Delhi High Court

Sohan Thakur vs Anil Kumar & Another on 6 December, 2010

Author: Reva Khetrapal

                                      REPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+             MAC.APP.NO. 482/2007


SOHAN THAKUR                                        ..... Appellant
                             Through:   Mr. D.D. Singh and Mr. Navdeep
                                        Singh, Advocate.
                    versus

ANIL KUMAR AND ANR.                                 ..... Respondents
                  Through:              Mr. Bijender Singh, Advocate,
                                        for the respondents no.1 and 2.
                                        Mr.S.L. Gupta and Mr. Ram
                                        Ashray, Advocates, for the
                                        respondent-NIC.

                    AND

+            MAC. APP. NO. 483/2007

SHOBHA SHARMA                                        .....Appellant
                             Through:   Mr. D.D. Singh and Mr. Navdeep
                                        Singh, Advocate.

                    versus


ANIL KUMAR AND ANR.                                 ..... Respondents
                  Through:              Mr. Bijender Singh, Advocate,
                                        for the respondents no.1 and 2.
                                        Mr.S.L. Gupta and Mr. Ram
                                        Ashray, Advocates, for the
                                        respondent-NIC.

%                            Date of Decision : December 6, 2010


MAC APP. Nos.482/2007 & 483/2007                           Page 1 of 12
 CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?                                    YES

2. To be referred to the Reporter or not?                  YES

3. Whether judgment should be reported in Digest?          YES

                          JUDGMENT

: REVA KHETRAPAL, J.

By way of this judgment it is proposed to dispose of two

appeals arising under the Motor Vehicles Act, 1988 (for short 'the

Act') viz., MAC App. No. 482/2007 Sh. Sohan Thakur vs. Anil

Kumar and Ors. and MAC App. No. 483/2007 Smt. Shobha Sharma

vs. Anil Kumar and Ors. Both the appeal arises out of the same

judgment and award dated 2nd April, 2007 relating to a motor

vehicular accident which had taken placed on 2nd December, 2002

within the jurisdiction of police station Sadar Rajpura, Punjab.

2. The facts relevant for the disposal of both the appeals are as

follows:

One Kuldeep Sharma along with one Kanti Patel was going for

official work to Ludhiana in car bearing no. DL-7-C-7197. The car

was being driven by Sohan Thakur, the appellant in MAC App. No.

482/2007. At about 4.20 p.m. when they reached the G.T. Road,

near Surindra Factory, Ghagar, suddenly a truck bearing no. PAT-

5911, driven by the respondent no.1 rashly and negligently, took a U-

turn from the Rajpura side and appeared in front of the car. The car

driver applied the brakes but could not avoid the accident which

ensued. The car struck the back side of the truck resulting in the

instantaneous death of Kanti Patel, who was the occupant of the first

seat. The occupant of the back seat, Kuldeep Sharma, suffered

grievous injuries and remained under treatment till he ultimately died

on 7th February, 2003.

3. Two claim petitions were instituted, one by the driver of the

car-Sohan Thakur, the appellant in MAC App. No. 482/2007 and the

other by the legal representatives of the deceased Kuldeep Sharma,

being MAC App. No. 483/2007. In the written statements filed by

the driver, owner and insurer of the offending truck, the factum of

accident was categorically denied, and consequently the liability to

pay compensation by the respondent no.3, Insurance Company. Both

the cases proceeded to trial and after considering the evidence

adduced on record, the Motor Accident Claims Tribunal held that it

was clear from the evidence that the car driver had run into the truck

which had almost crossed by taking a U-turn and thus, the car driver

was also negligent and blameworthy. The liability of the car driver

was assessed at 20% while that of the truck driver was fixed at 80%.

Thus, the learned Motor Accident Claims Tribunal while fixing the

quantum of compensation payable to the appellant, Sohan Thakur,

after assessing him to be entitled to a total compensation of

` 1,07,332/- deducted 20% towards contributory negligence and held

the net compensation payable to be in the sum of ` 85,866/- with

interest @ 7.5 % p.a. from the date of the filing of the petition till the

date of award.

