Managing Director, Himachal Road Trans. Corpn. and Another vs Sito Devi and Others

Sanjay Karol, J.—The present appeal arises out of an award dated 26.4.2004 passed by the Motor Accidents Claims Tribunal, Hamirpur, H.P., whereby compensation amounting to Rs. 3,65,000 was awarded in favour of the claimants and the liability to pay the same was fastened in equal ratio upon New India Assurance Co. Ltd. and the present appellants.

The claimants being the wife, mother and minor daughters of deceased Rakesh Kumar filed a claim petition u/s 166 of the Motor Vehicles Act (hereinafter referred to as ''the Act'') alleging that on 10.12.2000, deceased Rakesh Kumar was travelling as pillion rider on scooter bearing No. HP 20-2016, being driven by Sunil Kumar, respondent No. 4 herein and owned by Anant Ram Kaundal, respondent No. 5 herein. When they reached near a place called Bassi, District Hamirpur, on seeing the bus coming from the opposite side, respondent No. 4 who was driving the scooter in a rash and negligent manner lost control and the scooter fell down causing injuries on the head and other parts of the deceased Rakesh Kumar, who ultimately died due to the same.

The driver and owner of the scooter filed a joint reply admitting the fact that the scooter was being driven by Sunil Kumar and the deceased was the pillion rider at the time of the accident. However, negligence was denied and the fault was attributed to respondent No. 7 herein, the driver of the bus No. HP 22-569, who was allegedly driving the bus in a rash and negligent manner. The impact of the accident was such that the scooter was dragged for a distance of about 30 ft and the right leg of the deceased got crushed under the tyre of the bus.

New India Assurance Co. Ltd., respondent No. 6, herein filed a separate reply denying the negligence of the driver of the scooter and also disputing the validity and the effectiveness of the driving licence held by Sunil Kumar at the time of the accident.

Common reply was filed on behalf of Sher Singh, driver of the bus, owned by the Himachal Road Transport Corporation, pleading that the accident took place only due to rash and negligent driving of Sunil Kumar.

Based on the pleadings of the parties, the trial court framed the following issues:

(1) Whether the accident of bus No. HP 22-569 and the scooter No. HP 20-2016 leading to the death of Rakesh Kumar alleged pillion rider occurred due to contributory negligence and rash driving on the part of the driver of the scooter, respondent No. 1 and driver of bus, respondent No. 6 as alleged? OPP

(2) If issue No. 1 is held in the affirmative, to what amount of compensation, the petitioners are entitled and from whom? OPP

(3) Whether respondent No. 3 is not liable to indemnify the insured, respondent No. 2 for want of proper insurance contract? OPR3

(4) Relief.

Appreciating the material on record (oral and documentary), the court found that the drivers of both the vehicles, i.e., Sunil Kumar and Sher Singh were driving their respective vehicles in a rash and negligent manner and thus contributed equally in causing the accident. The court found that the deceased died as a result of an accident and taking his income to be Rs. 3,000 per month, the loss of dependency was worked-out to be Rs. 2,000 per month and considering the age of the deceased to be 28 years, by applying a multiplier of 15, the total amount of compensation was determined at Rs. 3,65,000. 50 per cent of the same was directed to be paid by the insurance company and remaining 50 per cent was directed to be paid by the appellants and the driver, Sher Singh, jointly and severally.

The claimants have also filed cross-objections which are registered as Cross-Objection No. 282 of 2005 and shall be separately dealt with.

I have heard the learned Counsel for the parties and also perused the record.

Finding of the court below with regard to the contributory negligence is purely based on conjectures and surmises, which is evident from the findings reproduced as under:

All these circumstances taken jointly would reflect that both drivers, i.e., Sunil and Sher Singh might have contributed jointly for causing the accident. But they attempted to put blame solely on one another for causing this accident. Rather it appears that Sunil, scooterist and Sher Singh, bus driver both were driving their respective vehicles rashly and negligently and contributed equally in causing this accident. Such conclusion in circumstance of this case would be legitimate for me to draw.

In order to determine as to whether Sunil Kumar and Sher Singh were driving their respective vehicles in a rash and negligent manner, the deposition of Sheelan Devi, PW 2; Lekh Raj, PW 3; Sunil Kumar, RW 6 and Sher Singh, RW 7, is to be considered.

As per the version given by PW 3, the scooter being driven by Sunil Kumar downhill was at a high speed and the accident occurred due to his fault. The scooter collided with the bus and fell down on one side and the deceased who came under the bus was dragged for quite a distance. Even though the presence of this witness at the spot has not been sufficiently explained but, however, the fact of the matter is that he is a friend of the deceased and does not personally know any of the drivers of the vehicles in question. He has no reason to depose falsely against them.

