Suresh Devi And Ors vs Pukh Raj @ Pukh Ram And Ors
2023 Latest Caselaw 1911 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 2523/2007

1. Suresh Devi w/o Late Shri Devaram Age 28 years

2. Sunita D/o Devaram Age 10 years

3. Puja D/o Devaram Age 8 years

4. Manjudi D/o Devaram Age 6 years

5. Supriya S/o Devaram Age 4 years

6. Tarita D/o Devaram Age 1 year

7. Sohanidevi W/o Hapuram Age 50 years All r/o Dhoolkot, Teh. Raipur District Pali (Appellant No.2 to 6 are minor through mother appellant no.1)

8. Hapu Ram S/o Choga Ram Bawari Age 52 years, R/o Dhoolkot, Teh. Raipur, Dist. Pali.

----Appellants Versus

1. Pukhraj @ Pukharam S/o Paanchuram Gurjar r/o Dhoolkot Tehsil Raipur District Pali. (Driver)

2. Mangilal S/o Paanchuram Gurjar r/o Dhoolkot Post Hajiwas via Ber Tehsil Raipur District Pali. (Owner)

3. Oriental Insurance Company Limited through Divisional Manager, Mandia Road, Pali. (Insurer)

----Respondents

For Appellant(s) : Mr. Sandeep Saruparia For Respondent(s) : Mr. U.C.S. Singhvi

HON'BLE MS. JUSTICE REKHA BORANA

Judgment

21/02/2023

The present appeal has been filed against the award dated

06.09.2007 passed by the Motor Accident Claims Tribunal,

Jaitaran, District Pali (hereinafter referred to as 'the learned

Tribunal') whereby although an award of Rs.3,06,500/- has been

passed in favour of the claimants but holding the contributory

negligence of the deceased, 30% of the awarded amount has been

(2 of 10) [CMA-2523/2007]

directed to be deducted qua the contributory negligence.

Therefore, after deduction as aforementioned, a claim of

Rs.2,14,500/- has been awarded in favour of the claimants who

are the parents, wife and the five minor children of the deceased.

Learned counsel for the appellants submitted that the finding

of the learned Tribunal regarding the contributory negligence of

the deceased is totally contrary to the record and therefore, liable

to be set aside. He submitted that it was not even the case of the

respondent owner or the insurer of the vehicle that the

motorcyclist was negligent and the accident occurred due to his

contributory negligence. No evidence qua the said fact was led by

any of the respondents and therefore, the finding as arrived by

the learned Tribunal cannot be upheld. In support of his

contention, learned counsel relied upon the judgment passed by

Hon'ble Apex Court in the cases of Mangla Ram v. Oriental

Insurance Co. Ltd. and Ors.[2018 ACJ 1300] and The New

India Assurance Company Limited and Ors. Vs. Somwati

and Ors. [(2020) 9 SCC 644].

Learned counsel further submitted that the finding of the

learned Tribunal is based solely on the site plan which cannot be

treated to be a substantive piece of evidence. He submitted that

even if the same is taken into consideration, the conclusion as

arrived by the learned Tribunal proves to be totally contrary even

to the site plan. In support of his contention, learned counsel

relied upon the judgments passed by this Court in Sushila v.

Mohan Singh & Ors. [2015 (2) R.A.R. 564 (Raj.)] and United

India Insurance Company Ltd. v. Smt. Sugni Devi & Ors.

[2013 R.A.R. 21 (Raj.)].

(3 of 10) [CMA-2523/2007]

Learned counsel for the appellants further submitted that the

learned Tribunal has held the deceased to be guilty of contributory

negligence, also because of the fact that he did not have a valid

driving licence. He submitted that this cannot be a ground for

holding a driver to be negligent. In support of his contention,

learned counsel relied upon the judgment passed by this Court in

the case of Shanti Lal & Anr. v. Ramesh Chandra & Ors.

[2019 (4) DNJ (Raj.) 1597].

