Rajasthan High Court - Jodhpur

Smt. Dhapu And Ors vs M/S Swastic Roadwayas And Anr on 30 January, 2021

Bench: Rameshwar Vyas

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 213/2002

1. Smt. Dhapu Wd/o late Shri Kajod Meena

2. Prabhu D/o late Shri Kajod Meena

3. Kumari Kamlesh D/o late Shri Kajod Meena

4. Kumari Sheela D/o late Shri Kajod Meena

5. Kumari Sampat D/o late Shri Kajod Meena

6. Kumari Laxmi D/o late Shri Kajod Meena

7. Shri Gyan S/o late Shri Kajod Meena

8. Kumari Sunita D/o late Shri Kajod Meena All r/o village Kuradia, Tehsil Jahajpur, District Bhilwara, Appellants-claimants Nos. 2 to 8 are minors through their natural guardian and mother Smt. Dhapu widow of late Shri Kajod Meena, appellant-claimant No.1.

----Appellants Versus

1. M/s. Swastic Roadways, 38, New Kherapati Colony, Gawalior (M.P.) through Partner Shri Pramod Jain S/o Atma Ram Jain, r/o 38, New Kherapati Colony, Gwalior (M.P.)

2. Dharmendra Singh S/o Shamsher Singh Chouhan, r/o Tirupati Colony, Gwalior (M.P.) through M/s. Swastic Roadways.

3. National Insurance Company Ltd., Divisional Office, Bhilwara.

                                                                ----Respondents


For Appellant(s)         :     Mr. Shubham Modi for
                               Mr. J.S. Rathore
For Respondent(s)        :     Mr. S.R. Paliwal for
                               Mr. Anil Bachhawat



          HON'BLE MR. JUSTICE RAMESHWAR VYAS

                                Judgment

30/01/2021

The instant appeal under Section 173 of the Motor Vehicles

Act, 1988 for enhancement of compensation has been filed by the

legal representatives of deceased - Ramswaroop Meena against

the award dated 28.05.2001 passed by the Motor Accident Claims

(2 of 7) [CMA-213/2002]

Tribunal, Gulabpura (afterwards referred as 'Tribunal') in MAC

Case No.239/2000, whereby, learned Tribunal has awarded a sum

of Rs. 1,21,500/- as compensation.

Brief facts of the case are that a claim petition under Section

166 of the Act of 1988 was filed by mother and siblings of

deceased Ramswaroop Meena, who died in a road accident on

13.03.1998 with the averments that at the bus stand of village

Kuradiya deceased was standing on the raw pavement towards the

roadside; at the relevant time a Truck bearing registration

No. MP07-G-2495 came from Devali being driven rashly and

negligently by its driver, hit the deceased; the offending Truck

dragged the deceased nearly 30-35 feet; on account of which

deceased sustained grievous injuries and succumbed to the

injuries while taking to the hospital at Jahajpura. It was averred

that had the truck driver taken the care while driving the vehicle,

the accident could have been avoided. With the relevant several

averments, a sum of Rs. 14,25,000/- as compensation money was

claimed from driver & owner of the Truck and Insurance Company.

As per reply filed by the Insurance Company the Truck driver

was not guilty of negligence; deceased Ramswaroop Meena

himself was negligent as he was moving here & there negligently;

in alternate it was claimed that contributory negligence should be

attributed to the deceased.

During the inquiry mother of the deceased Dhapu was

examined as AW-1; no evidence was produced by non-applicant.

After due inquiry, learned Tribunal on the basis of site map

(Exhibit-P/2) came to the conclusion that at the time of accident

Ramswaroop Meena was not on raw pavement; the Truck was

coming in its left side; before crossing the road deceased should

(3 of 7) [CMA-213/2002]

ensure whether any vehicle is coming or not and thereafter cross

the road, hence deceased was also liable for this accident in equal

proportion. It was also observed by learned Tribunal that since

space was available on right side of the road, the Truck driver was

in a position to avoid the accident. Learned Tribunal came to the

conclusion that the accident took place due to negligence of both

the parties in equal proportion. Learned Tribunal by its impugned

order awarded a sum of Rs. 1,21,500/- as compensation.

Aggrieved by the quantum of compensation, the claimants

preferred the instant appeal.

It was submitted by learned counsel for the appellants that

the learned Tribunal erred in arriving at the conclusion that the

deceased was also negligent while coming on the road; no

evidence is available on record for the above conclusion; 50% of

the negligence has wrongly been attributed to the deceased

without any material on record.

It was further submitted that had the Truck driver taken care

in driving the vehicle, the accident could have been avoided. It

was submitted that this ill-fated accident took place solely on

account of rash and negligent driving of respondent No. 2.

