Rajasthan High Court - Jodhpur

Kailash Kunwar And Ors vs Nawal Singh And Ors on 10 September, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:36720]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                     S.B. Civil Misc. Appeal No. 746/2017

1.       Kailash Kunwar W/o Jabber Singh,
2.       Devi D/o Jabber Singh,
3.       Suman D/o Jabber Singh,
4.       Vishnu D/o Jabber Singh,
5.       Pratap Singh S/o Bahadur Singh,
6.       Smt. Paras Kunwar W/o Pratap Singh, All B/c Rajput,
         Residents        Of       Nimbadi,       Tehsil       Charbhuja,    District
         Rajasthan. Appellant No. 2-4 Minor Through Its Natural
         Guardian Mother Appellant No. 1
                                                                       ----Appellants
                                        Versus
1.       Nawal Singh S/o Lal Singh Rajput, Resident Of Banu, Post
         Shishavi, Tehsil Girwa, District Udaipur. - Driver
2.       Sumer Singh S/o Jawan Singh Rajput., R/o Upli Miyari,
         Post Bamen Tukda, District Rajasthan. - Owner
3.       National Insurance Company Limited, Branch Office,
         Udaipur Raj. - Insurer
                                                                     ----Respondents


For Appellant(s)               :    Mr. Nikhil Ajmera for Mr. Sandeep
                                    Saruparia
For Respondent(s)              :    Mr. Kuldeep Vaishnav



               HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

Reserved on: 03/09/2024 Pronounced on: 10/09/2024

1. The instant misc. appeal, seeking enhancement and setting

aside the finding with respect to contributory negligence, has been

preferred by the appellants/claimants under Section 173 of the

Motor Vehicles Act, 1988(hereinafter as 'the Act') against the

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judgment and award dated 05.12.2016 passed by MACT,

Rajsamand in MACT Case no. 65/2016.

2. Briefly stated, facts of the case are that on 19.10.2015 Mr.

Jabbar Singh(hereinafter as 'the deceased'), was going from

Gomti to Kelwa(i.e., N.H.-8, which is a four lane road) on the

motorcycle bearing registration no. RJ30 SH 9217(hereinafter

as)and as he reached(from North to South direction) near

Devpura Cut on N.H.-8, one Nawal Singh (hereinafter as

'Respondent No. 1/rider'), came, on the motorcycle bearing

registration no. RJ30 SL 0252(hereinafter as 'the offending

vehicle'), from the direction of intersection (which goes to village

Devpura), and while trying to cross the road(From East to West

direction) dashed into the deceased's motorcycle. As a result of

the accident the deceased died during the course of treatment. On

the written complaint of one Nirbhay Singh(a worker at Chouhan

Filling Station, Miyari) the FIR no. 174/2015 was registered at

Police Station, Kelwa and after investigation the chargesheet(Ex.-

5) was filed against the respondent no. 1/rider. Subsequently, the

claim petition no. 65/2016 was filed by the appellants/claimants

before MACT, Rajsamand(hereinafter as 'the tribunal') claiming

compensation from the respondents.

3. The notice of the claim petition were served on both the

respondent no. 1/rider and respondent no. 2/owner. However, as

they were no present before the learned tribunal even after the

service of the notices, ex-parte proceedings were initiated against

them.

[2024:RJ-JD:36720] (3 of 20) [CMA-746/2017]

4. It was alleged by the appellants/claimants before the learned

tribunal that the respondent no. 1/rider negligently and without

reasonable care suddenly came from the direction of Devpura

intersection on N.H.-8 in the middle of the road(Gomati to Kelwa

NH-8) without giving any signal or indicator and tried to cross the

road which resulted in the accident and ultimate demise of the

deceased.

5. It was alleged by the respondent no. 3/insurance company in

its reply to the claim petition before the learned tribunal that the

deceased was solely negligent for the accident hence, respondent

no. 3/insurance company is not liable.

