Madan Lal Mishra And Ors. vs Abdul Khalid Khan & Ors.
2011 Latest Caselaw 3380 Del

                                            UNREPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+            FAO 346/1998
MADAN LAL MISHRA AND ORS.                 ..... Appellants
                    Through: Mr. Nitinjya Chaudhary,
                             Advocate
             versus
ABDUL KHALID KHAN & ORS.                  ..... Respondents
                    Through: Mr. Joy Basu, Advocate for the
                             respondent No.3

%                         Date of Decision : July 18, 2011
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                         JUDGMENT

: REVA KHETRAPAL, J.

1. This appeal is directed against the judgment and award dated

1st April, 1998 passed by the Motor Accidents Claims Tribunal in

Case No.256/94, whereby a sum of ` 2,37,000/- with interest at the

rate of 12% per annum from the date of filing of the petition was

awarded to the appellants for the untimely demise of one Sanjay

Mishra, who died in a motor vehicular accident.

2. The appellants are the claimants in the claim petition. The

background facts briefly delineated are as follows.

3. On 14.02.1994 at about 1.15 p.m., an accident involving two

vehicles, one being TVS No.DBX-1861 and the other being truck

No.DL-1G-A 1845, took place. The TVS was admittedly coming in

the direction of the East towards Karawal Nagar. The truck was

moving in the opposite direction, that is, towards the West. The TVS

was driven by the deceased Sanjay Mishra, age 22 years, with his

maternal grandmother Smt. Kalawati riding pillion. Allegedly, the

accident occurred due to the rash and negligent driving of the truck by

its driver, the respondent No.1. The truck was owned by the

respondent No.2 and insured with the respondent No.3.

4. The accident resulted in the death of Sanjay Mishra and injuries

on the person of Smt. Kalawati. A claim petition under Section 166

of the Motor Vehicles Act, 1988 for compensation was filed by the

parents and sister of the deceased Sanjay Mishra claiming

compensation in the sum of ` 5 lakhs for his untimely demise. A

separate claim petition was filed by Smt. Kalawati claiming

compensation in the sum of ` 2 lakhs for the injuries sustained by her

in the said accident.

5. A joint written statement was filed by the respondents No.1 and

2 denying the allegation of rash and negligent driving of the truck by

the respondent No.1 and claiming that the accident was the outcome

of the reckless driving at a fast speed of the TVS, whose driver lost

control over it while he was overtaking another vehicle and struck

against the truck moving in the opposite direction. A specific plea of

contributory negligence of the deceased was put forth. The

respondent No.3, M/s. Oriental Insurance Co. Ltd. too filed a written

statement denying its liability to pay compensation, though it

admitted the factum of accident on the date of the accident.

6. PW4 Smt. Kalawati, PW5 Nityanand and PW6 Sube Singh

appeared in the witness box to depose about the manner in which the

accident took place. PW5 Smt. Kalawati, in her testimony deposed

that the accident had taken place on the Wazirabad Bridge with a

truck coming from the opposite direction. She further deposed that

the said truck was being driven in a rash and negligent manner and

after coming on the wrong side of the road, the said truck had hit the

motorcycle from its front. According to her, after the accident the

truck stopped at some distance.

7. PW5 Nityanand, the maternal uncle of the deceased, appeared

in the witness box to depose that on the fateful day he had witnessed

the accident between the alleged offending truck and motorcycle

No.DBX-1861. The truck was coming from the U.P. side while the

motorcycle was going towards Wazirabad. The accident had

occurred because of the negligence of the truck driver who was

driving at a very fast speed and who brought the truck to the middle

of the road. The motorcycle was being driven by his nephew Sanjay

Mishra with his mother Smt. Kalawati riding pillion on the same.

The truck had passed over the head of his nephew, who died at the

spot, while his mother sustained considerable injuries.

8. PW6 Sube Singh next appeared in the witness box to testify

that he had witnessed the accident which resulted in the death of

Sanjay Mishra. According to him, the offending truck came from the

front side at a very fast speed and collided against the TVS and

passed over the head of Sanjay Mishra, who died at the spot. He also

stated that his statement was recorded by the police.

