Smt. Bharosi Bai Alias Ram Bharosi ... vs Radhey Shyam S/O Goru
2022 Latest Caselaw 2589 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         S.B. Civil Miscellaneous Appeal No. 2778/2019

1.     Smt. Bharosi Bai Alias Ram Bharosi Bai W/o Late Tejpal,
       Aged About 32 Years, Resident Of Heerapura, Tehsil
       Nenwa, District Bundi (Raj.)
2.     Mona D/o Late Tejpal Aged About 11 Years, Minor
       Through Natural Guardian Mother Smt. Bharosi Bai W/o
       Tejpal Meena, Resident Of Heerapura, Tehsil Nenwa,
       District Bundi (Raj.)
3.     Bhoma D/o Tejpal, Aged 7 Years, Minor Through Natural
       Guardian Mother Smt. Bharosi Bai W/o Tejpal Meena,
       Resident Of Heerapura, Tehsil Nenwa, District Bundi (Raj.)
4.     Kanhaiya Lal S/o Kalyan, Aged About 59 Years, Resident
       Of Heerapura, Tehsil Nenwa, District Bundi (Raj.)
5.     Sohani W/o Kanhaiya Lal, Aged About 52 Years, Resident
       Of Heerapura, Tehsil Nenwa, District Bundi (Raj.)
                                                                  ----Appellants
                                   Versus


1.     Radhey Shyam S/o Goru, By Caste Raiger, Resident Of
       Galwaniya, P.s. Sop, District Tonk (Raj.) (Driver Of Teactor
       No. Rj-26-Ra-2470)
2.     Gyarsi Lal S/o Nathulal Bairwa, Resident Of Rahim Nagar
       (Nato Ka Tapra) P.s. Sop, District Tonk (Raj.) (Owner Of
       Tractor No. Rj-26-Ra-2470)
3.     The New India Assurance Company Limited, Registered
       Office 87 Mg Roa Fort, Mumbai-400001 (Insurance
       Company Of Tractor No. Rj-26-Ra-2470)
                                                                ----Respondents

For Appellant(s) : Ms. Barkha Jain for Mr. Rohit Khandelwal For Respondent(s) : Mr. N.L. Verma Mr. Hemraj Rodiya

HON'BLE MR. JUSTICE BIRENDRA KUMAR

(2 of 7) [CMA-2778/2019]

JUDGMENT RESERVED ON : 04/03/2022 DATE OF PRONOUNCEMENT OF JUDGMENT: 29/03/2022

1. The appellants are not satisfied with the quantum of

compensation decided by the Motor Accident Claims Tribunal

No.1, Bundi in Motor Accident Claim No. 673/2014 by award

dated 7.2.2019, hence this appeal under Section 173 of the

Motor Vehicles Act.

2. The claimants had claimed Rs. 71,90,000/- for death of

Tejpal, aged about 29 years, the husband of claimant No.1

and father of claimant Nos.2 and 3 as well as son of claimant

Nos. 4 and 5. The learned Tribunal awarded Rs. 6,84,000/-

along with interest @ 7.5% from the date of institution of the

claim case.

The case and claim of the claimants is that on 12.7.2014

a tractor bearing Registration RJ-26-RA-2470 was parked on

the mid of the road without any light or indicator of its

identification. Tejpal was coming on a motor-cycle and hit the

tractor leading to his death, during the course of treatment.

At the time of death Tejpal was engaged in agriculture work

as well as dairy farming and was earning Rs. 10,000/- per

month.

3. The claimant examined two witnesses AW/1 Bharosi Bai,

wife of the deceased. She has deposed about the age and

income of the deceased and the source of income. The

witness has not been cross-examined on the age and source

(3 of 7) [CMA-2778/2019]

of income. AW/2 Badri Lal is the eye-witness of the

occurrence. He has specifically stated that he was on another

motor cycle and saw that on the mid of the road, the tractor

was parked without any light and indicator in function. As

such due to negligence of the tractor in the darkness of night,

the motor cycle of Tejpal dashed against it which caused

death of Tejpal.

4. The learned Tribunal did not accept the claim of income

of the deceased and took income of a daily wager as

multiplicand. The Tribunal awarded 40% for future prospects

of the victim considering the judgment of the Hon'ble

Supreme Court in National Insurance Company Limited Vs.

Pranay Sethi and Others, reported in (2017) 16 SCC 680. The

Tribunal accepted the age of the deceased based on entry in

voter ID Card issued by the Election Commission of India

wherein age of the deceased was entered as 21 years on

1.1.2003 as such the Tribunal held that the deceased was

aged about 32 years at the time of death and as such

multiplier of 16 is applicable in view of the judgment of the

Supreme Court in Sarla Verma & Ors vs Delhi Transport

Corp.& Anr reported in (2009) 6 SCC 121, affirmed in

Pranay Sethi's case. The Tribunal allowed 1/4th deduction

for personal expenses of the deceased considering the

number of dependents on him. Besides the aforesaid the

Tribunal deduced 30% for contributory negligence of the

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deceased. Rs. 70,000/- was allowed under conventional head

for funeral expenses and loss of consortium.