6.On the basis of the pleadings of the parties the learned tribunal

framed 5 issues which are as follows:

Þ1- D;k fnukad 19-10-2015 dks jkf= 9-00 ih ,e ij LFkku us'kuy gkbZos 8 nsoiqjk iqfyl Fkkuk dsyok ij okgu eksVjlkbfdy la[;k vkj ts 30 ,l ,y 0252 ds pkyd foi{kh la[;k 1 }kjk fookfnr okgu dks cgSfl;r pkyd xQyr ,oa ykijokgh ls pykdj nq?kZVuk dkfjr dh x;h] ftlds ifj.kkeLo:i bl nq?kZVuk esa tCcjflag dh e`R;q gks xbZ\ 2- D;k mDr okgu dk pkyd cjoDr nq?kZVuk] fookfnr okgu dks okgu Lokeh foi{kh la[;k&2 dh tkudkjh@lgefr@fu;kstu@fgrkFkZ esa pyk jgk Fkk\ 3- D;k foi{kh chek dEiuh dh tokcnkos esa vafdr vkifRr;ka lkFkZd gSa\ ;fn gka] rks D;k mDr {kfriwfrZ jkf'k vnk djus ds fy, ftEesnkj ugha gSa\ 4- D;k izkFkhZx.k izfrdj jkf'k izkIr djus ds vf/kdkjh gSa\ ;fn gka rks fdl&fdl foi{kh ls fdruh&fdruh jkf'k\ 5- vuqrks"k D;k gksxk\Þ

7. The appellants/claimants examined Kailash Kunwar(wife of

the deceased) as AW-1 and exhibited 10 documentary evidences.

And from the side of the respondent no. 3/insurance company no

evidence was produced.

8. After hearing both the parties and on the basis of material

available on the record the learned tribunal partially decided issue

no. 1(i.e., with respect to the negligence of the Respondent

no.1/rider) in favour of the appellants/claimants and held the

[2024:RJ-JD:36720] (4 of 20) [CMA-746/2017]

deceased liable for contributory negligence to the extent of 25% in

causing the accident. And vide the impugned award ultimately

held the respondents jointly and severally liable to pay an amount

of Rs. 7,96,253/- (after deducting 25% of the total compensation

of 10,61,670/- on account of 25% contributory negligence of the

deceased) along with interest @ 9% p.a. from the date of filing of

the claim petition till the payment of the cheque to the appellants/

claimants.

9. Aggrieved by the impugned award the appellant/claimants

have preferred the instant misc. appeal.

10. It is submitted by the learned counsel appearing on behalf of

the Appellants/claimants that the learned tribunal erred in

deducting the 25% of the total compensation on the ground of

contributory negligence as the deceased was not negligent.

11. It is further submitted by the learned counsel appearing on

behalf of the Appellants/claimants that the respondent no. 1/rider

suddenly and negligently came in the middle of the road without

taking precaution and dashed into the motorcycle of the deceased.

12. It is further submitted by the learned counsel appearing on

behalf of the appellants/claimants that the burden of proving the

contributory negligence was on the respondent no. 3/insurance

company and they failed to discharge the same. For this

submission he places reliance upon the judgment of the Hon'ble

Supreme Court in Minu Rout v. Satya Pradyumna Mohapatra,

(2013) 10 SCC 695 and the judgment of the coordinate bench of

this court in Suresh Devi v. Pukhraj, 2023 SCC OnLine Raj 315. He

[2024:RJ-JD:36720] (5 of 20) [CMA-746/2017]

also submitted that the respondent no.1/rider did not even file

reply to the claim petition and neither he took part in the

proceedings before the learned tribunal. He also submits that the

respondent no. 3/insurance company did not produce any

evidence before the learned tribunal for proving contributory

negligence of the deceased. Thus, in absence of any proper and

sufficient rebuttal produced by the respondent no. 3/insurance

company, the learned tribunal erred in holding the deceased

contributory negligent.

13. It is further submitted by the learned counsel appearing on

behalf of the appellants/claimants that the learned tribunal erred

in deciding the contributory negligence of the deceased merely on

the basis of the Naksha Mauka(Ex.-6). For this submission he

relied upon the judgment of the Hon'ble Supreme Court in Jiju

Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166.

14. It is further submitted by the learned counsel appearing on

behalf of the appellants/claimants that the learned tribunal has

erred in not awarding any amount under the head of future

prospects and in awarding meager amount under the heads of

consortium, funeral expenses and loss of estate. He also

submitted that the learned tribunal has wrongly applied the

multiplier of 15 instead of 16 as the post-mortem report(Ex.-10)

clearly mentioned the age of the deceased as 35 years.

