Rajasthan State Road Transport ... vs Charu Nahta
2022 Latest Caselaw 8080 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 26/2022

1. Rajasthan State Road Transport Corp., Through Manager, Nagaur

2. Rajasthan State Road Transport Corporation, Parivahan Marg, Jaipur Through General Manager

----Appellants Versus

1. Charu Nahta W/o Rajesh Nahta, 137-A, Sadulganj, Bikaner

2. Manan Nahta S/o Rajesh Nahta, 137-A, Sadulganj, Bikaner

3. Arushi Nahta D/o Rajesh Nahta, 137-A, Sadulganj, Bikaner

4. Sampat Devi W/o Jaychand, 137-A, Sadulganj, Bikaner

5. Ramniwas S/o Bhagirath Singh Jat, Village Ramu Ka Bass, Post Gokulpur, Tehsil And District Sikar

6. Puran Singh S/o Bhanwar Singh Rajput, Rajputo Ka Bas Village Buchkala Pipar City District Jodhpur

7. Sangram Singh S/o Khuman Singh Rajput, 171 New B.j.s.

Colony Jodhpur

8. New India Assurance Company Limited, Divisional Office First, Abhay Chambers, Jalori Gate, Jodhpur

9. Khushaboo Tours, 171 New B.j.s. Colony Jodhpur

10. Director, Doordarshan Uchchc Shakti Preshit Kendra Paota C Road, Jodhpur

11. Union Of India, Secretary Information Broadcasting Ministry New Delhi

----Respondents Connected With S.B. Civil Misc. Appeal No. 8/2022 The New India Assurance Co. Ltd, Abhay Chamber Jalori Gate, Jodhpur

----Appellant Versus

1. Charu Nahata W/o Rajesh Nahata, Aged About 43 Years,

(2 of 13) [CMA-26/2022]

137-A Sardulganj, Bikaner

2. Manan Nahata S/o Rajesh Nahata, 137-A Sardulganj, Bikaner

3. Aarushi Nahata D/o Rajesh Nahata, 137-A Sardulganj, Bikaner

4. Sampat Devi W/o Jay Chand, 137-A Sardulganj, Bikaner

5. Ramniwas S/o Bhagirath Sngh, Village Ramu Ka Bas Post Gokulpura Tehsil And District Sikar

6. Rajasthan State Road Transport Corporation Nagaur, Through Manager

7. Rajasthan State Road Transport Corporation, Parivhan Marg, Jaipur Through General Manager

8. Puran Singh S/o Bhanwar Singh, Rajputo Ka Bas Village Buchakala Piparcity District Jodhpur

9. Sangram Singh S/o Khuman Singh, 171, New B.j.s.

Colony Jodhpur

10. Khusabu Tours, 171, New B.j.s. Colony Jodhpur

11. Director Door Darshan, High Power Prashit Kendra Paota C Road Jodhpur

12. Govenment Of India, Secretary, Information And Broadcasting Ministry New Delhi

----Respondents S.B. Civil Misc. Appeal No. 221/2022

1. Charu Nahta W/o Rajesh Nahta, Aged About 43 Years, 137-A, Sadulganj, Bikaner

2. Manan Nahta S/o Rajesh Nahta, Aged About 19 Years, 137-A, Sadulganj, Bikaner

3. Arushi Nahta D/o Rajesh Nahta, Aged About 16 Years, 137-A, Sadulganj, Bikaner

4. Sampat Devi W/o Jaychand, Aged About 83 Years, 137-A, Sadulganj, Bikaner

----Appellants Versus

1. Ramniwas S/o Bhagirath Singh, Village Ramu Ka Bas, Post Gokulpur, Tehsil And District Sikar

2. Rajasthan State Road Transportation Corporation, District Nagaur Through General Manager

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3. Rajasthan State Road Transportation Corporation, Parivahan Marg, Jaipur Through Its Managing Director

4. Puran Singh S/o Bhanwar Singh, Rajpuro Ka Bas, Village Buchkala, Pipar City, District Jodhpur

5. Sangram Singh S/o Khuman Singh, 171, New B.j.s.

Colony, Jodhpur

6. New India Assurance Company Limited, Divisional Office First, Abhay Chambers, Jalori Gate, Jodhpur

7. Khsubu Tours, 171, New B.j.s. Colony, Jodhpur

8. Director, Doordarshan High Power Broadcasting Center, Paota C-Road, Jodhpur

9. Government Of India, Secretary, Information And Broadcasting Ministry, New Delhi

----Respondents

For Appellant(s) : Mr. Loonkaran Purohit for RSRTC For Respondent(s) : Mr. Hemant Balani for Insurance Company Mr. Rajesh Joshi Sr. Advocate assisted by Ms. Kamini Joshi for claimants

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Judgment

27.05.2022

Since the instant three appeals arise out of the same

impunged judgment dated 15.9.2021 passed by Motor Accident

Claims Tribunal, Jodhpur (herein-afterwards referred to as

'Tribunal') in MAC Case No. 55/2021 titled as (Smt. Charu Nahta &

Ors. vs. Ramniwas & Ors.), they are being disposed of by this

common judgment.

