Punjab-Haryana High Court
Devahuti & Ors vs Bhupinder Singh & Ors on 6 September, 2024
Author: Archana Puri
Bench: Archana Puri
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-9756-2014 (O&M)
Date of Decision: September 06, 2024
Devahuti and others
...Appellants
VERSUS
Bhupinder Singh and others
...Respondents
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.J.S.Cooner, Advocate
for the appellants.
Mr.N.K.Manchanda, Advocate
for respondent No.3.
****
ARCHANA PURI, J.
The present appeal has been filed by the appellants-claimants to
assail the contributory negligence to the extent of 40%, fastened upon the
deceased as well as questioning the adequacy of the compensation, awarded
by learned Motor Accident Claims Tribunal, on account of death of
Rajender Parsad, in a motor vehicular accident, which took place on
04.09.2013.
At the very outset, be it noted that none of the respondents i.e.
driver, owner and insurer, who have been fastened with the liability to pay
compensation, have filed any appeal.
The facts germane, to be noticed, are as follows:-
That, on 04.09.2013, Rajender Parsad was going to his home, on his
motorcycle bearing registration No.HR-01Y-3181, at normal speed, after
discharging his duties from Govt. School (Elementary) village Langar
Chhani. When, he turned his motorcycle towards Bihta Road, after crossing
railway gate of Kesari, in the meantime, bus bearing registration No.HR-
37C-2788, came from the opposite side, at full speed, rashly and negligently
and without blowing horn, on the wrong side and directly hit the motorcycle
of Rajender Parsad, from the driver side, as a result whereof, Rajender
Parsad, fell on the road and received injuries. The accident was witnessed by
Hitesh, son of Rajender Parsad, who was following Rajender Parsad, on the
motorcycle of his friend. The injured was taken to Civil Hospital, Ambala
Cantt, where, he was declared dead. FIR No.141 dated 04.09.2013 under
Sections 279, 304-A IPC was registered at Police Station Ambala, Saha
against respondent No.1.
Claimants, who are widow as well as daughter and son of the
deceased, thereby, asserting themselves to be dependent upon the deceased,
filed the claim petition for seeking compensation.
In pursuance of the notice issued, respondents No.1 in reply
raised preliminary objection, thereby, asserting about claim petition to be
false and frivolous and that amount of compensation claimed is highly
exaggerated. On merits, respondent No.1-driver denied the material
averments and pleaded that no accident took place and he and the offending
vehicle, has been falsely implicated, in the criminal case, by lodging a false
report, with ulterior motive to claim compensation. The offending vehicle
was not involved in any accident and that the petition has been filed, on the
basis of the concocted story. Respondent No.2-owner of the offending
vehicle, in his separate written statement, had taken preliminary objections,
vis-a-vis, maintainability, locus standi and suppression of true facts and
lodging of false FIR against respondent No.1, at the instance of the
claimants, in collusion with the police, with a view to get the compensation.
On merits, taking place of the accident, with the offending vehicle, driven by
respondent No.1, as such, had been denied and false FIR was alleged to have
been got registered against respondent No.1 by the police, in connivance
with the claimants.
Respondent No.3-insurance company, in its separate written
statement, raised various preliminary objections, about the claim petition to
be misconceived and that no accident had taken place and that the petition
has been filed in collusion with respondents No.1 and 2, to extract
compensation. Also, the insurance company took the plea about respondent
No.1, to be not having valid and effective driving licence, at the time of
accident and also took the plea that deceased had suffered injuries and death,
due to slipping down from the motorcycle, as he abruptly came on the main
road, while taking a turn, at a high speed, rashly and negligently and without
caring rules and traffic on the road. Even, the extent of earnings of the
deceased, as such, was disputed.
On the basis of the pleadings, issues were framed and evidence
was adduced by the respective parties.
When the case was at the stage of recording of the evidence of
the respondents, none had made appearance, on behalf of respondent No.2-
owner and he was proceeded against ex-parte. Respondent No.1-Bhupinder
Singh, himself stepped into witness box as RW-1. Respondent No.3-
insurance company tendered into evidence, rukka Ex.R1 and certified copy
of insurance policy Ex.R3 and closed the evidence.
On appraisal of the evidence brought on record, learned
Tribunal concluded about vehicle bearing registration No.HR-37C-2788, to
be involved in the accident and also concluded about said accident to be the
result of contributory negligence, in the ratio of 60:40, of respondent No.1
(driver) and deceased Rajender Parsad.