15. Per contra, it is submitted by the learned counsel appearing

on behalf of the respondent no.3/insurance company that the

deceased was negligent as he was riding the motorcycle on the

[2024:RJ-JD:36720] (6 of 20) [CMA-746/2017]

side of the divider and not on the left side of the road. He further

submitted that the deceased was negligent in riding the

motorcycle in high speed near the intersection and in not looking

for any possible vehicle that might cross the road. He further

submits that the deceased had last opportunity to avoid the

accident as per the doctrine of last opportunity, however, he failed

to do so and therefore, the learned tribunal has rightly held the

deceased liable for contributory negligence.

16. It is further submitted by the learned counsel appearing on

behalf of the respondent no. 3/insurance company that the

mechanical inspection report(Ex.-9) dated 25.10.2015 of the

motorcycle of the deceased as well as the offending vehicle

mentions that the front part of the motorcycle of the deceased

and the right side of the offending vehicle was damaged, which

shows that it was the deceased who hit the respondent no.1/rider

and not otherwise. Thus, the learned tribunal rightly held the

deceased contributory negligent.

17. Heard the parties and perused the material available on

record.

18. The issues that fall for consideration before this court are

firstly, Whether the learned tribunal was right in holding the

deceased liable for contributory negligence merely on the basis of

Naksha Mauka(Ex.-6) and in absence of any rebuttal evidence

from the respondent no. 3/insurance company? Secondly,

Whether the amount as awarded by the learned tribunal deserves

to be enhanced, if yes, to what extent?

[2024:RJ-JD:36720] (7 of 20) [CMA-746/2017]

19. Before adverting to adjudicate the instant appeal on merits

this court finds it pertinent to consider the position of law with

respect to the first issue.

20. This court finds that the Hon'ble Supreme Court in Usha

Rajkhowa v. Paramount Industries, (2009) 14 SCC 71 : (2009) 5

SCC (Civ) 307, has explained the doctrine of contributory

negligence and has also considered when a plaintiff can be held

liable for the contributory negligence and upon whom the burden

to prove the contributory negligence lies. The relevant paragraphs

of the judgment are as under:

"20. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak [(2002) 6 SCC 455 : 2002 SCC (Cri) 1355] . That was also a case of collision between a car and a truck. It was observed in SCC p. 458, para 8:

"8. ... The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression 'contributory negligence' it does not mean breach of any duty. It only 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'."

21. This Court further relied on an observation of the High Court of Australia in Astley v. Austrust Ltd. [(1999) 73 ALJR 403] to the following effect:

[2024:RJ-JD:36720] (8 of 20) [CMA-746/2017]

"A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property."

22. Keeping these principles in mind, we find that there was absolutely no evidence to suggest that there was any failure on the part of the car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by the insurance company as it was its burden and for that, the panchnama of the spot, showing tyre marks caused by brakes, and the panchnama of the damaged car and the truck could have been brought on record. The insurance company has obviously failed to discharge its burden. We, therefore, respectfully follow the above-

mentioned judgment."

[2024:RJ-JD:36720] (9 of 20) [CMA-746/2017]

Thus, the question of contributory negligence arises when there

has been some act or omission on the part of the

deceased/injured, which has materially contributed to the damage

caused, and is of such a nature that it may properly be described

as 'negligence'. And the expression 'contributory negligence' only

means the failure by a person to use reasonable care for the

safety of either himself or his property. And the burden to prove

the contributory negligence on the part of a claimant or deceased/

injured lies on the party who is alleging such negligence. However,

if such party fails to discharge this burden, the claimant or the

injured/deceased cannot be held liable for contributory negligence.

21. Further, the Hon'ble Supreme Court in Sunita v. Rajasthan

SRTC, (2020) 13 SCC 486, while dealing with issue of contributory

negligence held that in absence of any ocular evidence to prove

and explain the contents of site plan, a finding of negligence on

the part of claimant/deceased cannot be recorded.

"36. The site plan (Ext. 3) has been produced in evidence before the Tribunal by witness AD 1 (Appellant 1 herein) and the record seems to indicate that the accident occurred in the middle of the road. However, the exact location of the accident, as marked out in the site plan, has not been explained much less proved through a competent witness by the respondents to substantiate their defence. Besides, the police official concerned who prepared the site plan has also not been examined. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the appellants regarding negligence

[2024:RJ-JD:36720] (10 of 20) [CMA-746/2017]

attributable to deceased Sitaram, more so in absence of ocular evidence to prove and explain the contents of the site plan.

