State Of Haryana vs Bhagwan Devi And Ors.
1998 Latest Caselaw 308 Del

JUDGMENT

Usha Mehra, J.

1. State of Haryana being aggrieved with the order of the Motor Accident Claims Tribunal (in short the Tribunal) has challenged the same primarily on the grounds that the Tribunal did not appreciate that it was the deceased Nand Kishore the cyclist who was at fault. That there was no negligence of the driver of the Haryana Roadways bus bearing No. HYA-1630. Moreover, the Tribunal erroneously applied the multiplier of 15 years. Tribunal wrongly assessed the pecuniary loss at Rs. 3,600/- per month. In fact the dependency loss works out to be much less.

2. In order to appreciate the challenge, the relevant facts of the case are that Nand Kishore (deceased) was going on his cycle at Mall Road. He was on the left side (correct side) of the road. Hardly had he reached near CRP Quarters when Haryana Roadways bus coming from opposite direction driven rashly and negligently in a fast speed hit a motor-cycle driven by one K.L. Pasricha (of F. A.O. No. 222/83). Motor-cycle was going ahead of the said bus. After hitting the motor-cycle the said bus came on the wrong side of the road and knocked down Nand Kishore. After hitting Nand Kishore the bus could not stop because it was driven in a fast speed. It drove down for a quite considerable distance before coming to a halt. The cyclist Nand Kishore aged 24 years was killed at the spot. Because of this accidental death of Nand Kishore his legal heirs i.e. his mother and father filed a petition claiming compensation of Rs. 1,50,000/- (Rupees one lakh fifty thousand only) under the Motor Vehicles Act (in short the Act). That petition was filed on22nd May, 1977. During the pendency of that petition father of the deceased Shri Jaman Dass died. His name was deleted from the array of parties on 10th February, 1983. The Tribunal by the impugned award awarded a sum of Rs. 59,000/- with costs. So far as respondents 2 and 3 are concerned i.e. Haryana Roadways no liability was fixed on them. Interest was to accrue against respondents 1 and 4 if they failed to make payment of the awarded amount within two months.

3. Mr. I.S. Goel appearing for the appellant contended that the testimony of Mr. Sewa Ram (PW1) and of Mr. Anoop Singh (PW 2) are contradictory to each other. Their testimony cannot be relied upon. PW 1 and PW 2 could not prove that any portion of the bushit the cycle. This contention of Mr. Goel is against the record. In fact Mr. Sewa Ram (PW 1) was the eye witness. He saw the happening of the accident. He testified that bus bearing No. HYA-1630 was coming from Azadpur side on Mall Road. A motor-cycle was going ahead of the bus. The bus came at a very fast speed and without blowing any horn the said bus hit the motor-cycle and thereafter the bus went on wrong side of the road and knocked down the cyclist Nand Kishore. Thereafter the bus came to the correct side of the road. He further testified that the cyclist was almost killed at the spot. The cyclist was removed to the hospital. According to his perception the speed of the bus was between 70 and 80 KMPH. He, however admitted that bags were hanging on the carrier of the cycle but denied that the cyclist lost balance due to heavy weigh t or that it was cyclist who rammed into the bus. Mr. Anoop Singh (PW 2) another eye witness was present on the spot with his friend at the beetles shop near Alpana Cinema on the corner of the Princess Road when he witnessed this accident. He in material terms corroborated the testimony of Mr. Sewa Ram, PW 1. Mr. Goyal has not been able to point out any material contradiction in the testimony of Mr. Anoop Singh and that of Mr. Sewa Ram. Mr. Anoop Singh, PW2 also testified that the bus after hitting the motor-cycle went to the wrong side of the road and hit the cyclist who was coming from the opposite direction. The cyclist was almost killed on the spot. Mr. Anoop Singh knew Nand Kishore from before. Nand Kishore was running a shop in Tagore Park. Mr. Anoop Singh had in fact informed the brother of Nand Kishore about this accident. The contention of Mr. Goyal that Mr. Anoop Singh was standing at 100 yards away from the place of accident hence could not have seen the accident, to my mind, this argument is not only devoid of merits but has no substance as facts on record fully proves that PW 2 had in fact witnessed the accident. 100 yards is not such a distance that one could not see the bus hitting a motor-cycle and then the cyclist. Because of this accident anybody who was standing nearby would have ran to the spot to see what happened. That is precisely what Mr. Anoop Singh did. Contention of Mr. Goyal that cyclist Nand Kishore was carrying heavy bags on his carrier, therefore, lost balance, this suggestion had in fact been denied by Sewa Ram (PW 1). If deceased was carrying packs of cigarettes that could not have made his cycle imbalance unless he was hit by a fast moving vehicle as in this case the bus. Similarly, Ms. Amrik Kaur (PW 12) another eye witness of the accident described how the accident was caused by the bus. She was sitting on the pillion seat of motor-cycle No. CHU-7469. She had taken lift from Mr. Pasricha. According to her, it was the bus driver who drove the bus in a rash and negligent manner. He was driving the bus in a very fast speed. The bus first hit the motor-cycle and thereafter hit the cycle. Upto the stage the bus hit the motor-cycle she was an eye witness. Thereafter Sewa Ram (PW 1) and Anoop Singh (PW 2) testified that bus came on wrong side and hit the cyclist who was on his correct side of the road. Mr. Krishan Lal (PW 29) also deposed that there was negligence on the part of the bus driver who was driving the bus in a rash and negligent manner without blowing horn hit him and thereafter went on wrong side of the road and knocked down the cyclist who was coming from the opposite direction.

