Smt. Kamla Devi vs State of Haryana and Another

V.K. Bali, J.—By this order, I propose to decide four connected appeals bearing No. 1092, 1093, 1094 and 1095 of 1989 as the same arise out of one accident. Learned counsel for the parties also suggest that as the Tribunal had chosen to decide all the four petitions by a common judgment, these appeals like wise may be decided by the same judgment. All the appeals have been preferred by the claimants who were unsuccessful for getting any compensation from the Motor Accident Claims Tribunal vide order dated 7.11.1988. All the claim petitions i.e. bearing Nos. 31 to 36 of 1987 were dismissed. The claimant-appellants lost their case as they were unable to prove that the accident had taken place on account of rash and negligent driving of the alleged offending vehicle driven by Kartar Singh, driver of the Haryana Roadways. Obviously, in these appeals endeavor of the learned counsel for the appellants is to secure reversal of the findings recorded by the Tribunal on the issue dealing with negligence Before, however, his contentions are noticed, it shall be useful to have in mind bare minimum facts with regard to the way and manner, two persons, namely, Sushil Kumar and Paras Kumar died in the accident.

The narration of events as given in the claim petition is that on 5.12.1986 Paras Ram and Sushil Kumar (both since deceased) were going to Delhi in Maruti Van No. DDA 2505 in connection with their business, which was being driven by Sukha Ram. At about 2.30 PM when they were near village Kharawar on Rohtak-Delhi road, a truck overtook the Maruti Van for going towards Delhi. In the meantime a Haryana Roadways bus bearing No. HYR 9319 which was being driven by Kartar Singh, driver/respondent No. 2 came from Delhi side and hit Maruti Van towards its left head-light and pushed back the van to a distance of about 20 yards as a result of which Maruti Van had fallen in the ditches. Sushil Kumar and Paras Kumar had succumbed to their injuries and died at the spot whereas Sukha Ram had sustained injuries and was removed to Medical College & Hospital, Rohtak and was admitted there. The case of the claimants was that the accident had taken place due to rash and negligent driving of Haryana Roadways bus driven by its driver, namely, Kartar Singh. In all, six claim petitions were filed. Whereas, heirs of deceased Sushil Kumar filed claim petition bearing No. 33 of 1987, widow of Sushil Kumar filed a separate, petition bearing No. 31 of 1987. The third petition on account of death of Sushil Kumar was filed by Pankaj, son of Sushil Kumar, which was petition No. 34 of. 1987. Brahmo Devi, mother of Paras Kumar deceased filed claim petition No. 35 of 1987. Petition bearing No. 32 of 1987 was filed by widow of Paras Kumar and petition bearing No. 36 was filed by minor sons and daughters of Paras Kumar.

All the claim petitions were resisted by the respondents. In the written statement filed on behalf of the respondents, it was stated that death of both Sushil Kumar and Paras Kumar was due to rash and negligent driving of Maruti Van by its driver. On the fateful day Kartar Singh, driver/respondent No. 2 was coming from Delhi to Rohtak at normal speed on his own left hand side of the road and when the bus reached near the place of accident, he saw one truck coming from the opposite direction and the Maruti Van trying to overtake it. Kartar Singh, driver, blew horn, cut down the speed of the bus and took the bus towards his own extreme left hand side of the road. The truck driver did not allow the Maruti Van to overtake it and the driver of Maruti Van lost control over the Van and increased the speed of the Van and then struck the Maruti Van into the bus by bringing it to the wrong side of the road in the kacha portion. It is thus the case of the respondents that the accident took place due to rash and negligent driving of Maruti Van by its driver. Pleadings of the parties gave rise to the following issues:-

(1) Whether the accident in question took place due to the rash and negligent driving of the bus in question by respondent No. 2 Kartar Singh ?

(2) If issue No. 1 is proved, whether the petitioners in all the claim petitions are entitled to claim any compensation., if so, how much and from which of the respondents?

(3) Relief?