Arguing upon the quantum of compensation, learned counsel

submitted that the future prospects as well as the compensation

qua the loss of consortium have wrongly not been granted by the

learned Tribunal to the claimants. In support, he relied upon the

latest pronouncements of the Hon'ble Apex Court in National

Insurance Co. Ltd. v. Pranay Sethi [2017 ACJ 2700 (SC)]

and Rajwati @ Rajjo & Ors. v. United India Insurance

Company Ltd. & Ors. [2022 Supreme(SC) 1231].

Despite service, none has put in appearance on behalf of

respondent No.1 Driver as well as respondent No.2-Owner of the

Jeep involved in the accident.

Learned counsel for the respondent-Insurance company

submitted that the findings as arrived by the learned Tribunal are

totally in conformity with the site plan as well as the material

which was available on record. Learned counsel submitted that a

bare perusal of the site plan makes it clear that the deceased-

motorcyclist was equally responsible for the accident as he drove

in a negligent manner. Learned counsel submitted that the driver

of the vehicle in question i.e. Jeep was possessing a license to

drive light motor vehicle only and was not entitled to drive a

commercial vehicle. Therefore, there was a specific breach of

(4 of 10) [CMA-2523/2007]

condition of the insurance policy and the insurer was therefore,

not liable to pay the compensation. In support of his contention

learned counsel relied upon the Hon'ble Supreme Court judgment

passed in the case of National Insurance Company Vs. Kusum

Rai (AIR 2006 SC 3440). In support of his contention that

where a collision of two vehicles take place in the middle of the

road, both the drivers would be equally responsible, learned

counsel relied upon the judgments passed in the cases of

Oriental Insurance Co. Vs. Mohan Kanwar & Ors; S.B. Civil

Misc. Appeal Nos. 702 and 714 of 1998 of this Court decided

on 28.03.2006 and Shivaji Waman Eodase and Ors. Vs.

Chandrapati Ishwarsingh Dahiya and Ors. F.A. Nos. 246 to

251 of 1987 of the Bombay High Court decided on 20.04.2006.

So far as the reliance of the learned Tribunal upon the site

plan is concerned, learned counsel submitted that the same was

validly relied upon by the Tribunal as the site plan was a document

prepared by the police officer while discharging his official duty

and the same is admissible in evidence without there being a

formal proof. In support of his contention learned counsel relied

upon the judgment passed in the case of United India

Insurance Co. Vs. Hamu Ram & Ors.; 2004 RAR 308, decided

on (21.03.2003).

Heard learned counsel for the parties and perused the

material available on record.

The learned Tribunal has reached to a finding that the

accident between the two vehicles i.e. the motor cycle and the

jeep occurred in the center of the road and that too at a place

where there was a curve in the road. Because of the curve, the

vehicles were not visible to each other and therefore, they

(5 of 10) [CMA-2523/2007]

collided. Learned Tribunal has found that where the vehicles

collide head on, it cannot be because of negligence of any one of

the driver. Further, the deceased who was driving the motor cycle

did not even have a valid driving licence. It was therefore,

concluded that the accident occurred due to negligence of both the

vehicles and hence the contributory negligence of the deceased

was held to be proved on record. The said conclusion of the

learned Tribunal is based on the site report Exhibit-4.

In the opinion of this Court, the site report rather proves to

the contrary. According to the site report, the jeep was placed at

mark 'C' after hitting the motor cycle at mark 'A'. A bare perusal

makes it clear that mark 'C' is on the right side of the road and

admittedly, the jeep was supposed to be driven on the left side of

the road. Meaning thereby, the jeep which was supposed to be on

the left side, moved towards the right, hit the motor cycle towards

the center of the road and because of the high speed, after

hitting, reached to the extreme corner of the road towards right

and halted there. As per the site report, the motor cycle is shown

to be lying at mark 'B' which is also on the extreme right of the

road. The pieces of broken glass have also been shown to be

between mark 'A' to 'B'. The body of the deceased has been shown

to be placed at mark 'X' which is somewhere between mark 'A' to

'B'. The only conclusion which can be drawn from the site report is

that the jeep came to the wrong side and hit the motor cycle. The

motor cycle clearly was in the correct lane and on the correct side

and therefore, by any stretch of imagination, it cannot be

concluded that the motor cycle driver i.e. the deceased was also

negligent. The finding of the learned Tribunal is therefore, contrary

to the site report even on facts and therefore, cannot be affirmed.

