Mausmi and Others vs Ram Dayal and Others

Nisha Gupta, J.—This appeal Under Section 173 of the Motor Vehicles Act, 1988 against the judgment/award dated 23.10.2010 passed by District Judge, Sawai Madhopur in Claim Case No. 171/2008 has been filed for enhancement of compensation.

The short facts of the case are that Shri Kedar Mal Meena died in the accident occurred on 24.1.2008 when he was travelling in Jeep No. RJ-25/T-0216 driving rashly and negligently by respondent No. 2 and at the same time, another Jeep bearing No. RJ-25/P-0561 came from opposite side and hit Jeep No. 0216 in which deceased was travelling. The contention of the claimants was that both the jeep drivers were negligent and case of composite negligence has been presented. The court below has allowed the claim petition only against owner of Jeep No. 0561 and exonerated the owner and insurance company of Jeep No. 0216. The other contention of the appellants is that a meager amount has been awarded. The income of the deceased has not been calculated rightly, no future prospects have been calculated and in spite of four dependents, 1/3 deductions have been made as regards personal expenses.

Per contra, the contention of the respondents is that there is no infirmity in the findings of the court below and a just and fair compensation has been awarded.

Heard the learned counsel for the parties and perused the impugned award as also the original record of the case.

In claim petition it has been stated that both the drivers were negligent and due to negligence of both the drivers, Jeep No. 0216 has overturned. Eye-witness AW/2 Murari has been produced to show the manner of the accident who has stated that he was also travelling in Jeep No. 0216 and the driver was driving the vehicle at a very excessive speed and in negligent manner and passengers have also forbidden him to do so and his categorical statement is that due to negligence of both drivers, the accident has occurred but the court below has rightly considered the fact that in FIR which has been lodged just after the occurrence by a co-passenger, there is no reference that driver of Jeep No. 0216 was negligent and any passenger has cautioned him to drive safely. AW/2 Murari has also stated in his previous statements before the Investigation Officer that driver of Jeep No. 0216 was not negligent and site memo also shows implicitly that Jeep No. 0216 was standing on footpath and Jeep No. 0561 has hit him on its back which ipso facto speaks that the driver of Jeep No. 0561 was only negligent. Notice under Section 133, Ex.5 has also been considered by the court below hence the court below has rightly held that only driver of Jeep No. 0561 was negligent and after investigation, charge-sheet has also been filed only against him and he hit the standing Jeep No. 0216 and that too on rear side, hence no fault can be found with the findings and conclusions arrived at by the court below as regards issue No. 1.

The counsel for appellants has placed reliance on T.O. Anthony Vs. Karvarnan and Others, and the contention of the appellants is that he is not to prove the contributory negligence when the accident has occurred due to negligence of two vehicles. There is no force in the said arguments as there is no evidence that both the vehicle drivers were negligent and in T.O. Anthony (supra), the court has only held that injured need not to establish the extent of responsibility of each wrong -doer separately on which there cannot be any quarrel but here in the present case, the injured has not proved anything as regards the negligence of the driver of Jeep No. 0216. Reliance has also been placed on Daya Bhai Vs. Gopal and Others, where composite negligence was found to be proved in the facts of the case. Apart from it, the court below has also framed Issue No. 1 only as regards the negligence and rashness of driver of vehicle No. 0561 which has not been objected by the appellants before the Tribunal, hence the court below has rightly considered the evidence and no interference is needed as regards findings on Issue No. 1.

The other contention of the appellants is that a meager amount of compensation has been awarded. The deceased was working regularly and earning Rs. 7500/- per month but his income has been assessed on the scale of minimum wages. In the claim petition it has been pleaded that deceased was having private job, in statements before the court, the claimants have asserted that the deceased was teaching in a private school and also fetching income by carrying tuition of the children which was not the case pleaded in the claim petition. Admittedly, no documentary evidence has been produced to prove the income of the deceased, hence the court below has rightly assessed the income of deceased on the scale of minimum wages prevalent at the relevant time. Reliance has been placed on Sanobanu Nazirbhai Mirza and Others Vs. Ahmedabad Municipal Transport Service, wherein it has been specifically proved that the deceased was performing the work of polishing and colouring and which is a skilled job which is not the case here, hence the court below has rightly assessed the income of deceased on the scale of minimum wages.

Further contention of the appellants is that deceased was admittedly of age of 29-30 years at the time of accident but no future prospects have been allowed and reliance has been placed on Santosh Devi Vs. National Insurance Company Ltd. and Others, . The court below held that the deceased was not having a permanent job and on the basis of minimum wages, the income has been assessed.

In view of the above, the future prospects have rightly not been awarded in view of the law laid down in Reshma Kumari and Others Vs. Madan Mohan and Another, .

The other contention of the appellants is that the deceased was having four dependents and in view of the law laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , only 1/4 deduction should be made for his personal expenses. This argument seems to be sound worth acceptance.

In view of the above, the appeal is partly allowed. The award is modified in the terms that claimant- appellants will get enhanced amount of Rs. (2190-1/4) 1645 X 12 x 18 = 3,55,320 - 3,15,360 (already awarded by the Tribunal) 39,960/- in the head loss of earning. The compensation on other heads is confirmed. The enhanced amount shall be paid to the appellants by the Insurance Company within a period of two months from today alongwith 6% interest from the date of filing appeal.