Smt. Uma Mittal and Others vs LN. Suresh Pawar and Another

V.K. Jhanji, J.—This appeal by the claimants is directed against the Award dated 21.10.1992 rendered by the Motor Accidents Claims Tribunal, Ambala.

In brief, the facts are that on 12.9.1991, one Ishwar Dayal along with one Kishan Singh sitting on the pillion seat were proceeding on Scooter No. CHI-6109 from Ambala to Panchkula. When the scooter driven by Ishwar Dayal reached near HUDA Nursery, Sector 19, Panchkula. a military vehicle bearing registration No. 87-D 73396-H being driven by respondent No. 1. came from the opposite direction. It is the case of the claimants that the military vehicle was being driven by respondent No. 1 in a rash and negligent manner and it came to a wrong side and hit the scooterist. Ishar Dayal succumbed to his injuries at the spot and Krishan Singh suffered fracture of his leg. In the claim petition, it was urged that Ishwar Dayal was earning Rs. 3000/- per month from his trade of sale of ready made garments. Union of India and the military vehicle driver contested the petition and in their joint written statement, they took up a plea that the accident took place on account of the negligence of the Scooterist, Ishar Dayal, the precise case set up by them was that Ishwar Dayal, in his attempt to overtake another scooter, struck his scooter against the driver''s side of the military vehicle which was proceeding on the correct and left side of the road. It was also pleaded that Ishwar Dayal and his companion were under the spell of liquor and driving the scooter at a high speed.

From the pleadings of the parties, the following issues were framed :-

1) Whether petitioners are legal heirs/representatives of the deceased Ishwar Dayal? OPF

2) Whether Ishwar Dayal died a result of rash and negligent driving of Military Vehicle No. 87-D 73396-M by its driver LN-Suresh Pawar respondent No. 1? OPP

3) To what amount claimants are entitled as compensation and against whom? OPP

4) Whether claim petition is bad for non-joinder of necessary parties as alleged? OPR

5) Relief.

On Issue No. 2, the learned Tribunal held that Ishwar Dayal died as a result of rash and negligent driving of military vehicle by its driver Suresh Pawar and also on account of his own rash and negligent driving of scooter. On Issue No. 3 i.e. "To what amount claimants are entitled as compensation and against whom?", the learned Tribunal, on the basis of income earned by the deceased and the family dependency, came to the conclusion that he was spending Rs. 1,600/- per month on his family. Since the deceased was 50 years old, multiplier of 10 was applied and the compensation was assessed at Rs. 1,92,009/-. Because of finding of contributory negligence, the amount was reduced to half and it was held that the claimants Uma Mittal and Kavita Gupta (widow and daughter respectively) of Ishwar Dayal (deceased) are entitled to a sum of Rs. 96,000/- as compensation in equal shares on account of death of Ishwar Dayal. They were also held entitled to interest at the rate of 12 per cent per annum from the date of petition till realisation. Hence the appeal by the claimants.

It has been contended by the learned counsel for the claimants that the finding of the Motor Accidents Claims Tribunal in regard to contributory negligence is erroneous in as much as the same is not based on evidence brought on record by the parties. He contended that there was no question of any contributory negligence involved in the case as the deceased was driving his scooter on the left side of the road and was hit by respondent No. 1 by rash and negligent driving of military vehicle. With regard to the amount of compensation fixed, he contended that considering the income and the age as also the family dependency, multiplier of 20 ought to have been applied. Against this, the learned counsel for the Union of India contended that the finding of the learned Tribunal is based on evidence and so calls for no interference in appeal.

After hearing the learned counsel for the parties and on going through the record of this case, I am of the view that it was not a case of rash and negligent driving both on the part of the military vehicle driver and on the part of the scooterist. The learned Tribunal while dealing with the issue in regard to the negligence, has found that after hitting the scooter, the military vehicle stopped at a distance of 70 metres from the point of collision. The learned Tribunal observed " that this itself shows that the driver of the military vehicle took time to bring its vehicle to halt and is clearly suggestive of the excessive speed of military vehicle. As regards the allegation of the respondents that the accident took place because of the attempt by the scooterist to overtake another scooter, the learned Tribunal has held that there is no independent evidence to support the respondents'' version that the scooterist had collided to overtake another scooter. The scooterist has been held to be negligent only on the basis of photograph, Exh. P-5 where the scooterist and the military vehicle have been shown to be lying in the middle of the road. On going through the plan prepared at the time of accident, I find that the scooter, In fact has been shown to be lying on its left side and not in the middle of the road as has been found by the learned Tribunal, RW-1, driver of the military vehicle, in his cross-examination, conceded that the vehicle had stopped 70 metres away from the dead body. It has also come in his statement that the place of the accident was having double road. The entire traffic was moving on one road as the road falling towards left side while proceeding from Ambala-Kalka road to Panchkula, alone was open. He conceded that in case the closed road was open to traffic, he would have driven the vehicle on that closed road. In such a situation, he was required to slow down but he had not done so and went on driving in full speed. The offending military vehicle threw off the scooterist who was going on his left side. Consequently, recklessness and negligence in driving the offending military vehicle wholly lies with respondent No. 1 and there is no question of reducing the amount of compensation.

As regards the contention that multiplier of 20 ought to have been applied, I am of the view that considering the age of the deceased, multiplier of 20 would be excessive. As found by the Tribunal, the deceased was earning income of Rs. 2,000/- per month and the family dependency was accepted at Rs. 1,600/- per month. Postmortem report placed on record shows that at the time of the accident, the deceased was 50 years of age. Keeping in view the future prospects which the deceased had, it would not be unreasonable to predict that his monthly income would have gone up at least more than what he was earning at the time of his death. The Second Schedule for Compensation for third party fatal accident/injury cases claims appended to the Motor Vehicles Act, 1988 provides a multiplier of 13 in case of the victims above 45 years but not exceeding 50 years. The said Schedule has been inserted by Act No. 54 of 1994 with effect from 14.11.1994 but the accident in the in stant case took place in the year 1991 and, therefore, multiplier of 12 would be most appropriate. Thus, taking the family dependency to be Rs. 1,600/- per month and applying the same to the annual dependency of Rs. 19,200/-, the amount of compensation comes to Rs. 2,30,000/-. The claimants have already received as sum of Rs. 96,000/-. So, the balance amount payable to the claimants comes to Rs. 1,34,000/-. Out of this, Kavita Gupta (daughter) is held entitled to receive a sum of Rs. 52,000/- whereas Master Mohit (minor) son of late Harish Kumar son of Ishwar Dayal is held entitled to receive a sum of Rs. 50,000/- and the remaining amount of compensation i.e. Rs. 32,400/- shall be disbursed equally to the legal heirs of Smt. Uma Mittal wife of Ishwar Dayal, who has died during the pendency of the appeal. The claimants shall also be entitled to interest at the rate of 12% per annum on the enhanced compensation from the date of the petition till its realisation. The amount payable to Kavita Gupta (daughter) and Master Mohit, being minors, shall be deposited by the Motor Accidents Claims Tribunal, Ambala in the F.D.Rs in a Nationalised Bank earning maximum amount of interest thereon and shall become payable to them on their attaining majority.

Consequently, Award dated 21.10.1992 of the Motor Accidents Claims Tribunal, Ambala is modified to the extend indicated above.