Sunil Kumar, RW 6, has totally blamed the driver of the bus Sher Singh. When he saw the bus being driven by respondent No. 7 at a high speed on the wrong side, he brought the scooter on the side of the road but, however, the bus collided his scooter causing the accident. In the cross-examination, he admitted that the bus was coming uphill and he was driving the scooter downhill. He admitted the total width of the road to be 15 ft and metalled portion 10 ft. He admitted that an F.I.R. under Sections 304-A and 279 of Indian Penal Code was registered against him for having driven the scooter in a rash and negligent manner. He denied the suggestion that he was driving the scooter in a rash and negligent manner which resulted into skidding of the scooter.

He has further deposed that he was on his way from Bhoranj Hospital when someone from behind shouted for him. He slowed down the scooter and when he turned around to see who it was, the deceased suddenly jumped and sat on the scooter.

As against his statement, statement of Sher Singh, RW 7 inspires more confidence. He has stated that when he reached at a place called Bassi, scooter being driven by Sunil Kumar came downhill at a very high speed in a rash and negligent manner due to the same Sunil Kumar lost control and tilted on one side and the scooter along with its pillion rider were dragged for a considerable distance. However, according to him, the scooter did not collide with the bus as seeing the speed of the scooter he had stopped the bus on one side of the road. The police came at the spot and after taking into account the prevailing situation, an F.I.R. was registered only against Sunil Kumar, as the accident had occurred due to rash and negligent driving of the scooter on his part.

To me this witness does not appear to be a truthful witness for the simple reason that he has materially contradicted the version of Sheelan Devi, PW 2, the mother of the deceased. According to PW 2, she was standing on the road at Bassi Chowk with her deceased son, when Sunil Kumar came on the scooter and asked her son to accompany him as he had wanted him to campaign for his mother in the elections. Reluctantly her son agreed, but when they went she saw Sunil Kumar driving the scooter in a rash and negligent manner towards Tarakwadi side and after some time learnt about the accident in which her son died.

Importantly, no evidence has been led by any of the parties to prove the outcome of the police case registered against Sunil Kumar. No photographs or site plan have been placed on record. From the admission of RW 6, at the place of the accident the road was approximately 15 ft, the bus was on the ascent and scooter was on the descent. Police case was registered only against Sunil Kumar. PW 2 has deposed that the driver left Bassi Chowk along with her son in the scooter which was being driven at a high speed. PW 3, the spot witness has also proved that Sunil Kumar was driving the vehicle at a high speed. Even if the scooter had collided with the bus that by itself would not prove the negligence of the bus driver Sher Singh. Importantly, there is no serious cross-examination to the statement of Sher Singh on the point that after seeing the scooter being driven at a high speed, he stopped the bus on one side of the road.

Therefore, in my view, the findings returned by the Tribunal holding the driver of the bus on the point of contributory negligence are contrary to the record and are based on mere conjectures and surmises. The same are set aside. It is held that it was Sunil Kumar alone who was driving his scooter in a rash and negligent manner and was responsible for the accident in which the deceased sustained injuries and later on died.

The appeal is allowed and the impugned award is modified accordingly.

Cross-Objection No. 282 of 2005:

In cross-objections, the claimants have referred to the decisions rendered in Sunil Kumar Vs. Ram Singh Gaud and Others, ; Kanhaiyalal Kataria v. Mukul Chaturvedi 2007 ACJ 1972 (SC); Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya and Others, and Lata Vs. United India Insurance Co. Ltd. and Others, to contend that the multiplier of 15 applied by the Tribunal is on the lesser side and also the income of the deceased for the purpose of dependency has been assessed on the lower side.

Ajaib Singh, PW 4 has proved the salary certificate, Exh. PW4/A and he has further deposed that after deduction, the deceased was receiving Rs. 3,900 per month and was entitled to the following perks:

(1) Furnished accommodation with free water and electricity.

(2) All medical facilities.

(3) Travelling and conveyance expenses.

But, however, from his statement, it is evident that the deceased was employed with the firm only till October 1999 and not thereafter.

The evidence does not disclose the latest income of the deceased as on the date of the death, which is December 2000. In the absence of any complete evidence, in my view, there is no further scope of enhancement of compensation. No doubt, the age of the deceased was 28 years but, however, one of the claimants, i.e., the mother of the deceased was 50 years of age. The multiplier of 15 has been rightly applied by the Tribunal. I see no reason to interfere with the same.

In Oriental Insurance Company Ltd. Vs. Jashuben and Others, the Apex Court has held that it is necessary to consider the earnings of the deceased at the time of the accident.

The cross-objections are dismissed accordingly.