In the light of the aforesaid conclusion, it was held by learned
Tribunal had deceased Rajender Parsad was 51 years, at the time of accident
and he was serving in Govt. Middle (Elementary) School, at village Langar
Chhani, District Ambala and was drawing salary of Rs.51,135/- per month.
Furthermore, it was also held that since the deceased was Government
employee, the benefit of last drawn salary by the deceased, given to claimant
No.1, widow of the deceased, by the Government of Haryana, ought to be
taken into consideration and taking the same into consideration, learned
Tribunal held that the claimants will continue to receive full salary, till the
age of retirement of deceased Rajender Parsad i.e. 58 years and thereafter,
they will get pensionary benefits and while considering the earnings of the
deceased as Rs.51,135/- per month, as gross salary, at the age of his
superannuation, considered his pension to be Rs.25,567.50, which was
rounded off as Rs.25,600/-, the annual whereof, was worked upon as
Rs.3,07,200/-. After making deduction of 'personal expenses', to the extent
of 1/3rd, the loss of dependency was taken was Rs.2,04,800/-.
However, on the basis of the deceased also having been held to have
contributed towards taking place of the accident, 40% deduction was made
out of Rs.2,04,800/- and the residue was taken as Rs.1,22,880/-. Considering
the same and taking notional age of the deceased as 58 years, multiplier of
'9' was applied. Thus, the compensation was worked upon as
Rs.11,05,920/-, which was rounded off to Rs.11,06,000/-. Besides the same,
Rs.1 lakh was granted, on the count of 'loss of consortium' and another
amount of Rs.25,000/- was granted towards 'funeral expenses. Thereupon,
the compensation was granted under various heads. Besides the aforesaid, on
the count of 'love and affection', an amount of Rs.25,000/- each was granted
to the children of the deceased, who are claimants No.2 and 3. Thus, the
total compensation of Rs.12,81,000/- was granted.
However, the work on of the compensation aforesaid, is
erroneous and do call for re-computation.
Firstly, let us consider the aspect of contributory negligence.
The fact of accident, as such, stands established from the evidence, brought
on record. However, it is categoric claim of the appellants-claimants that the
accident had taken place on account of rash and negligent driving of bus
bearing registration No.HR-37C-2788. Hitesh son of deceased, who is an
eye witness to the accident, has stepped into witness box as PW-4 and in his
affidavit Ex.PW4/A, he has categorically deposed thereby, imputing
rashness and negligence, on the part of the offending bus, which came from
opposite side and had directly hit the motorcycle of his father, as a result
whereof, he had sustained injuries and succumbed to his injuries, caused in
the accident in question. Besides the aforesaid witness, PW-3 Arun Sharma
was examined, who brought the record of summoned file, relating to FIR
No.141 dated 04.09.2013 and he proved the copy of FIR, crime detail form
and post-mortem report, which are Ex.P3 to P5.
To counter the aforesaid evidence, respondent No.1-Bhupinder Singh
stepped into witness box as RW-1 and he had stated that on 04.09.2013,
while he was going to village Kesari, to park his bus, bearing registration
No.HR-37C-2788, while driving it cautiously and at a very slow speed and
on the extreme left hand of the road and when he reached just near the
Kewari railway crossing, a motorcyclist came from opposite direction, while
driving the motorcycle rashly and negligently, while talking on mobile
phone. All of a sudden, the motorcyclist lost control and fell on the road, by
coming on the extreme wrong side of the road and hit the bus, near the
conductor portion.
Considering the aforesaid evidence, learned Tribunal placed
reliance upon the site plan Ex.P4 and concluded that the bus came from the
opposite side and also considering the testimony of RW-1 Bhupinder Singh,
learned Tribunal concluded that the accident had not taken place, on account
of sole negligence on the part of respondent No.1, but the deceased also
contributed in causing the accident, while taking the turn negligently, at
railway crossing and as a result thereof, it was held by learned Tribunal that
there was contributory negligence, in the ratio of 60:40, of respondent No.1-
Bhupinder Singh (driver) and deceased Rajender Parsad.