37. Be it noted that the evidence of witness AD 2 (Bhagchand) unequivocally states that Respondent 2 bus driver was negligent in driving recklessly at a high speed on the wrong side of the road, thus, resulting in the accident which caused the death of Sitaram. It was not open to the High Court to discard this evidence. Additionally, the Tribunal had justly placed reliance on the contents of FIR No. 247 of 2011 (Ext. 1) and charge-sheet (Ext. 2) which prima facie indicate the negligence of Respondent 2 in driving the bus. We once again remind ourselves of the dictum in Dulcina Fernandes [Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 : (2014) 1 SCC (Cri) 13] and thereafter in Mangla Ram [Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 :

(2018) 3 SCC (Civ) 335 : (2018) 2 SCC (Cri) 819] , and answer the factum of negligence of the driver of the offending vehicle against the respondents."

Thus, in absence of any ocular evidence or some witness to

explain the contents of the site plan and moreover, where the

chargsheet and other materials prima facie shows the negligence

of the offending vehicle, a finding of contributory negligence on

the part of claimant cannot be given merely on the basis of site

plan.

22. Further, the Hon'ble Supreme court in Saraladevi v. Royal

Sundaram Alliance Insurance Co. Ltd., (2014) 15 SCC 450, held

the finding of contributory negligence on part of the deceased as

[2024:RJ-JD:36720] (11 of 20) [CMA-746/2017]

erroneous as there was no evidence on record in this regard. The

relevant paragraphs of the judgment are as under:

"10. Aggrieved by the impugned judgment and final order dated 12-9-2012 passed by the High Court, the appellants filed this appeal before this Court urging various tenable grounds, namely, as to whether the High Court was justified in holding that there is a contributory negligence on the part of the deceased contrary to the evidence of the eyewitness; whether the High Court was justified in fixing the ratio of contributory negligence as 25% on the part of the deceased on the basis of an erroneous finding; whether the High Court was justified in reducing the amount awarded by the Tribunal from Rs 37,33,248 to Rs 15,84,750 and lastly, whether the High Court was justified in deducting ⅓rd amount towards personal expenses of the deceased contrary to the law laid down by this Court in various judgments?

11. In our considered view, the High Court has erred in not considering the principles laid down in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] insofar as deduction of ¼th of the monthly income of the deceased to arrive at the multiplicand and reducing the compensation by adopting the split up multiplier. Further, recording the finding of contributory negligence on the part of the deceased in the absence of evidence on record in this regard rendered the finding erroneous in law and error in law as the same is contrary to the decision of this Court in Jiju Kuruvila v. Kunjujamma Mohan [Jiju Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166 : (2013) 3 SCC (Cri) 849] . At the time of death, Vasanthan was 58 years old and was earning a salary of Rs 50,809 per month i.e. Rs 6,09,708 annually. By applying the appropriate

[2024:RJ-JD:36720] (12 of 20) [CMA-746/2017]

multiplier of 8 as laid down under Kerala SRTC v. Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335 : AIR 1994 SC 1631] , the loss of dependency comes to Rs 48,77,664."

23. The Hon'ble Supreme Court in Jiju Kuruvila v. Kunjujamma

Mohan, (2013) 9 SCC 166, held that merely on the basis of site

plan a finding with respect to negligence of a party cannot be

given in absence of any direct or corroborative evidence. The

relevant paragraphs of the said judgment are as under:

"11. The claimants have challenged the determination made by the High Court mainly on the following terms:

(i) The foreign exchange rate as was prevailing at the time of award i.e. May 1993, and shown in Ext. A-8, ought to have been taken into consideration for calculation of compensation.

(ii) In absence of any evidence relating to negligence on the part of the deceased and in view of the direct evidence on record, both the Tribunal and the High Court erred in holding that there was negligence on the part of the deceased.

XXX

20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the

[2024:RJ-JD:36720] (13 of 20) [CMA-746/2017]

accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.

