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Lajwanti and anr. Vs. Keshav Prasad Soni and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMadhya Pradesh High Court
Decided On
Judge
Reported inII(1984)ACC281
AppellantLajwanti and anr.
RespondentKeshav Prasad Soni and ors.
Cases ReferredGammell v. Wilson and Ors.
Excerpt:
.....at every intersection or junction of roads, or at the turning of the road, and the driver of the vehicle should not enter the intersection or junction unless he makes side that he would not thereby endanger any other person. as such, we hold that the truck driver failed to observe the caution prescribed by regulation 6 and the accident took place solely due to his negligence. in the instant case, the respondents have utterly failed to discharge their burden......schedule of the act, which runs as under :7. the driver of a motor vehicle shall on entering a road intersection, if the road entered is a main road designated as such give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand.(italics are ours)it was not disputed that no material has been placed on record to show that the road on which the truck was plying was designated as 'main road'. it is, therefore, not possible to accept that the driver of the truck enjoyed a priority to cross the intersection, or that the accident took place on account of negligence of the driver of the tempo. even otherwise, regulation 7 does not give right to a person on the main road to run over everybody coming from.....
Judgment:

P.C. Pathak, J.

1. This appeal, under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') is by the claimants aggrieved by the quantum allowed to them, by an award dated 17-11-1977, passed in M.A.C.C. No. 32 of 1974, by the Court of Shri N.K. Singh, Motor Accident Claims Tribunal Jabalpur.

2. Facts, in brief, are that on 28-8-1974, at about 10-30 p.m., deceased Sardar Indrajeet Singh, aged about 23 years, while driving tempo MPJ 4495, met with an accident, on collision with Truck MPJ 1352, owned by respondent No. 1, Keshav Prasad and driven by Sk. Hafeez respondent No. 2 at the crossing point of the two roads in Napier Town, Jabalpur. The deceased succumbed to the injuries in the Victoria Hospital at about 3.40 a.m. on 29-8-1984. The two claimants No. 1 and 2, mother and father, aged 40 and 50 respectively, submitted that the deceased was earning Rs. 400/- p.m., and after spending Rs. 100/- p.m. on himself, used to contribute Rs. 300/- each month. They also submitted that the deceased would have lived upto the age of 90 years like his grand father. Even if, the normal age of the deceased was taken to be 73 years, the deceased would have lived at least for another 50 years. They claimed compensation of Rs. 1,80,000/-.

3. Respondent No. 1, owner of the truck and respondent No. 2, driver, even after service of summons, failed to appear before the Claims Tribunal. They were proceeded ex parte by order dated 5-4-1975. Respondent No. 3, Insurance Company, insurer of the truck, alone filed the written statement. The company submitted that the accident took place on account of the negligence of the tempo driver. It was pleaded that the truck was at the cross-road, almost midway, when the tempo driver, on account of his inability to control the speed, dashed against the truck while attempting to cross the road. The age and income of the deceased and the quantum of damages as claimed were also denied.

4. On an application made under Section 110-C(2A) of the Act, the Claims Tribunal, by its order dated 24-15-1975, allowed the Insurance Company to contest the claim on all grounds.

5. The Claims Tribunal held that the deceased, at the time of accident, was 23 years old and his monthly income was in the vicinity of Rs. 400/- and after spending Rs. 100/- on self, he used to contribute Rs. 300/- p.m. to the joint family of which he was also one of the members. However, the contribution at the rate of Rs. 300/- p.m. to the joint family could not have continued for long since the deceased would have got married after sometime .whereafter his contribution to the joint family could not be more than Rs. 100/- p m. In these circumstances, the Tribunal held the dependancy to be Rs. 12600/- per annum. The age of the claimants No. 1 and 2, namely, mother and father, was held to be 50 and 55 years respectively. Keeping in view the Iongvity of an average punjabi to be 70 years, the Tribunal estimated that the claimants would be deprived of the contribution for a period of 20 years. The annual dependancy being Rs. 1200/- and the life expectancy of the claimants to be at 20 years, the Claims Tribunal estimated the loss at Rs. 24,000/-. Deducting the sum of Rs. 12,000/- representing 50% contributory negligence at the tempo driver and another 20% from the remaining amount towards a lump sum payment and uncertainties of life, the Tribunal awarded Rs. 9.600/-to the claimants to be shared jointly and severally by all the three respondents. Interest at the rate of 4% from the date of award, i.e. 17-11-1977, till realisation together with costs was also awarded.

6. Respondents No. 1 and 2, namely, the owner and the driver respectively of the truck involved, though served, were not represented at the hearing. Counsel for the appellants/claimants and respondent No. 3 Insurance Company, were heard.