The brief facts of the case are as under:

In a road accident occurred on 22.4.2016 between Maruti

Swift Dzire Car bearing Registration No. RJ 19 TA 6558 and

Rajasthan Roadways Bus bearing registration No. RJ 21 PA 0593.

(4 of 13) [CMA-26/2022]

Rajesh Nahta, who was travelling in the car died on account of

injuries sustained by him in the accident. Claimants who are wife,

son, daughter and mother of the deceased filed a claim petition

before the learned Tribunal.

After inquiry, the learned Tribunal while allowing the claim

petition awarded Rs.1,20,18,945/- as compensation holding that

both drivers are equally responsible for the accident and non-

claimants nos. 1 to 6 i.e. drivers, owner and Insurance Company

of car were made liable to pay the amount of compensation.

Learned Tribunal assessed the loss of income on the basis of

income of deceased as mentioned in Certificate (Exhibit-24) and

while calculating the monthly salary, house rent allowance and

travel allowance were not taken into consideration by the learned

Tribunal. Learned Tribunal considering the age of the deceased at

the time of accident to be 50 years and 2 months, applied the

multiplier of 11 prescribed for the age group of 50-55. The

deceased was in permanent job, therefore, future prospects was

added to the income @ 15%, prescribed for persons of the age

more than 50 years. Consortium @ Rs. 40,000/- was awarded to

each claimants. However, learned Tribunal did not take into

account the adult son of the deceased while determining the

percentage for deducting amount towards personal and living

expenses of the deceased. Learned Tribunal awarded interest @

9% on the amount of compensation from the filing of claim

petition till realisation subject to the provisions of Income Tax Act.

Being dissatisfied with the impugned judgment, Rajasthan

State Road Transport Corporation (herein-afterwards referred to

as 'RSRTC') filed S.B. Civil Misc. Appeal No. 26/2022 on the

grounds: That the learned Tribunal erred in recording the finding

(5 of 13) [CMA-26/2022]

that driver of the RSRTC Bus was also rash and negligent in

driving the Bus; Even if it is presumed that driver of the RSRTC

Bus was negligent to some extent then also

composite/contributory negligence of the Car driver was fastened

much more than the negligence on the part of the Bus driver; and

That the compensation awarded by the learned Tribunal is

excessive.

The New India Assurance Company Ltd. (herein-afterwards

referred to as 'Insurance Company'), the insurer of the Car also

filed appeal being S.B. Civil Misc. Appeal No. 8/2022 challenging

the impugned judgment and award on the grounds: That the

accident was not the result of any negligence on the part of the

Car driver, hence, the learned Tribunal was not right in fixing the

liability on Car driver; that the claimants have concocted the facts

and circumstances of the accident; that the deceased was not

third party for the appellant; that the impugned judgment and

award passed by the learned Tribunal in awarding Rs.40,000/- to

each claimants for loss of consortium is contrary to the settled

principles of law; and that the interest awarded by the learned

Tribunal is also contrary to the settled principles of law and the

same is required to be modified.

On the other hand, the claimants prayed to enhance the

compensation amount on the grounds being dealt with at

appropriate stage.

Heard the learned counsel for the parties and perused the

material available on record.

Regarding rash and negligent driving by driver of the

Roadways Bus Ramniwas has been examined as D.W.1, whereas,

car driver has not been produced in evidence. One eyewitness

(6 of 13) [CMA-26/2022]

Laxman Ram (A.W.2) has been produced by claimants. Site plan

(Exhibit-5) and other police documents have also been exhibited

during the statement of the claimants. As per site plan, car was

coming from Jodhpur, whereas, bus was coming from the opposite

side i.e. Nagaur. From perusal of the site memo, it reveals that at

the time of accident, road construction work was going on and the

accident took place on the diverted way. As per site memo, width

of the diverted way was about 24 feet and the place of accident

was marked as 'X' in the site memo (Exhibit-5).

Ramniwas (D.W.1) bus driver in his statement stated that on

22.4.2016 at about 1:30 - 2:00 PM, Maruti Car after overtaking

the truck, came suddenly in front of the bus from opposite side,

then he off road the bus and left side of the car was collided with

the bus. It is to be noted that bus driver also reported the matter

to the police by submitting report (Exhibit-4). As per the said

report, car came in wrong side and collided with the bus from left

side.