4. Likewise, in the case of the compensation awarded to the legal

representatives of the deceased Kuldeep Sharma the net compensation

payable to the claimants was held to be ` 8,59,410/- with interest @

7.5% p.a. after deducting 20% of the amount on account of the

contributory negligence of the driver of the car.

5. Aggrieved by the aforesaid award, the appellants have filed the

present appeals, both in respect of the compensation awarded to the

appellant Sohan Thakur and the compensation awarded to the legal

representatives of the deceased Kuldeep Sharma.

6. The learned counsel for the appellants, Mr. D.D. Singh,

forcefully contended that the appellant Sohan Thakur was not at all

responsible for the accident and the accident occurred on account of

the sole negligence of the offending truck. Accordingly, he

contended that the deduction of 20% of the compensation towards the

contributory negligence of the car driver was unwarranted and

unjustified, particularly in the case of Kuldeep Sharma, who was only

a passenger in the car. Heavy reliance was placed by him upon the

site plan Ex.PW4/1 to contend that the driver of the car keeping in

view the fact that the truck suddenly appeared in front of the car had

been incapable of avoiding the accident.

7. The learned counsel for the respondents, on the other, sought to

support the award by contending that the Motor Accident Claims

Tribunal had rightly assessed the appellant Sohan Thakur to be guilty

of contributory negligence.

8. A bare glance at the site plan shows that the car was coming on

the straight road, i.e. the G.T. Road from Ambala towards Raj Pura.

This being a Highway, the driver of the car could not have foreseen

that a truck would suddenly appear in front of the car and thus could

not be expected to apply sudden brakes, more so, when he was on a

Highway and a vehicle on a Highway ordinarily proceeds on a faster

pace than a vehicle in a densely populated area and is liable to turn

turtle on the application of sudden brakes. This being so, in my

view, it was incumbent upon the truck driver to have waited at the

crossing before taking a U-turn. Apparently, the truck driver

presumed that any vehicle coming from the opposite direction would

stop in order to enable the truck to pass first. This kind of belief is

often entertained by the drivers of trucks and other heavy vehicles,

who think that they have the right of way by virtue of the fact that

they are heavy vehicles, resulting in disastrous accidents and tragic

deaths. Hence, in my view, this is not a case where apportionment of

liability was justified and it is the truck driver alone who should have

been held wholly responsible for having caused the accident resulting

in the death of two persons, one at the spot and the other after

considerable sufferance, apart from injuries to the appellant.

9. It deserves to be noticed at this juncture that in the written

statements filed by the driver and owner of the truck, the involvement

of the truck in the accident was disputed. Thus, obviously there was

no plea of contributory negligence. Then again, PW4 Sohal Lal

Thakur, the driver of the car, though he appeared in the witness box to

testify the manner in which the accident took place, not even a

suggestion was put to the witness to the effect that his negligence had

any role to play in the accident. Accordingly, the finding of the

Tribunal apportioning 20% liability on the appellant Sohan Lal

thakur is without justification and cannot be sustained.

10. As regards the quantum of compensation awarded by the

Tribunal, the grievance of the appellant is that the Tribunal did not

take into consideration the future prospects of the deceased Kuldeep

Sharma while computing his income for the purpose of calculation of

compensation awardable to his legal representatives. The only other

grievance is that a very meager amount was awarded towards non-

pecuniary damages.