By discussing issue No. 1 as mentioned above the Tribunal arrived at the conclusion that the accident had taken place due to rash and negligent driving of the Maruti Van by its driver and not due to the rash and negligent, driving of the bus driver i.e. respondent No. 2. For arriving at the aforesaid conclusion the learned Tribunal found as follows:-

"Statement of Ram Sarup P.W. who claims himself to be an occupant of the Maruti Van at the time of the accident does not help the petitioners to prove that the accident took place due to rash and negligent driving of the bus by the driver/respondent firstly because if one goes through the petitions then one will find that besides the two deceased named above there was one Sukha Ram who according to the petitioners was driving the Maruti Van at the time of the accident and it was Sukha Ram who had sustained injuries and was admitted in Medical College Hospital, Rohtak, secondly FIR Ex. P.4 shows that the third person who was in the Maruti Van and had sustained injuries had disclosed his name as Ram Saran; thirdly according to the petitioners, the Maruti Van was being driven by Sukha Ram whereas Ram Sarup P.W. has stated that it was being driven by Sushil Kumar deceased. He has no where stated that he is also known as Sukha Ram. The petitioners have not placed on record copy of his medico legal report or any record of MCH Rohtak to show that it was actually he who was in Maruti Van at the time of accident and not Sukha Ram. More over, his statement shows that at the time of the accident he was running temperature and he cannot say if the distance in between the bus and truck which was going ahead of Maruti Van was not much as to give passage to the Maruti. Van to cross the truck or that Sushil Kumar in the process of overtaking the truck finding not sufficient passage to cross the truck turned the Maruti Van towards his right as a result of which the Maruti Van struck against left hand side of front head light of the bus and then it felt into the ditches due to rash and negligent driving of the van by Sushil Kumar. This part of his statement demolishes his entire statement if we believe that he was actually in that van and not Sukha Ram because admittedly there were only three persons and not four at the time of the accident, that the accident took place due to rash and negligent driving of the driver of the bus."

Earlier to that, the Tribunal took in view the statement of Devak Ram PW, Ex.P4 copy of the FIR recorded on his statement in police station, Sampla on that day, statement of ASI Prem Singh PW, rough site plan, Ex.P5 prepared by ASI Prem Singh of the place of accident, statement of Kartar Singh, driver-respondent and Ramesh Chand, conductor of Haryana roadways bus. In view of this Court a detailed discussion on the evidence of the parties is perhaps not required in this case as even if version of the respondents is accepted to an extent that it deserves to be accepted, even then it becomes a case of contributory negligence. It may be mentioned at this stage that Devak Ram PW while lodging the FIR had blamed the bus driver but he made a departure from his statement when he appeared in the witness box. The fact, however, remains that the accident had taken place, even as per version of the respondents, when driver of the Maruti Van was trying to overtake the truck. Concededly as well, at that time, the bus driven by Kartar Singh was coming from the opposite direction. Assuming therefore that driver of the maruti Van had miscalculated the time of over-taking the truck, the driver of the bus, namely, Kartar Singh, was also supposed to notice this fault of the driver of the Maruti van with a view to avoid the accident. The story of respondents that while overtaking, since truck driver was not permitting a pass to the Maruti Van, driver of the Maruti Van could not control the vehicle and it came on it''s extreme wrong side and, thus, collided with the Haryana roadways bus, on the face of it seems to be exaggerated on the part of the respondent. Even if driver of the Maruti van was unable to control the vehicle, anything might have happened but the vehicle i.e. Maruti Van could not have swept to its right hand side and that too so much as to its extreme right hand at Kacha path. From the evidence that has been recorded by the Tribunal and other attending circumstances of the case, it appears to this Court that driver of the Maruti Van miscalculated the time of overtaking but at the same time the driver of the Haryana Roadways bus also did not take necessary precautions to avoid the accident. Not invariably but normally in case of head on collision, drivers of both the vehicles are at fault. To what extent the drivers of the vehicles colliding head on, are to share the blame, depends upon facts and circumstances of each case, In any case, in such a situation by and large it is the case of contributory negligence. That being so, driver of Haryana roadways bus, thus, can not be completely absolved in causing this accident. In totality of the facts and circumstances of this case, this Court is of the view that fault of both the drivers i.e. of Maruti Van and Haryana roadways bus is equal and both of them have to be blamed for causing the accident. Thus, it is a case where the damages must be shared to the extent of 50% by the Haryana roadways.

