the appellants that the learned Tribunal while assessing the loss of income due to untimely death of deceased Chhail Singh has not properly considered the evidence available on record and gave an erroneous finding with regard to the quantum of compensation. It was contended that on the basis of the evidence, it was held rightly by the learned Tribunal that accident occurred due to rash and negligent driving of truck No. RRK 5365 by its driver, Paramjeet Singh, respondent No. 1. It was argued that from the side of non-claimants, neither the driver nor the owner nor any witness from the insurance company appeared in the witness-box, as such there is no rebuttal from the other side. On the contrary, the driver of jeep Manoharlal appeared in the witness-box and stated that the accident occurred due to rash and negligent driving of truck. But the learned Tribunal has not given due weightage to the evidence of the claimants available on record with regard to the earnings of deceased. It was stated by Karan Singh, PW 1, that his son was earning Rs. 120 per day by doing masonry work and there was bright future chances of rise in his daily income. He was a young boy of 19 years of age and that fact finds corroboration by the post-mortem report, Exh. 16, in which the age of deceased has been shown to be 18 years. It was also submitted that as the deceased was the only son of claimants, they were dependent on his earnings. He has stated his age 45 years and of his wife 36 years at the time of accident. It was contended that the learned Tribunal has wrongly assessed the per day income of the deceased as Rs. 20 and has not applied suitable multiplier, which is against the record and against settled principles, is not sustainable. On these submissions, it was prayed that the judgment and award may be modified by reasonably enhancing the compensation amount and the appeal may be allowed.

On the contrary, it was contended by learned Counsel for the respondents that the age and income of deceased as well as that of the claimants have not been proved by any documentary evidence. It was urged that the deceased was engaged in such type of job, in which regular income was not expected. Learned Tribunal on the basis of material has rightly assessed the loss of income for the purpose of determining the compensation, thus, that should be maintained. It was also urged that there is no scope of further enhancement of compensation, as such the appeal itself may be dismissed.

I have considered the rival contentions placed by the learned Counsel for the parties and have perused the findings given by the learned Tribunal on each issue. The learned Tribunal on the basis of the material available on record, rightly came to the conclusion that the accident occurred due to rash and negligent driving of truck No. RRK 5365 by its driver, Paramjeet Singh. It is pertinent to note that driver of truck Paramjeet Singh, respondent No. 1, did not appear in the witness-box nor he has filed any written statement. Before the learned Tribunal, on behalf of the claimants, Ganga Ram appeared as PW 3. He was the person who was sitting on the front seat of the jeep, in which the deceased was sitting on the back seat. He has stated that with the prior permission of the driver of the jeep, the deceased sat in the jeep. He also stated that no fare was paid by them to the driver of jeep. Further he has stated that from the front side, truck No. RRK 5365 was coming at a high speed and in rash and negligent way, which hit the jeep, resulting in falling down of the deceased causing injury to him and later on he died on the spot. It is also revealed from the record that F.I.R. of the said accident was lodged by the driver of jeep Manoharlal. On his report, police inspected the site just after the accident and after carrying out thorough investigation, they also came to the conclusion that the accident occurred due to rash and negligent driving of the driver of truck No. RRK 5365. The police has filed charge-sheet against Paramjeet Singh, driver of truck, in the court. From the claimant''s side police report as well as other relevant documents have been produced and marked as exhibits. I have carefully seen that material. Thus, the finding on issue No. 1, i.e., the accident occurred solely due to negligence of truck driver as concluded by the learned Tribunal is to be maintained.

I have also considered the rival contentions with regard to the quantum of compensation. In this respect, from the side of claimants, Karan Singh (father of the deceased), PW 1, has been examined. He has stated that the age of his son was 19 years at the time of accident. He stated that his son was engaged in masonry work and was earning Rs. 120 per day. He has further stated that the deceased was his only son. He has stated his age as 45 years and his wife''s age has been stated as 36 years. He stated that due to untimely death of his son, his wife became mentally disturbed. He has further stated that whatever his son earned, he used to handover to him and they were dependent upon him. The family was being maintained by income of the deceased. The deceased studied up to 8th standard only and after that he left his studies because there was no source of income to maintain the family. Other witness, namely, Bhagwan Singh, PW 2, has also supported the version of PW 1 that the deceased was earning Rs. 100 to Rs. 125 per day. He is their nearby resident. He has also stated that the age of father of the deceased was 50 years and the age of mother was 47 years. Ganga Ram, PW 3, also supported the version of Karan Singh, PW 1. There is no rebuttal from the other side in respect of age and income of the deceased. The age of deceased is again fortified from the age shown in the post-mortem report, Exh. 16, wherein the age of deceased has been shown to be 18 years at the time of accident. Learned Tribunal while assessing the loss of income, has not properly considered the statements of witnesses and has assessed the income of the deceased to be Rs. 20 to Rs. 25 per day only. In my considered opinion, learned Claims Tribunal has not properly assessed the loss of income, the conclusion is not sustainable and requires modification. On the basis of the evidence available on record, looking to the nature of job, I consider Rs. 60 per day as the income of the deceased and out of that 1/3rd, i.e., Rs. 20 per day may be deducted towards his personal expenses. Thus, the remaining amount of Rs. 40 per day, the deceased would have paid to the claimants. It has come on the record that he was the only son of the claimants. It has also come on record that he left his studies to develop source of income in order to maintain his family. In this way, taking into consideration the loss of income to the claimants at the rate of Rs. 40 per day with the aid of multiplier of 15 as applied by the learned Tribunal, total loss of income comes out to be Rs. 2,16,000 (Rs. 40 x 30 x 12 x 15), that is just and reasonable. Further the learned Tribunal has awarded Rs. 7,000 towards general losses. Looking to the fact that the deceased was the only son of the claimants that amount is on the lower side, they have suffered loss of love and affection and mental agony, thus, that is enhanced to Rs. 15,000. In this way, the total compensation comes to Rs. 2,31,000 (Rs. 2,16,000 + Rs. 15,000), thus, it is enhanced by Rs. 1,16,000. Further, claimants will also be entitled to receive further interest at the rate of 7 1/2 per cent per annum on Rs. 1,16,000 from the date of filing of the claim petition. Admittedly, the truck No. RRK 5365 was insured with the respondent No. 2 at the time of accident and the learned Tribunal has directed respondent No. 2 to deposit or pay the awarded amount of compensation. The amount has been enhanced, thus holding the liability of the truck driver, owner and insurance company of the truck, it is further directed that respondent No. 2 to make payment or deposit in the Tribunal at Phalodi as determined aforesaid within 2 months from the date of the judgment after deducting any amount paid or deposited by them against the award.

In view of the aforesaid discussion, the appeal is partly allowed. The compensation amount is modified and enhanced to the extent that in place of Rs. 1,15,000 the enhanced amount of compensation, Rs. 2,31,000 is determined. Further on the enhanced amount of Rs. 1,16,000 claimants would be entitled to interest at the rate of 772 per cent per annum from the date of filing of the claim petition. Rest of the judgment and award is confirmed. The respondent No. 2 is directed to pay or deposit in the Tribunal at Phalodi the due amount along with interest as determined aforesaid within 2 months from the date of judgment, failing which, the claimants are entitled to recover the same. No order as to costs.