4. From the narration of above events, it is clear that negligence was of the bus driver and not of the cyclist Nand Kishore who was coming on the correct side of his road. So far as the bus knocking the cyclist is concerned, I find no contradiction in the testimony of Sewa Ram and Anoop Singh. Their version of the accident is consistent that it was the bus which went on the wrong side of the road after hitting the motor-cycle and knocked down the cyclist Nand Kishore.

5. On behalf of the Haryana Roadways only evidence of Mr. Ram Chander, the driver was adduced. He admitted that in order to save the motor-cycle he swerved the bus to the other side. The moment he admitted that he swerved to the other side it is apparent that he went on the wrong side of the road and hit the cyclist who was coming from the opposite direction. It will not be correct for the appellant to contend that negligence was that of the cyclist and not of the driver. Rather the testimony of Mr. Ram Chander the driver of the bus also proves the case of the claimants. In fact RW 1 Mr. Ram Chander, the driver of the bus never denied that Nand Kishore, the cyclist was not hit by his bus or that there was any negligence on the part of the cyclist. Even the Conductor of the bus Harbhajan Singh (RW 2) 'nowhere stated that Nand Kishore the cyclist was at fault or that the bus did not hit his cycle. From the admitted facts on record proved through the evidence of PW 1 and PW 2 coupled with the testimony of Mr. K.L. Pasricha and the admission of the bus driver and conductor it is apparent that the bus was driven rashly and negligently by its driver Ram Chander. He hit the cyclist who was coming on the right side of his road. The site plan Exhibit PW 5/1 also establish that there was no negligence of the cyclist. When confronted when Exhibit PW 5 /1 Mr. Goel could not deny that the bus after striking the motor-cycle went to the wrong side of the road and there knocked down the cyclist. In view of my above discussion, I find no merits in the submission of Mr. Goel. There was no negligence on the part of the cyclist. He was killed by the bus driver who was driving the bus in a rash and negligent manner.

6. Having held that negligence was that of the bus driver, we now turn to the question of dependency loss. The material witness is the brother of the deceased who appearing as PW 41 testified that deceased was running a shop of general merchant in Kingsway Camp. Monthly income of the deceased from the said shop was between Rs. 600/- to Rs. 700/-. Out of which he used to pay a sum of Rs. 500/ - to his mother for running the household. The deceased enjoyed good health. There was no rebuttal evidence hence the Tribunal accepted the evidence of PW 41 and concluded that the monthly income of the deceased was Rs. 600/-. I see no reason to disagree with the same nor Mr. Goel has been able to show otherwise. However, the Tribunal fell in error in deducting 50% on account of personal expenses of the deceased. Respondent in her objections has challenged deduction at 50% out of the earning of the deceased. To my mind, the objection of the appellant that monthly income was wrongly arrived by the Tribunal is without substance nor I find any fallacy in applying 15 years' multiplier. While applying the multiplier the Tribunal took into consideration the age of the deceased and the legal heirs which in this case had been rightly applied. I, therefore, find no merit in the appeal. The same is accordingly dismissed with costs.

7. Reverting to the objections raised by the respondent mother of the deceased wherein she has challenged the deduction at 50% as personal expenses of the deceased. Admittedly, monthly income of the deceased Nand Kishore stood proved by the testimony of PW 41. It has also come on record that deceased used to give Rs. 500/- per month to his mother for running the household. It is a fact that the deceased was a bachelor and after marriage he would not have contributed Rs. 500/- to his mother but at the same time we cannot loss sight of the fact that if Nand Kishore had been alive he would have earned much more from his business. Therefore, while awarding the amount we have to take into consideration future prospects of the deceased. The Tribunal fell in error in allowing deduction of 50% for personal expenses of the deceased. Taking into consideration that the deceased was running a shop in 1977 and was earning between Rs. 600/- to Rs. 700/- per month, on that basis monthly earning of the deceased can safely be worked out at Rs. 600/- per month out of which deduction at the rate of 1/3rd can be allowed for personal expenses of the deceased. Thus the pecuniary loss works out to Rs. 450/- per month or Rs. 5,400/- per year. Applying the multiplier of 15 years which was applied by the Tribunal the loss suffered by the family comes to Rs. 81,000/- which I treat to be just and fair in the facts and circumstances of this case. The Tribunal ought to have awarded interest from the date of the petition unless he came to the finding that there was delay negligence on the part of the claimants in pursuing the claim petition. Having not said so, to my mind, interest ought to have been awarded in favour of the claimants from the date of the petition till realisation. I order accordingly that the respondent/claimant would be entitled to interest at the rate of 12% per annum from the date of petition till realisation. It would not be out of place to mention that appellant moved an application for stay against release of the awarded amount. This Court at the instance of the appellant did not permit the amount to be realised in favour of the claimants. On account of this reason, I hold that the claimant would be entitled to interest on the amount even though deposited in Court but was not allowed to be released in favour of the claimants.