As per the statement of eyewitness Laxman Ram bus was

coming from Nagaur side, which was being driven in high speed

with negligence. At the same time, one Maruti Swift Car came

from Jodhpur side, which was also being driven in high speed with

negligence. Both the vehicles collided on middle of the road.

Accident was the result of negligence on the part of both the

drivers. In cross-examination, he stated that no truck was running

ahead of the car.

After analyzing the above evidence and police documents,

the statement of the bus driver to the effect that a truck was

running ahead of the car and after overtaking the truck, car

suddenly came in front of the bus, cannot be accepted; this fact

(7 of 13) [CMA-26/2022]

has not been mentioned in the report filed by the bus driver. In

the police documents also, there is no mention regarding

overtaking of the truck. The eyewitness Laxman Ram (A.W.2) in

his cross-examination also denied that any truck was going ahead

of the car.

In view of above factual position, this Court is of the opinion

that the accident was the result of negligence on the part of both

the drivers. It is true that the place of accident was in the middle

of the road and bus driver was not in the wrong side. The contents

of site memo suggests that the car driver tried to avoid the

accident by going in the wrong side resulting in left side of the car

was collided with the front left side of the bus. Seizure memo of

vehicle and mechanical report (Exhibit-12) of the car also

corroborates this fact, according to which front and left side of the

car was found damaged and left side of the bus was also found

damaged.

Above evidence speaks about grave negligence on the part of

the car driver. The circumstances are suggestive of the fact that

on account of high speed, car driver could not control his vehicle,

so he turned his car towards extreme wrong side on account of

which left portion of the car was collided and damaged. The

deceased was sitting in the back seat of the car. Car driver did not

sustain any injury; since right side of the car was escaped from

colliding with the bus. Bus was not in the wrong side. It was in the

middle of the road.

Bus driver was also required to drive bus with more caution

and in controlled speed. Bus driver was also responsible to some

extent for the accident. Though, this accident is result of

(8 of 13) [CMA-26/2022]

contributory negligence on part of both the drivers. However,

equal responsibility to both the drivers cannot be assigned.

Considering overall facts and circumstances of the case

minutely under which accident took place, the contributory

negligence of bus driver is fastened to the extent of 25% only. The

main negligence was on the part of the car driver. Hence, the

liability of the car driver is increased from 50% to 75%.

Regarding quantum of compensation, learned counsel for the

claimants submits that the learned Tribunal erred in not including

major son of the deceased for the purpose of deducting the money

towards personal and living expenses of the deceased. Learned

counsel has relied upon the judgment of the Hon'ble Supreme

Court in the case of National Insurance Co. Ltd. vs. Birender

& Ors : (2020) 11 SCC 356.

Deceased had left behind his wife, son, daughter and mother.

As per principles laid down by the Hon'ble Apex Court in the case

of National Insurance Company Limited V/s Pranay Sethi &

ors. reported in 2017/ACJ/2700, 1/4 income should be

deducted towards personal expenses of the deceased in case of

number of dependents are between 4 to 6. There is no reason for

not including the non-earning son of deceased in the category of

dependents. This Court is in agreement with the contention of the

learned counsel for the claimants. At the time of accident, though

the son of deceased was major, however, he was a student and

was dependent on the earnings of his father. The view expressed

by the learned Tribunal that since the son was major he cannot be

considered as dependent of the deceased, is not in accordance

with law.

(9 of 13) [CMA-26/2022]

In the result, 1/3 amount deducted from the income of the

deceased towards his personal expenses is liable to be modified

from 1/3 to 1/4.

Regarding multiplier, learned counsel for the claimants while

relying on the judgment of Sarla Verma (Smt) & Ors vs. Delhi

Transport Corporation & Anr : (2009) 6 SCC 121, contends

that the deceased should be treated in the age group of 46 to 50

and multiplier of 13 should have been adopted instead of 11. In

this regard, learned counsel referred the judgment of Hon'ble

Apex Court in the case of M.H. Uma Maheshwari & Ors. vs.

United India Insurance Co. Ltd. : (2020) 6 SCC 400.

After perusing the above judgment, this Court is of the

opinion that in that case High Court adopted different yardsticks

regarding age group of the deceased for the purpose of applying

multiplier and percentage in granting future prospects. So Hon'ble

Supreme Court did not approve the approach of the High Court

and allowed the multiplier of 13.