XXX

20.6. The post-mortem report, Ext. A-5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext. A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext. B-2 "scene mahazar" and Ext. A-5 post- mortem report cannot take the place of evidence, particularly, when the direct evidence like PW 3 (independent eyewitness), Ext. A-1 (FIR), Ext. A-4 (charge-sheet) and Ext. B-1 (FI statement) are on record.

21. In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption and surmises."

24. Further, the Hon'ble Supreme Court in Municipal Corpn.,

Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731, while

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explaining the concept of 'negligence' and 'contributory

negligence' held that the 'doctrine of last opportunity' should not

to be applied. The relevant paragraphs of the said judgment is as

under:

"6. ............To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence. Whichever party could have avoided the consequence of the other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is

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not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn., para 328.) ..........

7. At this juncture, it is necessary to refer to the "doctrine of last opportunity". The said doctrine is said to have emanated from the principle enunciated in Davies v. Mann [(1842) 10 M&W 546 : 152 ER 588] which has often been explained as amounting to a rule that when both parties are careless the party which has the last opportunity of avoiding the results of the other's carelessness is alone liable. However, according to Lord Denning it is not a principle of law, but a test of causation. [See Davies v. Swan Motor Co. (Swansea) Ltd. [(1949) 2 KB 291] Though in some decisions, the doctrine has been applied by courts, after the decisions of the House of Lords in Volute [(1922) 1 AC 129] Admiralty Commrs. v. Volute (Owners)] and Swadling v. Cooper [1931 AC 1 : 1930 All ER Rep 257], it is no longer to be applied. The sample test is, what was the cause or what were the causes of the damage. The act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party which conjointly with the other party's negligence was the proximate cause of the accident, renders it one to be the result of contributory negligence."

25. In view of the aforesaid judgments, this court finds that the

position of law with respect to contributory negligence as it stands

is that firstly, the question of contributory negligence arises when

an act or omission on the part of the claimant/deceased has

materially contributed to the damage caused, secondly, the

burden to prove such act or omission on the part of the

claimant/deceased which resulted into the damage lies on the

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party who is taking the defence of contributory negligence, thirdly,

the 'doctrine of last opportunity is no longer to be applied while

deciding the issue of contributory negligence, lastly, in absence of

a direct or corroborative evidence a finding with respect to the

negligence of claimant/deceased cannot be recorded merely on

basis of the site plan, where the evidences like Chargsheet, FIR

etc. prima facie suggests that negligence of the party who is

taking the defence of contributory negligence.

26. Coming to the factual matrix of the case the burden to prove

contributory negligence on the part of the deceased was upon the

respondent no. 3/insurance company. However, it is clear from the

perusal of the material available on record that no evidence was

produced by respondent no.3/insurance company before the

learned tribunal as nothing has been placed on record to

substantiate their contention based on the Naksha Mauka(Ex.-6)

that the deceased was negligent. Thus, the contention of the

respondent no. 3/insurance company, while relying upon the site

plan, that respondent no. 1/rider crossed 80% of the road and

therefore, the deceased was negligent in riding the motorcycle on

the side of the divider and not looking for the persons crossing the

intersection does not have any force as there is no evidence

relating to negligence on the part of the deceased. The respondent

no.3/insurance company, if pleads contributory negligence on the

part of the deceased was then burdened to prove the same by

some piece of evidence but it has failed to discharge its burden.

27. Further, this court finds that the contention of the

respondent no. 3/insurance company, while relying on the

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mechanical inspection report(Ex.-9) that it was the deceased who

hit the respondent no.1/rider and not vice-versa as the front part

of the motorcycle of the deceased was damaged whereas the right

part of the offending vehicle was damaged, also does not have

any force as it is clear from the perusal of the mechanical

inspection report(Ex.-9) that the front as well as the left part of

the motorcycle of the deceased was damaged and thus, it cannot

be construed that it was the deceased who had hit the offending

vehicle. Also, in absence of any evidence with respect to the speed

of the motorcycle of the deceased it cannot be said that he was

riding the motorcycle at a very high speed. Also, the contention of

the respondent no.3/insurance company with respect to the

'doctrine of last opportunity' does not have any force as the

Hon'ble Supreme Court in the case of Municipal Corpn., Greater

Bombay v. Laxman Iyer, (2003) 8 SCC 731, held that the

'doctrine of last opportunity' should not be applied by the courts.