7. On behalf of the appellants, it was urged that the quantum awarded by the Tribunal is too low. The Tribunal having held that the deceased was contributing Rs. 300/- p.m., erred in reducing this amount to Rs. 100/- p.m., on the surmise that the deceased would have married after sometime. It was also urged that the findings of contributory negligence, and deduction of 50% on that count, and further deduction of 20% from the remaining amount as also the date and rate of interest allowed by the Tribunal are wrong. On behalf of the respondent Insurance Company, it was urged that the compensation awarded by the Tribunal did not call for any interference. The learned Counsel for the Insurance Company took us through the evidence on record and submitted that the finding that the deceased earned Rs. 400/- p.m., and contributed Rs. 300/- to the joint family was not warranted by the evidence on record. In the circumstances, the award was just and proper.

8. The first question to be decided is whether the accident took place on account of negligence of the truck driver or the tempo driver or both. The Tribunal found that the drivers of both the vehicles were equally negligent. In our opinion, this finding is not correct. Admittedly, the accident took place in the night at the intersection of two roads. Our attention was drawn to Regulation 7 of the Tenth Schedule of the Act, which runs as under :

7. The driver of a motor vehicle shall on entering a road intersection, if the road entered is a main road designated as such give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand.

(Italics are ours)

It was not disputed that no material has been placed on record to show that the road on which the truck was plying was designated as 'main road'. It is, therefore, not possible to accept that the driver of the truck enjoyed a priority to cross the intersection, or that the accident took place on account of negligence of the driver of the tempo. Even otherwise, Regulation 7 does not give right to a person on the main road to run over everybody coming from side lane. In our opinion, in the facts and circumstances of this case, instructions in Regulation No. 6 are attracted which run as under :

6. The driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a road corner, and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safety of persons thereon.

Regulation No. 6 clearly directs that the driver of every vehicle to slow down his vehicle at every intersection or junction of roads, or at the turning of the road, and the driver of the vehicle should not enter the intersection or junction unless he makes side that he would not thereby endanger any other person. The driver of the truck was not put in the witness-box. As such, we hold that the truck driver failed to observe the caution prescribed by Regulation 6 and the accident took place solely due to his negligence.

9. The claimants examined Karan Singh(PW3) who was seated in the tempo at the relevant time, as its conductor. He states that at 11.30 p.m., the tempo, driven by the deceased, was going towards the motor-stand. At 'Bhanwartal' intersection, the tempo collided with a truck coming in a great speed from the other road. As a result of the accident, he fainted and regained consciousness only in the hospital. Sumer Lal (P.W. 4), a watchman in nearby sales-tax office, reached the spot soon after hearing the sound of the accident. He saw the driver (deceased) of the tempo lying injured on the road, the truck standing at the other end of intersection facing towards Home Science College and the tempo with its back towards the intersection and the face towards the same road from which it had entered the intersection of the roads. Subhas Jaiswal (P.W. 2), a contractor, happened to reach the spot in his car. He saw that the deceased was lying in a pool of blood on the road. He also corroborates the earlier witnesses as regards the placement of the two vehicles after the accident. The Supreme Court in N.K.V. Bros. Pvt. Ltd. v. V. M. Kurmai Ammal : [1980]3SCR101 observed 'save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The claimants have also examined Dr. Ashok Kumar Jain (P.W. 6) and Dr. R. K. Dube (P.W. 7). The former was in-charge of casuality ward and had examined the deceased when he was brought to the Hospital and the latter conducted when he was brought to the Hospital and the latter conducted post-mortem. Both the doctors found extensive lacerated wounds over the anal region, sphincter and pelvic colon of the deceased. The wound on the anus extended deep into the rectum. It is also proved that on account of the impact, the tempo took a complete turn so as to face the same direction of the road from which it had entered the intersection. In view of the foregoing facts and circumstances, one cannot escape concluding that while the tempo had already entered and reached in the middle of the intersection, the truck must have entered the intersection later and dashed the front portion of the tempo so violently that the deceased was thrown on the ground and the tempo took a complete turn. The defence version does not fit in the probabilities of the case. It is, therefore, obvious that the driver of the truck even though had seen that the tempo already entered the intersection, continued to drive the truck in great speed. It was the duty of the truck driver to have slowed down his truck and avert the dash. Since the truck driver was not produced, an inference of negligence against the driver of the truck has been drawn. See : Liyakat Hussain v. M.P. State Road Transport Corporation 1976 ACJ 25 (M.P.), Suman v. General Manager, M.P, State Road Transport 1970 ACJ 280 (M.P.) and Jamnibai v. Chhotelal 1980 ACJ 90 (M.P.). The driver of the truck was required to exercise due care and was enjoined upon not to enter into the intersection until he had been able to take stock of the situation. See Maya Mukherjee v. Orissa Coop. Ins. Society : AIR1976Ori224 and M.P. State Road Transport Corporation v. Yasin 1974 ACJ 358 (M.P.).