With regard to quantum of compensation, it was contended

by learned counsel for the appellants that looking to the number

of dependents only 1/5th amount should be deducted from the

income of the deceased towards personal expenses. Learned

Tribunal wrongly deducted 1/3rd amount from the income of the

deceased. It was contended that since deceased was 22 years of

age, 40% of the amount of income should be awarded as loss of

future prospects.

(4 of 7) [CMA-213/2002]

Learned counsel also argued that only Rs. 25,000/- has been

awarded for loss of love & affection and Rs. 2,000/- towards

funeral charges, which is liable to be enhanced in terms of

judgment of Hon'ble Supreme Court in the matter of National

Insurance Company Ltd. Vs. Pranay Sethi & Ors. : (2017) 16 SCC

680.

On the other hand, learned counsel for the respondent

Insurance Company submitted that the deceased was also

negligent while crossing the road; the accident took place on

account of joint negligence of deceased and the Truck driver;

Truck driver alone was not liable for this accident, hence learned

Tribunal was justified in deducting 1/2 amount for contributory

negligence.

It was also submitted by learned counsel for the respondent

that the deceased was unmarried and as per the pronouncement

of Hon'ble Supreme Court in the case of Sarla Verma v. Delhi

Transport Corporation : (2009) 6 SCC 121 1/2 of the amount

should be deducted towards personal expenses of the deceased.

I have heard learned counsel for the parties and perused the

material available on record.

Regarding contributory negligence, after perusing the record

it is clear that the Truck driver was not produced to rebut the case

of the claimants; learned Tribunal was not correct in arriving to

the conclusion of contributory negligence solely on the basis of

site map (Exhibit-P/2). The site map reveals that Truck driver had

enough opportunity to avoid the accident. There was ample space

left on right side of the road for the Truck driver to avoid this ill-

fated accident, but the Truck driver hit the deceased, who was just

near the road corner. There is no evidence on record to presume

(5 of 7) [CMA-213/2002]

that at the time of accident deceased was crossing the road

negligently. The conclusion regarding contributory negligence

arrived at by the learned Tribunal is based on conjectures and

surmises. In the considered opinion of this Court, the accident

took place solely on account of rash and negligent driving of the

Truck driver and there is nothing on record to hold that deceased

was also liable for this accident.

There is no dispute regarding income of the deceased.

Learned Tribunal has assessed Rs.1,500/- as monthly income of

the deceased.

As per the law laid down by Hon'ble Supreme Court in the

matter of Pranay Sethi (supra) while determining the income, an

addition of 40% of the established income should be made where

the deceased is below the age of 40 years and is self employed.

Since in the present case deceased was below 40 years of age and

was self employed, 40% of the income should be added to the

annual income of the deceased while calculating the loss of

income to the claimants.

In the matter of Pranay Sethi (supra) Hon'ble Supreme Court

has held that where the family of the bachelor is large and

dependent on the income of the deceased, as in a case where he

has a widowed mother and large number of younger non-earning

sisters or brothers, his personal and living expenses may be

restricted to one-third and contribution to the family will be taken

as two-third.

In the present case also the deceased was bachelor, Dhapu is

widow mother of deceased and claimant Nos. 2 to 8 are minor

brothers and sisters of deceased, hence as per the principles

enunciated by Hon'ble Supreme Court in the matter of Pranay

(6 of 7) [CMA-213/2002]

Sethi (supra), 1/3 income should be deducted towards personal

expenses of the deceased.

As per the law laid down by Hon'ble Supreme Court in

Pranay Sethi (supra) on conventional heads, namely, loss of

estate, loss of consortium and funeral expenses amount has been

fixed as Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively.

In view of the material available on record and the law laid

down by Hon'ble Supreme Court in Pranay Sethi (supra) and Sarla

Verma (supra), the appellants-claimants are entitled to get

compensation in the following terms:-

Monthly income                     Rs. 1,500/-
Annual income                      Rs. 18,000/-
After adding 40% towards           Rs. 25,200/-
future prospects
Less 1/3 towards personal Rs. 16,800/-
expenses
Net annual loss                    Rs. 16,800/-

Loss of dependency                 Rs. 3,02,400/-
Add general expenses               Rs. 70,000/-
Total compensation                 Rs. 3,72,400/-
awardable
Less amount awarded by the 1,21,500/-
Tribunal
Enhanced amount of                 Rs. 2,50,900/-
compensation

In view of the above, the appellants-claimants would be

entitled to get a further sum of Rs. 2,50,900/-, which shall carry

interest @ 6% per annum from the date of filing claim petition i.e

12.10.1998.

Consequently, the appeal is partly allowed. The award dated

28.05.2001 is modified to the extent that claimants would be

entitled to a compensation of Rs. 3,72,400/- instead of

Rs. 1,21,500/- as awarded by the Tribunal. On the enhanced

(7 of 7) [CMA-213/2002]

amount of compensation, the appellants-claimants would be

entitled to interest @ 6% per annum from the date of claim

petition till the date of actual payment. The enhanced