The learned tribunal has worked out compensation payable to the claimants. All that the counsel of the appellants contends is that even though it has been held that Paras Kumar was earning Rs. 1500/- per month, dependency of the claimants has been worked out to Rs. 1000/- per month. It is proved on records of the case that Paras Kumar was looking after his another, wife and three minor children i.e. these people were dependent upon him. A person who earns Rs. 1500/- and has five people to feed can not possibly spend 1/3rd of his income for himself. That being so, the dependency in this case ought to have been worked out at least Rs. 120O/- per month. Paras Kumar was 42 years of age and multiplier of 16 was applied which seems to be just and proper. The dependency of the deceased has to be worked out to Rs. 1200/- PM and by giving a multiplier of 16, the net compensation payable comes to Rs. 2,20,400/-. Since it is a case of contributory negligence of the driver of the Haryana Roadways and driver of the Maruti Van and it has been held by this Court that contributory negligence is to the extent of half, of the compensation is thus payable by Haryana roadways which comes out to Rs. 1,10,200/-. The claimants shall also be entitled to an interest of 12 per annum from the date of filing of the claim application. As the mother of the deceased has already died, compensation as worked out by this Court has to be paid to other claimants.

The learned Tribunal while dealing with the case of claimants on account of death of Sushil Kumar has worked out their dependency to an amount of Rs. 600/- per month whereas a finding has been recorded that Sushil Kumar was earning Rs. 1100/- per month. Sushil Kumar was to support four persons i.e. parents, wife and one child. Therefore, he could not have been spending Rs. 500/- per month out of Rs. 1100/- on his own. Therefore, the dependency of this claimant requires to be worked out to Rs. 900/- per month instead of Rs. 600/-. Sushil Kumar was 32 years of age and a multiplier of 18 should be applied in this case worked on that basis, the total compensation payable to the claimants works out to Rs. 1,94,400/-, half of which Rs. 97,200/- for the reasons mentioned above is payable by Haryana Roadways. Let this amount be paid with interest @ 12% per annum from the date of filing of claim applications. Out of this amount the claimants, i.e. father and mother of Sushil Kumar shall be paid Rs. 10,000/- each whereas the remaining amount shall be divided by the widow and child of Sushil Kumar in equal shares.

This appeal is allowed in the manner fully indicated above.

V.K. Bali, J.

28.04.1997

I had dictated this judgment in the open court but before I could sign the judgment it appeared to me that some mistake had occurred in assessing the contributory negligence of the driver of offending vehicle to the extent of 50%. A doubt having been crept in my mind and the judgment having not been signed, I would like to hear the learned Counsel for the parties afresh. Let these matters be put up for hearing afresh on 1.5.1997.

V.K. Bali, J.

20.05.1997

This matter was ordered to be put up for hearing on May 1,1997 but has come up for hearing today. Learned counsel for the parties seek more time to search case law on the issue involved in the present case. Allowed.

V.K. Bali, J.

01.07.1997

On April 28, 1997, when the judgment was put up before me for signatures, I passed the following orders:-

"I had dictated this judgment in the open Court but before I could sign the judgment it appeared to me that some mistake had occurred in assessing the contributory negligence of the driver of offending vehicle to the extent of 50%. A doubt having been crept in my mind and the judgment having not been signed, I would like to hear the learned counsel for the parties afresh Let these matters be put up for hearing afresh on 1.5.1997."

With regard to share of parties responsibility, learned counsel for the both sides contend that apportionment of compensation has to be according to the extent the respective drivers were negligent resulting into accident. There is no need at all to cite the case law, because, as mentioned above, learned counsel for the parties are ad-idem that apportionment of compensation must be according to the share of parties'' responsibility, In the present case, certainly driver of the Maruti Van was for more responsible in causing the accident than that of the driver of Haryana roadways bus. No strait-jacket formula can be laid down to determine the exact extent of negligence and it all depends upon facts and circumstances of each case. In totality of the facts and circumstances of each case. In totality of the facts and circumstances of this case, this Court is of the view that driver of the Maruti Van as negligent to the extent of 70% whereas driver of the Haryana roadways bus was negligent to the extent of 30% and it is in this apportionment only that the Haryana Roadways-needs to compensate the claimants. The claimants in each case, therefore, shall he entitled to only 30% of the compensation assessed which comes to Rs. 66120/- (payable to the claimants who filed claim petitions on account of death of Paras Kumar) and Rs. 58,320/- (payable to the claimants who filed claim petition on account death of Sushil Kumar).