Siyadulari and Others vs Bhikhu Yadav and Others

Pritinker Diwaker, J.—The present claimants'' appeal arises out of the award dated 29-8-2006 passed by 10th Additional Motor Accidents Claims Tribunal (FTC), Durg (hereinafter referred to as "the Tribunal") in Claim Case No. 137/2005 whereby in a death case compensation of Rs. 2,16,500/- has been awarded in favour of the claimants. Facts of the case, in brief, are that on 19-8-2005 when deceased Mohanlal Kumhar along his two friends was going on motorcycle Hero Honda CD 100 bearing registration No. CG 07/LA/8235, the said motorcycle collided with a truck bearing registration No. MH 06-K-0554 (hereinafter referred to as "offending vehicle"), which was coming from the opposite side and driven by respondent No. 1-Bhikhu Yadav in a rash and negligent manner. It is stated that all the three persons riding the motorcycle have expired. Crime No. 449/05 was registered against respondent No. 1, driver of the offending vehicle for the offence punishable under Section 304-A of IPC.

A claim case was filed by the claimants, who are widow, two minor children and parents of the deceased, total five in number, before the Tribunal for compensation of Rs. 10,02,000/- inter alia, pleading that at the time of death, the deceased was a potter by profession, thereby earning Rs. 3,000/- per month, he was aged about 22 years, and therefore, the claimants are entitled for compensation as claimed.

The respondents by filing their written statements contested the case and denied the claim as put forth by the claimants. It has been pleaded by them that it is the rider of the motorcycle, who himself was negligent in riding the vehicle, and therefore, the respondents cannot be held liable to pay any compensation.

However, the Tribunal after appreciation of the evidence on record by the impugned award though determined the compensation as Rs. 4.33 lacs but after deducting 50% from it towards contributory negligence on the part of the deceased, granted a total compensation of Rs. 2,16,500/- in favour of the claimants. It is this award, which has been challenged by the claimants before this Court.

Learned Counsel for the appellants submits as under:--

"(i) that there is no legally admissible evidence on record to show that it is deceased Mohanlal Kumhar, who was riding the motorcycle on the date of accident in a rash and negligent manner, and therefore, in absence of such evidence, deceased Mohanlal cannot be held contributory negligent;

(ii) that finding of the Tribunal regarding contributory negligence on the part of the deceased based on the post-mortem report, according to which liquor was found in the food articles of deceased Mohanlal, is not sustainable in the eye of law;

(iii) that in the claim petition, it has been specifically pleaded by the claimants that it is the other deceased namely Ramnath Kumhar, who was riding the motorcycle and not Mohanlal Kumhar (husband of appellant No. 1) and this fact also finds support from the final report submitted by the police, wherein it has been mentioned that deceased Ramnath Kumhar was riding the motorcycle on the date of accident;

(iv) that the Tribunal while assessing the compensation has also fallen in error by deducting 1/3rd towards personal and living expenses of the deceased whereas looking to the number of dependents, i.e., five, the deduction should have been 1/4th for assessing the contribution of the deceased to his dependents;

(v) that the multiplier of 17 has also been wrongly applied by the Tribunal whereas considering the age of the deceased, it should have been 18."

On the other hand, supporting the impugned award, it has been argued by learned Counsel for respondent/Insurance Co. that once it was found in the postmortem of deceased Mohanlal that at the time of riding the motorcycle he had consumed liquor, the Tribunal was fully justified in holding him equally responsible for causing the accident. He further submits that the Tribunal was also justified in assessing the loss of dependency as well as applying the multiplier. The compensation awarded by the Tribunal is just and reasonable and requires no interference by this Court. ''.

Heard learned Counsel for the parties and perused the material available on record.

In their claim petition, it has been specifically pleaded by the claimants that on the date of accident, it is other deceased Ramnath Kumhar who was riding the motorcycle whereas deceased Mohanlal was sitting as a pillion rider. Even in their written statement under specific averment, it has been pleaded by the Insurance Co. that on the date of accident, the motorcycle was being driven by the deceased Ramnath Kumhar. Shyam Sunder Thakur (A.W. 2), eye-witness to the accident, has categorically stated that three persons riding on the motorcycle had collided with the offending vehicle truck which came from opposite direction. However, this witness has categorically denied that the motorcycle was being driven rashly and negligently.

It is a settled principle of law that the onus of proof regarding contributory negligence is on the party who alleges the same. The Insurance Co. taking a plea of contributory negligence on the part of the victim/deceased must lead evidence with regard thereto and in absence thereof, such plea cannot be accepted. The Insurance Co. must state specifically that there was some casual connection of the deceased with the damage suffered by him to hold that the conduct of the deceased amounted to contributory negligence. Similarly, there had to be some evidence showing absence of reasonable care on the part of the deceased for his own safety, which contributed to the damage.

In the present case, there is no evidence on record to show that on the date of accident the motorcycle was being driven rashly and negligently. Likewise, there is also no other evidence, except the post-mortem report of deceased Mohanlal, on record to show that the rider or pillion riders of the motorcycle had consumed liquor. Even assuming that deceased Mohanlal had consumed liquor prior to the accident, in order to hold him contributory negligent the Insurance Co. is required to first prove that it is he who was riding the motorcycle and secondly that on account of consumption of liquor he was not in a position to ride the motorcycle properly and was riding the same in a rash and negligent manner. Only on the basis of evidence that the deceased had consumed liquor before riding the motorcycle, no definite finding can be given that he was riding the vehicle rashly and negligently.

Though the Insurance Co. has raised a plea of contributory negligence in its written statement but no evidence has been adduced by it on this issue. The Insurance Co. has utterly failed to prove that on the date of accident, it is the deceased of the present case who was riding the motorcycle in a rash and negligent manner after consuming liquor. On the contrary, Shyam Sunder Thakur (A.W. 2) has categorically denied the suggestion in his cross-examination on behalf of the Insurance Co. that the motorcycle was being driven rashly and negligently. Further, as per final report submitted by the police, it is other deceased Ramnath Kumhar s/o Shriprasad, who was riding the motorcycle and not the deceased of the present case.

Thus, on the basis of aforesaid discussions, it cannot be held that the deceased was contributory negligent in causing the accident and as such, the finding of the Tribunal in this regard is liable to be set aside and it is set aside accordingly.

So far as quantum of compensation is concerned, in the absence of any cogent and reliable evidence with regard to income of the deceased, the Tribunal was fully justified in assessing the income of the deceased on notional basis as Rs. 36,000/- per annum. However, considering the number of claimants, i.e., five, the Tribunal was not justified in deducting 1/3rd towards personal and living expenses of the deceased while assessing the loss of dependency, which, in fact, should have been 1/4th. Thus, after deducting 1/4th, the annual loss of dependency comes to Rs. 27,000/-. Considering the age of the deceased, in view of the guidelines of the Apex Court in the matter of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the multiplier applicable in this case is 18 and not 17 as applied by the Tribunal. After applying this multiplier, the total loss of dependency comes to Rs. 4,86,000/-. As regards conventional heads, a lump sum of Rs. 25,000/- awarded by the Tribunal appears to be just and proper and is therefore, maintained.

In view of what has been discussed above, the appellants/claimants are held entitled for a total compensation of Rs. 5,11,000/- and since the Tribunal has already awarded Rs. 2,16,500/-, after deducting the same the appellants are entitled for additional compensation of Rs. 2,94,500/-. This additional amount of compensation shall carry interest @ 6% per annum as awarded by the Tribunal from the date of claim petition till realisation. In the result, the appeal is allowed in part and the award impugned stands modified to the extent indicated above.