After perusal of the judgment of the Hon'ble Apex Court in

the case of Sarla Verma (supra), it is evident that the main issue

was regarding applying relevant multiplier for the correspondent

age group and not the age group itself. Hon'ble Apex Court did not

discard the Second Schedule of the Motor Vehicles Act so far as it

relates to age group, which reads as follows:

          Age of Victim                                    Multiplier










                                             (10 of 13)           [CMA-26/2022]

This Court is of the opinion that for the purpose of

determining the age group classification as made in the Second

Schedule of the Motor Vehicles Act has not been disturbed by the

Hon'ble Apex Court. In the present case, since at the time of

accident, age of the deceased was 50 years and 2 months, the

multiplier of 11 applicable for the age group of persons above 50

years but not exceeding 55 years shall apply. Hence, learned

Tribunal did not commit any error in applying the multiplier of 11.

Accordingly, the contention of the learned counsel for the

claimants regarding multiplier is rejected.

So far as addition of percentage to income for the purpose of

loss of income in the head of future prospectus is concerned, as

per the judgment of Hon'ble Apex Court in the case of Pranay

Sethi (supra), 50% of actual salary to the income of deceased

towards future prospectus, where the deceased had permanent

job and was below the age of 40 years, should be made. The

addition should be 30% if the age of deceased was 40 to 50 years.

In case deceased was between 50 to 60 years, then addition

should be of 15%.

In view of the clear guidelines of the Hon'ble Supreme Court,

in the Case of Pranay Sethi (supra) learned Tribunal did not

commit any error in adding 15% to the income of the deceased

towards future prospectus. Since the deceased was aged 50 years

and 2 months at the time of accident, deceased cannot be treated

in the age group of 40 to 50 years.

(11 of 13) [CMA-26/2022]

Learned counsel for the claimants further contends that the

learned Tribunal erred in not including the house rent in the

income of the deceased. Learned counsel has relied upon the

judgment of the Hon'ble Supreme Court in the case of Manasvi

Jain vs. DTC Ltd. : (2014) 13 SCC 22.

After perusal of the judgment in the case of Manasvi Jain

(supra), this Court is of the view that the learned Tribunal erred in

not including the house rent in the income of the deceased for the

purpose of determining income of the deceased. Hon'ble Apex

Court also held that house rent is part of the income. Except

Income Tax voluntary contribution by the deceased for the welfare

of his family cannot be deducted from the monthly salary of the

deceased to compute his net salary or take home salary.

In the present case, learned Tribunal erred in not including

the house rent allowance in the income of the deceased. However,

it is made clear that travelling allowance is not part of the income.

It is also made clear that income tax at the rate applicable to the

income for financial year 2015-16 as per the provisions of Income

Tax should be deducted from salary for the purpose of assessing

the loss of income.

There is no other ground for enhancement of the quantum of

compensation awarded by the learned Tribunal.

Learned counsel for the Insurance Company contends that

the interest awarded @ 9% per annum on the compensation is

excessive.

This Court is in agreement with the contention of the learned

counsel for the Insurance Company. Looking to the present

interest rate at which nationalized banks make transactions, the

interest @ 9% awarded by the learned Tribunal is certainly

(12 of 13) [CMA-26/2022]

excessive and not in accordance with law. In the considered

opinion of this Court, interest @ 6% per annum is reasonable one.

After perusing the computation made by the learned

Tribunal, it reveals that for the purpose of assessing annual

income of the deceased, Tribunal relied only on the Last Pay

Certificate, which is only for 22 days. In the Last Pay Certificate no

separate details regarding DA and other allowances have been

made. The approach of the learned Tribunal to assess the income

of deceased on the basis Last Pay Certificate cannot be approved.

Learned Tribunal was required to assess annual income of the

deceased taking into consideration every component of the salary.

In the facts and circumstances of the case, it will be better to

remand the case to the learned Tribunal for fresh assessment of

the compensation in the light of the observations made by this

Court.

In the result, while partly allowing the appeal (S.B. CMA No.

221/2022) filed by the claimants, the matter is remanded back to

the Tribunal with the direction to re-assess the amount of

compensation in the light of observations made by this Court.

The appeal (S.B. CMA No.8/2022) filed by the Insurance

Company and appeal (S.B. CMA No. 26/2022) filed by the RSRTC

are partly allowed. The interest awarded by the Tribunal @ 9% per

annum is reduced to 6% per annum.

While maintaining the joint and several liability to pay the

amount of compensation awarded by the Tribunal, the extent of

liability of RSRTC is limited to 25% only, whereas, the liability of

the Insurance Company is increased from 50% to 75%.

After re-assessment, if the amount of compensation is

enhanced then, the enhanced amount shall also carry interest @

(13 of 13) [CMA-26/2022]

6% per annum from the date of filing claim petition till realization

of amount.

Re-assessment shall be made within one month from

receiving the certified copy of this judgment by the Tribunal. After

re-assessment, the Insurance Company and RSRTC will pay the

amount after adjusting previous payment, if any, within a period

of four weeks.

The learned Tribunal is also directed to send compliance

report to this Court.

(RAMESHWAR VYAS),J 4-Mak/-

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