(6 of 10) [CMA-2523/2007]

Further, as held in the cases of Sushila Vs. Mohan Singh; 2015

(2) RAR 564 (Raj.) and United India Insurance Vs. Sugni

Devi; 2013 RAR 21 (Raj.), in the matter of motor accident

claims, the site plan cannot be held to be substantive piece of

evidence for conclusion of contributory negligence.

Further, a perusal of the evidence as led by the parties

makes it clear that no evidence regarding any contributory

negligence of the deceased was led by the Insurance Company.

Even while cross-examining the claimant witnesses, no suggestion

whatsoever, to suggest that the deceased was also negligent has

been put to them by the Insurance Company. Just a cursory plea

in the reply regarding the negligence of the deceased has been

taken but no evidence to prove the said averment has been led by

the Insurance Company. Therefore, the finding of the learned

Tribunal cannot be affirmed even on the count that there was no

evidence available on record to suggest that the deceased was

also negligent.

In Mangla Ram Vs. Oriental Insurance Company; 2018

ACJ 1300, while dealing with a similar issue-whether the finding

qua the contributory negligence can be reached only on the basis

of the site map, the Hon'ble Apex Court specifically held as

under :

"23. Be that as it may, the next question is whether the Tribunal was justified in concluding that the Appellant was also negligent and had contributed equally, which finding rests only on the site map (Exh. 2) indicating the spot where the motorcycle was lying after the accident? We find substance in the criticism of the Appellant that the spot where the motor vehicle was found lying after the accident cannot be the basis to assume that it was driven in or around that spot at the relevant time. It can be safely inferred that after the accident of this nature in which the Appellant suffered severe injuries necessitating amputation of his right leg

(7 of 10) [CMA-2523/2007]

above the knee level, the motorcycle would be pushed forward after the collision and being hit by a high speeding jeep. Neither the Tribunal nor the High Court has found that the spot noted in the site map, one foot wrong side on the middle of the road was the spot where the accident actually occurred. However, the finding is that as per the site map, the motorcycle was found lying at that spot. That cannot be the basis to assume that the Appellant was driving the motorcycle on the wrong side of the road at the relevant time. Further, the Respondents did not produce any contra evidence to indicate that the motorcycle was being driven on the wrong side of the road at the time when the offending vehicle dashed it. In this view of the matter, the finding of the Tribunal that the Appellant contributed to the occurrence of the accident by driving the motorcycle on the wrong side of the road, is manifestly wrong and cannot be sustained. The High Court has not expressed any opinion on this issue, having already answered the issue about the non-involvement of the offending vehicle in favour of Respondent Nos. 2 & 3.

24. In other words, we are inclined to hold that there is no title of evidence about the motorcycle being driven negligently by the Appellant at the time of accident. The Respondents did not produce any such evidence. That fact, therefore, cannot be assumed. Resultantly, the argument of the Respondents that the Appellant did not possess a valid motorcycle driving licence at the time of accident, will be of no significance. Thus, we hold that there is no legal evidence to answer the issue of contributory negligence against the Appellant."

In view of above observations of the Hon'ble Apex Court

also, it can be safely concluded that the factum of contributory

negligence cannot be based solely on the site map in absence of

any evidence being led by the respondents and further that the

deceased was not having a valid driving licence at the time of

accident will be of no significance. The said principle has also been

reiterated in the case of Shanti Lal Vs. Ramesh Chandra; 2019

(4) DNJ (Raj.) 1597, wherein it has been held that merely

because the rider of the motor cycle was not having a valid driving

(8 of 10) [CMA-2523/2007]

licence, the same cannot be a ground to saddle any contributory

negligence or liability.