11. As regards the future prospects of the deceased, the learned

Tribunal has observed that there is no evidence on record to establish

his future prospects. Even the qualification of the deceased is not

forthcoming on record to assess the chances of future prospects. I

find from the testimony of PW5, Sh. Gaurav Jain, the employer of

the deceased, that the learned Tribunal was right in stating that the

qualification of the deceased was not forthcoming on record. A

pointed question was put in cross-examination to PW5, Sh. Gaurav

Jain, as to the qualification of the deceased, to which the witness

replied that he could not tell his qualifications. This being so and the

deceased being 53 years of age at the time of the accident, the

Tribunal rightly concluded that the income of the deceased could only

be taken at ` 5300/- per month as testified by his employer. Thus

calculated, the loss of dependency works out to ` 6,99,000/-and after

deducting 1/3rd therefrom towards the personal expenses of the

deceased, it comes to ` 4,66,000/-. Apart from the amount awarded

by the Tribunal towards the loss of dependency, the appellants, as

legal representatives of the deceased, were also awarded a sum of

` 5,87,782/- towards his medical expenses.

12. As regards the non-pecuniary losses, a sum of ` 5000/- was

awarded for the transportation of the body and the funeral expenses,

which appears to be on the lower side and is accordingly enhanced to

` 15,000/-. The appellants have also been held entitled to a sum of

` 5000/- towards loss of estate and ` 5000/- towards loss of

consortium. The award for loss of consortium being on the lower

side, a sum of ` 10,000/- is awarded towards loss of consortium.

Thus, the total compensation payable to the appellants in MAC App.

No. 483/2007 works out to ` 10,89,000/- which is rounded off to `

10,90,000/-.

13. As regards the quantum of compensation awarded to the

appellant Sohan Thakur, the learned counsel for the said appellant

contended that the award amount deserves to be enhanced, keeping in

view the fact that the Tribunal after going through the evidence of the

appellant, who appeared in the witness box as PW4, arrived at the

conclusion that there was nothing on record to discredit his evidence

with regard to his employment and income. I find from the testimony

of PW4, Sohan Lal Thakur that he stated that he had sustained

fractures and was operated upon at Jain Hospital, where he remained

for about one month. This fact is corroborated by the discharge

summary and bills, Ex.PW4/3 to Ex.PW4/24. The witness also

deposed that at the time of the accident he was employed with

Sidharth Impex India at Nai Sarak and was drawing a salary of

` 3500/- besides overtime of ` 500/- per month, and due to the

injuries sustained by him, he could not join his duties for six months.

He also stated that he had spent a sum of ` 1,00,000/- towards

treatment, special diet and conveyance and had undergone

considerable pain and suffering.

14. The Tribunal after considering the evidence of the appellant

held him to be entitled for compensation under the following heads:

`

1. Pain & Suffering 50,000/-

      2.    Actual medical expenses               32,732/-
      3.    Special diet and conveyance           10,000/-
      4.    Loss of leave/income for a period
            of three months                       9,600/-
      5.    Reasonable expenses on attendant      5,000/-

             TOTAL                                1,07,332/-

15. I find no infirmity in the compensation awarded by the

Tribunal under the Head numbers 1,2,3 and 5. However, the

compensation awarded under Head no.4 i.e. 'loss of leave/income' is

inadequate keeping in view the fact that the injured was a driver and

there appears to be no reason to disbelieve his statement made on

oath that he could not drive for a period of six months. For this

period, therefore, the loss of income works out to ` 21,000/-, i.e.,

` 3,500 x 6. Thus, the total amount of compensation payable to the

appellant Sohan Thakur works out to ` 1,17,832/-, which is rounded

off to 1,18,000/-.

16. While granting relief to the appellants in both the cases, the

Tribunal has awarded interest @ 7.5% p.a. from the date of the

petition till the date of the award (excepting for the periods not

specifically allowed) and future interest @ 9% after one month of the

award till realization. The rate of interest awarded appears to be just

and proper and requires no interference.

17. The award in MAC App. No. 482/2007 and 483/2007 is

accordingly modified to the extent stated above. The respondent no.3

being the insurer of the offending vehicle is directed to make the

payment of the compensation awarded by this Court within one

month from the date of passing of this order along with the interest

thereon.