Ramesh vs Smt. Gulabo and Others

Vijender Singh Malik, J.—Out of the above mentioned two appeals, FAO No. 290 of 2012 is brought by the driver-cum-owner of the offending vehicle against the award dated 1.6.2011 passed by Learned Motor Accidents Claims Tribunal, Sonepat (for short, "the Tribunal") vide which payment of 50% of the award money is held to be the responsibility of the appellant while the remaining 50% is held to be joint and several responsibility of the appellant and the insurance company. The other appeal, FAO No. 3389 of 2012, has been brought by the claimants seeking enhancement of compensation. Baljit died in a roadside accident that took place on 4.10.2009. His dependents, Smt. Gulabo and others filed a claim petition u/s 166 of the Motor Vehicles Act, 1988 seeking compensation in a sum of Rs. 25 lakhs. Vide the impugned award, learned Tribunal allowed the claim in a sum of Rs. 6 lakhs.

On 4.10.2009, Baljit, the deceased alongwith Dilbagh Singh was going on motorcycle No. HR-11C-4409. The motorcycle was driven by Dilbagh Singh and Baljit was riding its pillion. At about 10.30 PM, when they were near turning to village Tihar, a canter bearing registration No. HR-56-4428 driven by respondent. No. 1 at a very high speed came from the side of Gohana. The same had hit the motorcycle, as a result of which Baljit and Dilbagh Singh suffered multiple and grievous injuries. Baljit succumbed to his injuries.

Baljit was earning Rs. 15,000/- per month. He was contributing the entire amount to his family. The family was dependent upon him. Baljit was 34 years of age. For these facts, the claimants have sought a sum of Rs. 25 lakhs as compensation.

The respondents have resisted the claim petition. They have denied the averments of the claimants regarding the age, occupation and income of the deceased. They have denied the claimants to deserve a sum of Rs. 25 lakhs as compensation.

Learned Tribunal under issue No. 1 came to the conclusion that Dilbagh Singh, the driver of the motorcycle alongwith respondent No. 1 had equally contributed to the cause of the accident. Therefore, learned Tribunal decided issue No. 1 partly in favour of the claimants and partly in favour of respondent No. 2 and partly against respondent No. 1.

Assessing the evidence on record with regard to income of the deceased, learned Tribunal found a sum of Rs. 4,000/- as income of the deceased out of which, deducting 1/4th as personal and living expenses of the deceased, learned Tribunal assessed a sum of Rs. 3,000/- as the monthly dependency of the claimants. Learned Tribunal found the deceased to be in the age group of 31-35 years and in this view of the matter, multiplier of 16 has been adopted to work out the compensation. A sum of Rs. 24,000/- has been assessed under the conventional heads and a sum of Rs. 6 lakhs has, consequently, been assessed as compensation.

Ramesh, the appellant [hereinafter referred to as "the owner"] has challenged the findings of learned Tribunal on issue No. 1 as well as the order directing him to pay 50% of the compensation personally. Learned counsel for the owner has submitted that the evidence coming on the record has not been properly appreciated and the finding on issue No. 1 is erroneous. He has further submitted that statement of Dilbagh, the surviving victim of the accident has been considered in his own case and his claim petition was allowed. Thereafter, he appeared before the Magistrate before whom the owner was facing trial and there Dilbagh Singh resiled from his statement bringing relief to the owner by way of acquittal.

Learned Tribunal has rightly observed that the Tribunal is not bound by a finding of the criminal court in this regard. He has also concluded that Dilbagh Singh has colluded with the driver of the offending vehicle after his own claim petition had been allowed. However, despite all these observations, learned Tribunal came to the conclusion that it is a case of contributory negligence.

What has weighed with learned Tribunal in this regard is the statement of Dilbagh Singh that he saw the offending vehicle coming in a rash and negligent manner from a distance of 5-7 killas. According to learned Tribunal, the time that was taken by the offending vehicle to cover that distance was sufficient for Dilbagh Singh to have avoided the accident which he did not do and so, he contributed equally to the cause of the accident.

In my opinion, this approach of learned Tribunal is wholly untenable. A person driving a smaller vehicle may see a bigger vehicle coming from opposite side in a rash and negligent manner. It is not necessary for him to have left the road or even kacha berm to avoid the accident. He could believe that the driver of the offending vehicle, by the time he reaches the spot, would correct his driving of the vehicle. Even if, he did not believe that the driver of the offending vehicle in the course of time would correct his driving and he despite opportunity did not take away his vehicle, he is still not responsible for the accident. The responsibility entirely lies with the driver of the offending vehicle. He can only be said to have not taken the precaution to avoid accident which does mean that he has been negligent in driving the vehicle. Therefore, it is a case where the accident is squarely caused by driver of the offending vehicle by his rash and negligent driving and no contribution is there of Dilbagh Singh to the cause of the accident.

Believing that Dilbagh Singh had been negligent to any extent, may be 50% in causing the accident, the order directing 50% of the compensation to be paid jointly and severally by the insured and insurer and 50% by insured only, is again untenable. For the deceased and his dependents, it was a case of composite negligence in which the liability could be of Dilbagh Singh. The liability could be enforced against Ramesh, the owner-cum-driver of the offending vehicle and in that event, the insurance company would indemnify him in the entire amount payable under the award. So, the order directing respondent No. 1 to exclusively pay 50% of the award money and directing the appellant and insurance company to jointly and severally pay the remaining 50% is wrong and is liable to be set-aside.

In the other appeal, Baljit is found to have an income of Rs. 4,000/- per month. Even if he was taken as a labourer, his income requires increase in the name of future prospects for assessment of compensation. As Baljit has been of the age of 34 years, below 40 years, as per the decision of Hon''ble Supreme Court of India in Rajesh and Others Vs. Rajbir Singh and Others, , the income of the deceased has to be increased by 50% in the name of future prospects. Making the aforesaid addition, I find a sum of Rs. 6,000/- to be the income of the deceased for the purpose of calculation of compensation. Deducting 1/4th therefrom in the name of personal and living expenses of the deceased, I find a sum of Rs. 4,500/- per month as the dependency of the claimants, which multiplied with 12, brings the annual dependency at Rs. 54,000/-. Multiplying the annual dependency with 16, the multiplier available in this case, I find a sum of Rs. 8,64,000/- as the amount lost by the claimants in the death of Baljit. Adding thereto a sum of Rs. 24,000/- under the conventional heads, as allowed by learned Tribunal, I find a sum of Rs. 8,88,000/- as the compensation payable to the claimants.

Consequently, FAO No. 290 of 2012 is allowed and the impugned award is set-aside to the extent that learned Tribunal held the appellant responsible to make payment of 50% of the award money. It is ordered that the whole amount of compensation shall be paid by the appellant and respondent No. 7, i.e. the insured and the insurer jointly and severally. FAO No. 3389 of 2012 is allowed enhancing the compensation from Rs. 6,00,000/- to Rs. 8,88,000/- with other terms regarding rate of interest etc. appearing in the award of the Tribunal remaining the same.