5. Ms. Barkha Jain appearing for Mr. Rohit Khandelwal,

learned counsel for the appellants contends that the Tribunal

was wrong in not accepting the evidence on record regarding

the income of the deceased and on surmises and conjectures

accepted income of a daily wager as Rs. 4,500/- per month in

respect of the deceased. Since there was lack of direct

evidence of date of birth of the deceased, the Tribunal should

have accepted the statements of claimants. Deduction of

1/4th is not justified. Moreover, this was not a case of

contributory negligence as no prudent man is expected to

foresee parking of any vehicle on the mid of the road without

any indicator or light or any other sign of easy identification.

Normally in the night on a smooth road, the people drives to

the best of their speed. Reliance has been placed on two

judges bench judgment of the Hon'ble Supreme Court in

Jumani Begum Vs. Ram Narayan & Ors. reported in 2020

(5) SCC 807.

6. To the contrary, learned counsel appearing for the

Insurance Company Mr. N.L. Verma contends that in the case

of Raj Rani & Ors. vs. Oriental Insurance Co. Ltd. and

Ors. reported in 2009 (4)TAC 385 (SC), the Hon'ble Supreme

Court in similar circumstances accepted a case of 50%

negligence of the deceased whose vehicle has dashed from

(5 of 7) [CMA-2778/2019]

behind on a vehicle parked on the mid of the road. Since the

documentary evidence available on record and produced by

the claimants reveal that the deceased was aged about 32

years on the date of accident, appropriate multiplier was of

16 which has been applied by the Tribunal. Since there was

no evidence of income of the deceased, the tribunal was

wholly justified in accepting minimum wages income of the

deceased.

7. Uncontroverted evidence on record is that the deceased

was earning Rs.10,000/- per month from agriculture as well

as dairy business. The claim of the income of Rs. 10,000/- is

not exorbitant and unreasonable one, therefore, the Tribunal

ought not have discarded the evidence on the income of the

deceased. Moreover, documentary evidence of agriculture

income or income from dairy business may not be available

with everyone unless the income is taxable income.

8. The issue of contributory negligence depends upon the

facts of individual case. In Jumani Begum (supra), the

deceased was riding on a motor cycle collided against truck

trolley parked on the road at night without any reflectors.

The Hon'ble Supreme Court held that there was no reason for

the Motor Accident Claims Tribunal to proceed on the basis of

conjectures in arriving at finding of contributory negligence.

The eye witness does not say that the deceased was

negligent to any extent. In normal circumstances, no one is

(6 of 7) [CMA-2778/2019]

expected to park its vehicle on the mid of the road and if due

to mechanical failure, the vehicle could not be removed

immediately from the mid of the road, it is expected from the

drivers to put reflector/indicator to guide other moving

vehicles. Therefore, I am persuaded to accept the view

expressed in Jumani Begum's case and set aside the finding

of the learned Tribunal that there was 30% negligence of the

deceased in the accident.

9. Since appropriate multiplier has been adopted by the

Tribunal and 40% has been added in the multiplicand for

future prospects in view of the judgment of the Hon'ble

Supreme Court in Pranay Sethi (supra), the same does not

require any interference. The Tribunal erred in not allowing

Rs.40,000/- for each of the claimants for loss of consortium.

In Magma General Insurance Co. Ltd. Vs. Nanu Ram and

Ors. reported in (2018) 18 SCC 130 , the Hon'ble Supreme

Court held that loss of consortium includes espousal

consortium, filial consortium and parental consortium. The

view was followed in New India Assurance Co. Vs.

Somwati reported in (2020) 9 SCC 644.

10. For the aforesaid reasons, the just compensation to be

awarded to the dependents of the motor accident victim in

the present case would be Rs.10,000+4,000(40% for future

prospects). Out of 14,000/-, 1/4th is deductible for personal

expenses of the deceased, the remaining amount of

(7 of 7) [CMA-2778/2019]

Rs.10,500/- has to be multiplied with 12 to get yearly loss

and further by multiplier of 16 taking into consideration the

age of the deceased. Thus, the compensation is calculated at

Rs.20,16,000/-. Besides, the aforesaid all the 5 claimants

are entitled for Rs. 40,000/- each total Rs. Two lacs for loss

of consortium and Rs.15,000/- for funeral expenses. Thus,

the total payable compensation would be Rs.22,31,000/-

along with interest awarded by the Tribunal, as this Court is

not inclined to interfere with the quantum of interest.

11. The respondent-Insurance Company is directed to pay

this amount minus already paid amount within a period of

two months, failing which 12% interest would be payable till

the date of final payment.

12. The award of the Tribunal is partially modified and this

appeal is allowed to that extent.

(BIRENDRA KUMAR),J

BRIJ MOHAN GANDHI/ 9

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