However, the conclusion so drawn is palpably wrong. Much
reliance has been placed upon site plan Ex.P4, but however, it is pertinent to
note that, author of the site plan, the Investigating Officer has not been
examined. It is the Ahlmad of the Court, who had brought the record, on the
basis thereof, he had proved this site plan of the crime detail form, on the
record. No such reliance can be placed on this site plan. It is settled law that
contributory negligence arises when there has been some act or omission, on
the claimant's/victim's part, which has materially contributed to the damage
caused. 'Negligence' ordinarily means the failure by a person, to use
reasonable care for the safety of either himself or his property, so that he
becomes blameworthy, in part, as an author of his own wrong. No such
evidence, relating to the same, has come on record, except statement of RW-
1 Bhupinder Singh.
The version put forth by RW-1 Bhupinder Singh has been
erroneously considered by learned Tribunal, more particularly, when the
plea, vis-a-vis, accident, as pleaded in the written statement, has not been
considered. In the written statement to the claim petition, respondent No.1-
Bhupinder Singh had taken the plea of denial of accident and false
implication of the offending bus and himself, in the accident. False FIR has
been alleged to have been lodged.
In the light of the same, it is significant to mention that it was,
at the time of appearing in the witness box that Bhupinder Singh had taken
the plea about the accident to have taken place, on account of rash and
negligent driving of the person, who was driving the motorcycle and talking
on the mobile phone. This was never the plea raised in the written statement.
Also, it should be noted that respondent No.1-Bhupinder Singh, is
facing trial, the record, whereof has been proved by way of examination of
PW-3 Arun Sharma. Even, RW-1 Bhupinder Singh, while facing cross-
examination had stated that he never made any representative about his false
implication in the said case.
In the light of the aforesaid, learned Tribunal had erroneously,
on the basis of assumptions and presumptions, observed that the deceased
was required to take every caution, while negotiating the turn near the
railway crossing. This conclusion, as such, could not be drawn by learned
Tribunal, without any material of contributory negligence, coming on
record. In view of the plea of denial taken by the driver of the bus, at first
instance and then stepping into witness box and also remaining silent qua his
implication, in the criminal case, the plea of negligence, beyond something
more than testimony of Bhupinder Singh, as such, does not stand established
and therefore, blameworthiness could not be fastened upon the deceased, to
the extent of 40%, as done by learned Tribunal and thus, on this ground, the
finding of blameworthiness to this extent, as held by learned Tribunal, on
issue No.1, is hereby reversed and this issue is completely decided, in favour
of the appellants-claimants.
Now, let us consider the quantum of compensation, to be
granted to the appellants-claimants.
So far as, the age of deceased Rajender Parsad is concerned, in
view of the matriculation certificate, coming on record as Ex.P2, it stands
amply established that date of birth of deceased was 25.05.1962 and in view
of this recital, at the relevant time, the deceased was 51 years old. Also, it
stands established that the deceased was serving in Government Middle
(Elementary) School at village Langar Chhani, District Ambala and drawing
salary of Rs.51,135/- per month.
However, learned Tribunal had erroneously held that widow of the
deceased was entitled to benefit of last drawn salary of the deceased, every
month, given by Government of Haryana. No doubt, the deceased was a
government teacher and he died in harness and therefore, the claimants shall
be entitled to compensation under the policy of Haryana Compassionate to
the Dependents of Deceased Government Employees Rules, 2006, but
however, the amount paid under the aforesaid Rules, is not paid on monthly
basis. It is one time payment, while calculating the amount, keeping in view
the age of the deceased employee and date of his superannuation. Precisely,
on this account, there was no necessity, on the part of the Tribunal, to have
bifurcated the benefit to be drawn by the claimants, upto the age of 58 years
and to work on of the compensation, to be awarded, in the post-
superannuation period of the deceased.
Rather, the 'work on' of the compensation, was required to be made,
while considering the age of the deceased as 51 years, at the relevant time.
The extent of amount received under the aforesaid Rules of Government of
Haryana, do not figure anywhere, in the evidence. In the given
circumstances, no monthly deductions, as done by learned Tribunal, was
called for.
In the light of the aforesaid, the compensation, ought to be
worked upon, while taking the age of the deceased as 51 years, at the
relevant time. The monthly salary of the deceased was Rs.51,135/-, annual
whereof, comes to be Rs.6,13,620/-
As per income tax slab existing at the relevant time, the tax on the
initial income of Rs.2,00,000/- was 'nil'. The tax for the next amount from
Rs.2,00,000/- to Rs.5,00,000/-, was 10% i.e. Rs.30,000/-. For the next
Rs.5,00,000/- to Rs.10,00,000/-, the tax payable was 20%. In the present
case, the taxable amount was Rs.1,13,620/- (Rs.613620-Rs.5,00,000), the
tax payable whereof, fall in the bracket of 20%, which comes to be
Rs.22,724/-. Thus, the total tax payable comes to be Rs.52,724/-. After
deduction of this amount, the residue annual earnings of the deceased comes
to be Rs.613620-52724=Rs.5,60,896/-.