9. The Claims Tribunal, after noting the testimonies of PW4,

PW5 and PW6 and referring to the site plan (Ex.PW4/2) prepared by

the Investigating officer in the course of the investigation, concluded

that the accident had occurred due to the rash driving on the part of

the respondent No.1, driver of the truck as also on the part of the

deceased, driver of the TVS and assessed the fault of each at 50% on

the aforesaid reasoning:

"12. The chargesheet Ex.PW4/1 preferred against Respondent No.1 pursuant to the investigation into FIR Ex.PW1/1 shows that the Investigating Officer had prepared site-plan Ex.PW4/2 during investigation. This site-plan shows that the road on the bridge is 10 paces wide. It also shows that there is a pavement 4 paces wide on either side of the road. It is admitted on both ends the TVS was moving in the direction of East across this bridge while the truck came from the opposite direction. It appears this bridge is used by traffic in both directions and so the drivers are expected to be extra cautious. The site plan Ex.PW4/2 shows that the truck was found 1/2 paces inside the road from its left side border in the direction taken by the truck. This would imply that it was not the truck which had come to the wrong side,

but it was the TVS which was moving in the wrong lane at the relevant time. The place where the TVS was found and the dead body of Sanjay Mishra lay just behind the truck as reflected in the site plan, also relied upon by the Petitioner, confirm that the TVS driver, deceased himself had not been careful as he had used the wrong lane.

13. But then, the above facts can not in any manner diminish or dilute the fault of the truck driver which is implicit on the face of record. The accident occurred during day time, when sufficient day light was available. There can not be any excuse on the plea of poor visibility. The road at the place is straight and the truck driver must have been able to see the on- coming traffic, including as light a vehicle as a TVS. In these circumstances, the very fact that he drove the truck in such manner as to collide against the TVS, albeit a TVS moving in wrong lane, ran over not only the TVS but also the driver and stopped at some distance ahead would show that the truck driver had no proper control over his machine. In these circumstances, I conclude that the accident occurred due to rash driving on the part of the Respondent No.1, driver of the truck, as also on the part of the deceased, driver of the TVS. I would assess the fault of each of them at 50%."

10. Mr. Nitinjya Chaudhary, the counsel for the appellants has

assailed the aforesaid findings of the learned Claims Tribunal on the

ground that the learned Tribunal erred in holding the deceased liable

to the extent of 50% in causing the accident and in deducting 50% of

the compensation awarded by it on account of the alleged

contributory negligence of the deceased. He contended that the

learned Tribunal failed to appreciate that two eye-witnesses (one of

whom was an independent witness whose name finds mention in the

charge-sheet, namely, PW6 Sube Singh) had categorically deposed

that it was the negligence of the driver of the truck which was

responsible for causing the accident. It was further contended that

apart from the two eye-witnesses PW5 and PW6, PW4 Smt.

Kalawati, who was a pillion rider, had given a vivid description of the

accident which resulted in the death of her grand son and in her

sustaining multiple fractures, and had deposed that the offending

truck had come at a very fast speed towards the middle of the road

resulting in the accident. He also contended that the respondent No.1,

viz., the driver of the truck had not appeared before the learned

Tribunal to depose about the manner in which the accident occurred

and, therefore, the learned Claims Tribunal ought to have drawn

adverse inference against the driver of the truck and held the

testimonies of PW4, PW5 and PW6 to be worthy of credence, more

so, as the said witnesses were not even subjected to any cross-

examination.

11. On the aspect of contributory negligence, Mr. Nitinjya

Chaudhary relied upon the following decisions:

(i) K.K. Jain and Another vs. Masroor Anwar and Others,

1990 ACJ 299.

(ii) P. Purushotham Reddy vs. Managing Director,

P.A.T.C., Vellore, 2002 ACJ 1011.\

(iii) Pramodkumar Rasikbhai Jhaveri vs. Karmasey

Kunvargi Tak and Others, 2002 ACJ 1720.

(iv) Ambika Charan Choudhury and Others vs. Divisional

Manager, National Insurance Co. Ltd. and Others,

2004 ACJ 1077.

(v) N.K.V. Bros. (P) Ltd. vs. M. Karumai Ammal and

Others Etc., AIR 1980 SC 1354.

