Smt. Pushpabai and Others vs Padumnath Mali and Others

A.K. Patnaik, C.J.—This is an appeal u/s 173 of the Motor Vehicles Act 1988 against the award dated 1-2-1996 in Claim Cases No. 15 of 1988 by the Third Additional Motor Accident Claims Tribunal, Bastar (Jagdalpur). The facts briefly are that Bhajanlal, husband of appellant No. 1 and father of appellants 2 to 7 was going on a motorcycle bearing Registration No. MPT-3700 on 3-5-87 at about 9.00 p.m. on the road from Jagdalpur to Seonaguda and met with an accident with a scooter driven by one Padumnath Mali-respondent No. 1. Bhajanlal died as a result of the said accident. Respondent No. 1 Padumnath Mali sustained injuries and was hospitalized, but survived. The appellants filed the aforesaid claim case No. 15/1988 before the Third Additional Motor Accident Claims Tribunal, Bastar (Jagdalpur) claiming compensation of Rs. 3,00,000/- (Rupees Three Lakhs Only), but the Tribunal held that deceased Bhajanlal himself was responsible for the accident inasmuch as he was negligent in driving the motorcycle and dismissed the claim of the appellants by the impugned award dated 1-2-1996.

Mrs. Anju Ahuja, learned counsel appearing for the appellants submitted that Dhanuram was examined as Witness No. 2 on behalf of the appellants and he has stated before the Tribunal that when he was sitting in the provision store near the accident spot, Bhajanlal came from Jagdalpur driving slowly in his motorcycle and Padumnath Mali (respondent No. 1) came from the opposite side in the scooter driving rashly and as a result the motorcycle and the scooter dashed and Bhajanlal fell down at the spot of the accident. Learned counsel submitted that this witness should have been belied by the Tribunal and the finding should have been recorded that the accident was caused due to rash and negligent driving by Padumnath Mali (respondent No. 1).

Mr. H.B. Agrawal, learned Sr. Advocate appearing on behalf of respondent No. 3 Insurance Company, on the other hand, submitted that the Tribunal has relied on the evidence of respondent No. 1 who was himself driving the scooter and who has stated before the Tribunal that the scooter was standing and he had gone to attend the call of nature when Bhajanlal came in his motorcycle and dashed against scooter.

We find that respondent No. 1 has admitted in his evidence that the light of the scooter was on at the time of the. accident and this fact proves that the engine of the scooter was on and the scooter was not standing. It is not in dispute that Bhajanlal has died in the accident and this fact would show that he must have suffered a heavy impact and such heavy impact could not be caused by a standing scooter but could have been caused by a scooter coming in motion from the other side. That apart, respondent No. 1 himself was driving the scooter and he was an interested witness and it was not expected of him to say that he was driving the scooter rashly on account of which the accident took place. Dhanuram, Witness No. 2 examined on behalf of the appellants, on the other hand, appears to be an independent witness as he was the owner of a provision store located near the accident spot. He has clearly stated that while Bhajanlal was coming in his motorcycle slowly and Padumnath was coming in a scooter rashly and speedily from the opposite side and there was a dash between the scooter and motorcycle and he could hear the sound and he saw that Bhajanlal had fell down. On the basis of this evidence of an independent eyewitness, the finding of the tribunal that the accident was caused on account of the rash and negligent driving of Bhajanlal only cannot be sustained. But since there appears to have been a head on collision between the motorcycle driven by Bhajanlal and the scooter driven by Padumnath, the accident cannot be solely attributable to Padumnath, Bhajanlal, in the facts and circumstances, was partly responsible for the accident. Moreover, Witness No. 2 Dhanuram examined on behalf of the appellants has not stated that Bhajanlal was on the left hand side of the road while driving the motorcycle and he has only stated that Bhajanlal was driving slowly. Any driver of a motorcycle while driving slowly is under duty to drive on the left hand side of the road. We, therefore, hold that Bhajanlal was guilty of contributory negligence and the quantum of compensation payable to the dependents of Bhajanlal was liable to be reduced 50% on account of such contributory negligence.

Now coming to the quantum of compensation, there is no dispute that the income of the deceased Bhajanlal was about Rs. 2,000/- per month from the business of selling cloth. Mr. H.B. Agrawal, learned Sr. Advocate appearing on behalf of respondent No. 3 however, submitted that as per the statement in the claim petition made by the appellants Rs. 1,000/- was being given to the wife and hence the dependency should be taken as Rs. 1,000/- per month. We are unable to accept the submission of Mr. H.B. Agrawal. The fact that only Rs. 1,000/- was being paid by the deceased to his wife for household expenses would not mean that the dependency is also to be taken as Rs. 1,000/- Besides household expenses given in cash to the wife, a person has to spend on other expenses for maintaining his wife and children out of his income and the cash given towards household expenses is only one such expense for maintaining the wife and children of a person. We will have to calculate the dependency on the basis of the well settled principles in this regard. The deceased had two minor children and four major children besides his wife. Hence, total number of units work out to 14 and dependency works out to 12/14. The compensation payable is accordingly calculated as follows:

Compensation = Rs. 3,08571.00

(Rs. 2,00 x 12 x 12/14 x 15 (multiplier as the age of the deceased being 45 years)

(Rupees three lakhs eight thousand five hundred seventy one only)

In addition to this, a sum of Rs. 2,000/- was payable for funeral expenses and Rs. 4,000/- was payable for loss of consortium. Hence, the total compensation works out to Rs. 3,14,571.00 and fifty percent of this compensation amount works out to Rs. 1,57,285.00.

In the result, we hold that the appellants/claimants are entitled to a sum of Rs. 1,57,285.00 (Rupees one lakh fifty seven thousand two hundred eighty five only) with interest calculated @ 9% per annum from the date of application before the Tribunal i.e. 17-8-1987. We direct that the compensation amount inclusive of interest, less the amount already paid to the claimants, will be deposited by respondent No. 3 with the aforesaid Tribunal within a period of three months from today and the Tribunal will pass orders for keeping the amount in fixed deposit or for release of any amount in accordance with the judgments of the Apex Court.

Mr. H. B. Agrawal, submitted that the owner of the scooter was respondent No. 2, but the scooter was being driven without a valid licence by respondent No. 1 and this would be clear from the evidence of respondent No. 1 Hence, as per the decision of the Supreme Court, respondent No. 3 Insurance Company should be given liberty to recover the amount paid to the claimants from respondent No. 2 for breach of the insurance policy. We make it clear that respondent No. 3/Insurance Company may take steps in accordance with law as laid down by the Supreme Court for recovery'' of the amount paid to the claimants from respondent No. 2, the owner of the scooter. The appeal is allowed to the extent indicated above.