Urmila Devi and Others vs Vijay Singh and Others

Nisha Gupta, J.—This Misc. Appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed against the judgment and award dated 29.3.2008 passed by the Judge, Motor Accident Claims Tribunal (Addl. District Judge), Khetri in claim case No. 116/2006.

The brief facts giving rise to this appeal are that on 18.9.2006, deceased Vinod Kumar was going on the Motorcycle No. DL-7-SZ-4745. When he reached near Dada Fatehpura bus stand, a Jeep bearing No. HR-52-A-0017 being driven rashly and negligently came from the side of Khetri and hit the motorcycle of the deceased. Deceased sustained injuries and ultimately died. Claim Petition preferred before the court below but meager compensation has been awarded.

The contention of appellants is that the court below has assessed contributory negligence of deceased upto 30% which is erroneous and the compensation has also been assessed on lower side. The deceased was having 6 dependents and 1/3rd amount has wrongly been deducted for personal expenses. Admittedly, the deceased was government servant (Patwari) but no future prospects have been allowed and for funeral expenses only Rs. 2,000/- has been allowed. The compensation should also be enhanced appropriately.

Per contra the contention of the respondents is that deceased was coming from side lane on the high way. It was the duty of the deceased to drive the vehicle vigilantly. It was a head-on collusion hence court below rightly assessed the contributory negligence of the deceased. Fair and reasonable compensation has been awarded, no enhancement is needed.

Heard learned counsel for the parties and perused the award as well as the original record of the case.

The court below has assessed the negligence of the deceased at 30% after relying upon the site plan Ex. 7. AW-3 Babu Lal Sharma who is an eye witness has also been examined. He has categorically stated that Jeep driver was negligent and deceased was coming on his side only and jeep driver has hit the deceased. Ex. 7 site plan which has been relied on by the court below also shows the negligence of the jeep driver alone. It is true that the deceased was coming from the side lane to the high way but on high way he has also covered the significant distance and he was on his right side but jeep driver has hit him by going on wrong side which negatived the negligence of the deceased. It is also worth mentioning that after investigation, charge sheet has been filed against the driver of the jeep only and Ex. 7 site plan also speaks implicitly that the jeep driver alone was negligent, hence the findings of court below as regard issue No. 1 are liable to be set aside and it can be very well concluded that the jeep driver was alone negligent and 30% liability on the deceased has wrongly been fastened.

The court below has assessed income of the deceased after considering his salary certificate in which his monthly income has been mentioned at Rs. 6,510/-. There is no dispute about this assessment. Admittedly, deceased was having 6 dependents hence looking to the law laid down in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, ,the court below has wrongly deducted 1/3rd amount for personal expenses and it should be deducted as 1/4th.

The court below has applied multiplier of 15 but law is settled on this point that as per Sarla Verma''s case, looking to age of the deceased, proper multiplier is 14.

The other contention of appellants is that deceased was government servant of age group 40-50 years, no future prospect has been allowed. It is not in dispute that the deceased was of 45 years of age and at the time of accident, he was a government servant having monthly salary of 6510/- but in spite of this fact, future prospects have not been calculated and appellants has relied upon Sarla Verma''s case (supra) wherein it has been held that if the age of the deceased is 40-50 years, the addition in actual salary income should be 30%. In view of the above, the present appellants are entitled for 30% increase in the income i.e. 6510 x 30/100 = 1953/-.

For funeral expenses, Rs. 2,000/- has been awarded, no enhancement is needed as for the damage of property and transportation charges, Rs. 3,000 has also been allowed.

The appeal is partly allowed and the appellants-claimants are further held entitled for compensation in the head of loss of income of 6510+30% i.e. 1953-1/4th i.e. 2116 : 6347 x 12 x 14 : 10,66,296-7,81,200 (awarded by the Tribunal) : Rs. 2,85,096 + Rs. 2,58,360 (30% amount which the tribunal has deducted for contributory negligence from the total amount of compensation). The total enhanced amount comes to Rs. 5,43,456-50000 (paid as interim award) = 4,93,456/- shall be paid to the appellants by the Insurance Company within a period of two months from today along with interest @ 6% P.A., from the date of filing the appeal. The award is modified to that extent.