12. Mr. Joy Basu, the learned counsel for the Insurance Company,

on the other hand, heavily relied upon the site plan Ex.PW4/2 to

demonstrate the fact that the truck driver was driving in the truck lane

and it was the deceased motorcyclist who was in the wrong lane,

resulting in the head-on collision. Mr. Basu, in this context, relied

upon the decision of the Supreme Court in the case of Raj Rani and

Others vs. Oriental Insurance Company Ltd. and Others, (2009) 13

SCC 654. In this case, the deceased, who was driving a maruti car,

dashed against the stationary truck parked in the middle of the road,

which allegedly had not put on the lights. The Supreme Court, after

referring to its earlier decisions rendered in Usha Rajkhowa vs.

Paramount Industries, (2009) 14 SCC 71, Pramodkumar Rasikbhai

Jhaveri vs. Karmasey Kunvargi Tak, (2002) 6 SCC 455 and Krishna

Vishweshwar Hede vs. Karnataka SRTC, (2008) 15 SCC 771, held

that some amount of negligence on the part of the deceased could not

be ruled out and that there was contributory negligence on the part of

the deceased, and, accordingly the claimant was entitled to only 50%

of the total amount of loss of dependency.

13. Mr. Basu also referred to and relied upon the decisions of the

Apex Court rendered in Andhra Pradesh State Road Transport

Corporation and Anr. vs. K. Hemlatha and Ors., (2008) 6 SCC 767

and Sri Krishna Vishweshwar Hedge vs. General Manager,

Karnataka State Road Transport Corporation, (2008) 15 SCC 771,

which are to the same effect.

14. On a conspectus of the law enunciated in the above decisions

and keeping in mind the fact that the TVS was moving in the wrong

lane at the time of the accident and had the deceased taken care to

remain in the proper lane the accident in all probability would not

have occurred, I have no hesitation in upholding the findings of the

Claims Tribunal with regard to the contributory negligence of the

deceased in causing the accident to the extent of 50%. In

consequence, the findings rendered by the learned Tribunal on Issue

No.1 are upheld. The necessary corollary is that the appellants are

held entitled to receive only 50% of the total amount of compensation

which shall eventually be found to be due and payable to them by the

insurer of the offending truck.

15. The only other contention pressed by Mr. Nitinjya Chaudhary,

the learned counsel for the appellants, was that the learned Tribunal

erred in the computation of the loss of dependency of the appellants

by applying the multiplier of 10 to the multiplicand which was

assessed by it to be the annual loss of dependency of the appellants.

According to him, the appropriate multiplier which the Claims

Tribunal ought to have applied to the multiplicand of ` 45,900/-

(` 3,825/- per month x 12) would be the multiplier of 18. I pause at

this juncture to note that uncontrovertibly the age of the appellant

No.1 at the time of the accident was 51 years and that of the appellant

No.2 was 50 years. It is settled law that the choice of multiplier is

determined by the age of the deceased or that of the claimants,

whichever is higher (New India Assurance Co. Ltd. vs. Smt. Shanti

Pathak and Ors., (2007) 10 SCC 1 and U.P. State Road Transport

Corporation vs. Krishna Bala and Ors., III (2006) ACC 361 (SC).

The age of the father of the deceased being 51 years and the age of

the mother of the deceased being 50 years at the time of the accident

and the appropriate multiplier for the age group of persons between

51 years and 55 years being the multiplier of 11, the aforesaid

multiplier is held to be the appropriate multiplier to be applied to the

multiplicand constituting the loss of dependency of the appellants.

Thus calculated, the loss of dependency of the appellants comes to

` 45,900/- x 11 = ` 5,04,900/-. The total compensation payable to

the appellants after adding the non-pecuniary damages awarded by

the Claims Tribunal thus comes to ` 5,04,900/- + ` 14,500/- =

` 5,19,400/-, which may be rounded off to ` 5,20,000/-.

16. In view of the contributory negligence of the deceased to the

extent of 50%, the respondents would be entitled to the amount of

` 2,60,000/- only. The award amount, therefore, stands enhanced to

the aforesaid amount with a direction to the respondent Insurance

Company to deposit the balance amount with the interest accrued

thereon with the Claims Tribunal within 30 days of the date of this

order.

The appeal stands disposed of accordingly.

REVA KHETRAPAL (JUDGE) July 18, 2011 km