In the overall analysis of the facts of the present case and

the precedential law, this Court is of the specific opinion that the

finding of the learned Tribunal holding the deceased also to be

negligent for the accident and thereby deducting 30% of the

award amount qua contributory negligence cannot be affirmed and

the same is hereby set aside.

So far as the quantum of compensation is concerned, the

learned Tribunal has declined to grant any compensation qua

future prospects on the ground that the witness has made false

statements and no evidence qua future prospects has been led. In

the specific opinion of this court, the consideration of the income

qua future prospects is not on the basis of the evidence being led

qua the said issue but is an essential corollary while computing

the income of a deceased. The compensation qua future prospects

is a natural consequence based on the rationale that a person who

is self-employed is bound to garner his resources and raise his

income for a better living. Further, computation of compensation

keeping into consideration, the future prospects is a mandate and

not a discretion. In National Insurance Co. Ltd. Vs. Pranay

Sethi; 2017 ACJ 2700 (SC), the Constitution Bench while

deciding on the issue of future prospects devised a fixed standard

for granting future prospects and held as under :

"Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40 per cent of the established income of the deceased towards future prospects where the deceased was below 40 years and an addition of 25 per cent where the

(9 of 10) [CMA-2523/2007]

deceased was between the age of 40 and 50 years would be reasonable."

In view of the ratio as laid down in Pranay Sethi's case,

denial of compensation qua future prospects by the learned

Tribunal is also held to be bad and the finding qua the said issue is

also set aside.

So far as the computation of the income is concerned, the

learned Tribunal has computed the same to be Rs.1,800/- per

month on the basis of the statements of PW2 Bhunda Ram who

has deposed that the deceased was earning Rs.50-60 per day as

he was a construction labour. The said finding of the learned

Tribunal cannot be interfered with being based on the evidence

available on record and the same is affirmed.

In view of above observations, the award requires

recomputation in light of judgments of the Hon'ble Apex Court in

the cases of Somwati and Pranay Sethi (supra).

For future prospects :

Income per month                            Rs.1800
Future prospects                            Rs.720
(40% of income)
Total                                       Rs.2520
Deduction                                   Rs.504
(more than 6 dependents)

Income per month                           Rs.2016
Income per annum                           Rs.24,192

The age of the deceased was 30 years, therefore, a multiplier of

17 will be applied.

                                                                                     (10 of 10)                  [CMA-2523/2007]


                                   (I) Compensation due to          24,192 X 17                            Rs.4,11,264/-
                                        death
                                        (Loss of dependency)
                                   (II) Loss of Estate                 15,000                              Rs.15,000/-
                                   (III)Loss of spousal consortium     40,000                              Rs.40,000/-
                                   (IV)Loss of parental consortium     40,000x5                            Rs.2,00,000/-
                                        to each of the 5 children
                                   (V)Loss of consortium to parents   40,000x2                             Rs.80,000/-
                                   (VI) Funeral Expenses               15,000                              Rs.15,000/-

                                   Total                                                                   Rs.7,61,264/-
                                   Amount awarded by learned
                                   Tribunal  vide award dated
                                   06.09.2007                                                              Rs.2,14,550/-

                                   Enhanced amount                                                         Rs.5,46,714/-

                                   Round off                                                               Rs.5,47,000/-

Accordingly, the appeal is partly allowed. In view of the

recomputation of the award done, the respondents are directed to

pay an enhanced amount of Rs.5,47,000/- to the appellants-

claimants in addition to award already awarded by the learned

Tribunal within a period of two months from today. The said

enhanced amount shall carry an interest @6% per annum from

the date of filing of the claim petition.

The appeal is disposed of in the above terms.

The stay petition also stands disposed of.

The record of the learned Tribunal be sent back forthwith.

(REKHA BORANA),J 70-Sachin/Abhishek/vij/-

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