Looking at the number of dependents, as per Smt.Sarla Verma
vs. Delhi Transport Corporation and anr., 2009(3) RCR (Civil) 77, the
deduction on the count of 'personal expenses' has to be 1/3rd, as done by
learned Tribunal. Thus, after deducting the same, the loss of dependency is
worked upon as Rs.5,60,896-1,86,965(1/3rd)=Rs.3,73,931/-.
Since, the deceased was permanent employee and was 51 years
of age, as per National Insurance Company Limited vs. Pranay Sethi and
others, 2017(4) RCR (Civil) 1009, addition of 15%, ought to be made, on
the count of 'future prospects'. Thus, the earnings of the deceased is worked
upon as Rs.3,73,931+56,089(15%)=Rs.4,30,020/- per annum.
Considering the age of the deceased, as per Sarla Verma's case
(supra), the appropriate and suitable multiplier, to be applied is '11', and
thus, by applying the same, the loss of dependency, works out to be
Rs.430020x11=Rs.47,30,220/-.
Besides the aforesaid, as per 'Magma General Insurance
Company Limited vs. Nanu Ram @ Chuhru Ram and others, 2018 (18)
SCC 130', each of the appellants-claimants are entitled to 'parental',
'spousal' or 'filial' consortium, as required. As held in Pranay Sethi's case
(supra), the compensation payable, at present, on the count of 'loss of
consortium is to the extent of Rs.48,400/- i.e. Rs.48,400x3=Rs.1,45,200/-.
Likewise, on the counts of 'loss of estate' and 'funeral expenses', the
compensation payable, comes to be Rs.18,150/-, on each count.
Considering the same, the compensation payable to appellants-
claimants, on account of death of Rajender Parsad, is re-computed, as herein
given:-
Loss of dependency : Rs.47,30,220/-
Loss of consortium : Rs.1,45,200/-
Loss of estate : Rs.18,150/-
Funeral expenses : Rs.18,150/-
Total : Rs.49,11,720/-
However, be it noted that the deceased was a government
teacher and he died in harness and therefore, the claimants shall be entitled
to the compensation, payable under the Haryana Compassionate to the
Dependents of Deceased Government Employees Rules, 2006. There is
no evidence, as such, coming on record, about the receipt of any amount,
under this scheme. However, PW-2 Devahuti, while facing cross-
examination had stated that her case for salary has been forwarded to the
government and that she has not yet got the salary, as the same is under
process.
Probably, she is stated about the amount to be received under the
aforesaid Rules. In any case, the amount so received under the Haryana
Compassionate to the Dependents of Deceased Government Employees
Rules, 2006, ought to be deducted, in consonance of the judgment passed by
the Hon'ble Supreme Cout, in CA No.9654 of 2016, titled as Reliance
General Insurance Co. Ltd. vs. Shashi Sharma and others, decided on
23.09.2016.
In the light of the same, before disbursement of the
compensation, worked upon aforesaid, learned Tribunal shall verify about
the fact of receipt of extent of amount by all the appellants-claimants, being
beneficiaries under the Haryana Compassionate to the Dependents of
Deceased Government Employees Rules, 2006, by way of taking of the
affidavits of all the appellants-claimants and verify the same, at its own
level. Upon such verification, the amount so received under the aforesaid
Rules, shall be deducted from the compensation, as now worked upon. After
doing the needful, the residue amount of compensation, shall be disbursed in
the ratio of 50% to appellant-claimant No.1-Smt.Devahuti and 25% each to
appellants-claimants No.2 and 3.
On the enhanced amount of the compensation i.e. Rs.49,11,720-
12,81,000=Rs.36,30,720/-, the appellants-claimants shall be entitled to the
interest, at the rate of 6% per annum, from the date of filing of the present
appeal, till realization of the enhanced amount of compensation.
Accordingly, the impugned Award dated 22.08.2014 stands
modified, to the extent, as indicated aforesaid. The residue terms of the
Award, as ordered by learned Tribunal, shall remain the same.
With the above observations, the present appeal stands allowed.
September 06, 2024 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