Thus, the respondent no. 3/insurance company have clearly failed

to discharge their burden of proving the negligence of the

deceased.

28. Thus, this court finds that the learned tribunal erred in

recording the finding of contributory negligence on the part of the

deceased merely on the basis of the site plan, the contents of

which were not even explained by any witness and nor any

evidence was produced by the respondent no.3/insurance

company in this regard, moreover, when the chargesheet(Ex.-5)

as well as the FIR 174/2016, which was lodged upon the written

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complaint dated 20.10.2015 by Nirbhay Singh, prima facie point

towards the negligence of the respondent no. 1/rider.

29. In view of the discussion in the above paragraphs, this court

finds that the tribunal was not right in holding the deceased liable

for contributory negligence merely on the basis of Naksha Mauka

and in absence of any rebuttal evidence from the respondent no.

3/insurance company hence, the first issue is answered in

negative.

30. Now coming to the second issue, this court, after perusal of

the material available on record, finds that the post-mortem

report(Ex.-10) mentions the age of the deceased as 35 years,

however, the learned tribunal applied the multiplier of 15 instead

of 16 by wrongly considering the age of the deceased between 36-

40 years without any reason. Further, the learned tribunal has

erred in not awarding any amount under the head of future

prospects merely on the ground that the same was not mentioned

in the claim petition and no evidence was produced to show future

increase in the income. Also, the learned tribunal erred in

awarding meager amount under the head of loss of

consortium(i.e., Rs. 25,000/- to each of the three children) and

loss of estate(i.e., Rs. 2000/-). Further, the learned tribunal

awarded Rs. 1,00,000/- to the wife of the deceased and

Rs.75,000/- to each of the parents under the head of loss of

consortium and Rs. 20,000/- for funeral expenses.

31. Thus, this court, in the light of the judgments of the Hon'ble

Supreme Court in National Insurance Co. Ltd vs Pranay Sethi

[2024:RJ-JD:36720] (19 of 20) [CMA-746/2017]

[2017 (16) SCC 680] and Sarla Verma & Ors vs Delhi Transport

Corp.& Anr[AIR 2009 SC 3104], finds that the compensation as

awarded by the learned tribunal deserves to be modified and

enhanced. Further, in light of the answer to the first issue in the

above paragraphs the deduction of 25% of the total

compensation(on account of contributory negligence of deceased)

deserves to be set aside. The amount of compensation that is to

be modified/enhanced is as follows:

S.No    Particulars                                  Amount      as     Amount     as
                                                     awarded     by     awarded/enha
                                                     the    learned     nced by this
                                                     tribunal           court


1.      (add)Compensation towards loss               Rs.7,61,670 /- Rs.12,45,888/-
        of dependency while adding 40%
        towards Future Prospects:
        5642(Minimum        wages    per
        month) + 2257 (40% future
        prospects)    -     1410    (1/4
        deduction on account of personal
        expenses) x 12 x 16(Multiplier)
        = Rs.12,45,888/-
2.      (add)Loss of Consortium 48,000               Rs. 2,75,000/- Rs.2,88,000/-
        x 6= Rs.2,88,000/-
3.      (add)Loss of Estate                          Rs.2000/-          Rs.18,000/-
4.      (add)Funeral Expenses                        Rs.20,000 /-       Rs.18,000/-
5.      (add)Transportation      charges             Rs.3000/-          Rs.3000/-
        incurred for taking body of
        deceased
6.      (deduct)Deduction on account of              Rs.2,65,417/-      Nil
        Contributory Negligence
                              Gross Total            Rs.7,96,253/-      Rs.15,72,888/-

                                               Enhanced amount
                                                                        Rs.7,76,635/-

(after deducting the amount already awarded by the learned tribunal)

[2024:RJ-JD:36720] (20 of 20) [CMA-746/2017]

32. Therefore, the instant misc. appeal stands partly allowed.

The finding with respect to the contributory negligence on the part

of the deceased is set aside. The appellants/claimants are thus

held entitled to get enhanced compensation of Rs.7,76,635/-

along with interest @ 9% p.a.(same as awarded by the learned

tribunal) on the enhanced compensation with effect from the date

of filing of the claim petition. The impugned award passed by the

learned tribunal stands modified accordingly. The respondents are

directed to pay the said amount along with the interest from the

date of filing of claim petition to the appellants within a period of