10. As regards countributory negligence, the burden to prove such a defence is always on the non-applicants and is not on the claimants disprove it. See Master Arjun Fatehand Govindani v. Balshil Gulati 1979 ACJ 92 (Bom.). This can also be discharged by cross-examining the opponents' witnesses. In the instant case, the respondents have utterly failed to discharge their burden. The Insurance Company examined Virendra Singh (3 D.W.) to prove that even though the deceased was authorised by a licence (Ex. P.I) to drive 'light vehicle', permission was essential to drive a tempo when used to carry passengers on hire or recard. 'Light vehicle', as defined in the Act, means a transport vehicle, the registered laden weight of which does not exceed 4000 kgs. There cannot be any controversy that the tempo is a 'Transport vehicle'. Hence, it is held that the deceased held a licence to drive a tempo. Moreover, absence of driving licence does not prove negligence. The finding of the Tribunal that the tempo driver was guilty of contributory negligence, was reached mainly by relying upon Driving Regulations and assumption that the truck was on the main road, while the tempo was coming from the side Lane. The finding of the Tribunal that the tempo driver was guilty of contributory negligence cannot be sustained. We hold that the accident took place on account of sole negligence of the truck driver.

11. The next question is what should be the just and proper compensation. In computing a claim by parents of a person dying in the fatal accident usually the basis is the financial loss sustained by the parents and the life expectancy of the parents.

12. The counsel appearing for the parties took us through the evidence of the witnesses. Appellant no. 2 Ratan Singh (P.W1) (father of the deceased), stated that the deceased used to earn roughly Rs. 400/- p.m., and after retaining Rs. 100/- towards his expenses, used to contribute Rs. 300/- for domestic expenses. In cross-examination, he admitted that after meeting the expenses towards maintenance of the tempo and repayment of the bank loan, about Rs. 10/- was the saving per day of the deceased. Balbir Singh (P.W. 5) states that the deceased used to earn Rs. 10 to 20 and after retaining something for his own expenses, used to pay Rs. 10 or 12 to the parents. Keeping in view the possibility of exaggeration, we hold that the deceased must have been earning at least Rs. 250/- p.m. after retaining Rs. 100/- p.m., he must have been contributing Rs. 150/- p.m., to his parents. This brings annual dependency to Rs. 1,800/-. Having regard to the age of the parents, we would apply the multiplier of 15 to the annual loss of dependency of Rs. 1800/-. The compensation payable on accounts of loss of dependency comes to Rs. 27.000/-. Normally, we would have deducted 1/10 out of this amount on account of lump sum payment and uncertainties of the life, but we decline to do so on account of steep fall in money value. The claimants were also entitled to compensation for damage and repairs of the tempo which was not all claimed.

13. In Ramesh Chandra v. M.P.S.R.T.C. 1983 ACJ 221, a Division Bench of this Court held that in addition to damages for loss of dependency under Section 1A of the Fatal Accidents Act, mother is also entitled, as a legal representative of the deceased, to claim compensation under Section 2 of that Act for loss to the estate of the deceased replying upon Gobald Motor Service Ltd. v. Valuswami : [1962]1SCR929 , G.K. Subramania Iyer v. T.K. Nair 1970 ACJ 110 (S.C) and Shankar Rao v. Babulal Fouzdar : AIR1980MP154 . After examining several cases on the point, and the last being Gammell v. Wilson and Ors. 1982 ACJ 409 (.HL. England), this Court held that damages recoverable for loss to the estate of the deceased under Section 2 of the Fatal Accidents Act must include damages for loss of earning of the lost years', assessed in the manner laid down by the House of Lords in Gammell's case. We have already held that annual loss of earning to the estate works out to Rs. 1800/-. The deceased, but for his death in the accident, would have continued to earn at least upto the age of 60 years. The question then is what multiplier should be adopted in such cases. In Ramesh Chandra's case 1983 ACJ 221 (supra), the deceased was aged 19 years and the deceased would have continued to earn upto 58 years. The Court applied multiplier of 15. The amount of damages was worked out to Rs. 18000/-. The Court also awarded Rs. 2,000/- as damages for pain and sufferings and loss of expectation of life of the deceased. In the instant case, the claimants are parents. They as legal representative of the deceased, are entitled to claim compensation Under Section 2 of the Fatal Accidents Act for loss to the estate of the deceased. We are inclined to adopt 15 as multiplier. Multiplying this to the annual dependency of Rs. 1800/-, we reach to the figure of 27,000/-. We are also inclined to award Rs. 2000/- to the father and. Rs. 3000/- to the mother for pain and sufferings and loss of expectation on the life of the deceased. The total amount of damages payable Under Section 2 of the Fatal Accidents Act, thus, works out to Rs. 32,000/-.

14. We have arleady assessed the damages payable for loss of expectancy at Rs. 27,000/- and the damages recoverable for loss to the estate under Section 2 of the Fatal Accidents Act as Rs. 32,000/-. As the damages recover-able for loss to the estate under Section 2 for exceeds the damages assessed under Section 1A of the Act, we cannot award anything under Section 1A to avoid duplication. We must, therefore, award a total sum of Rs. 32,000/- compensation payable to the claimants. Out of this, a sum of Rs. 12,000/- in apportioned as payable to the father and Rs. 20,000/- to the mother The compensation awarded by this Court will carry interest at the rate of 6% per annum from the date of award of the Tribunal till the date of realisation.

15. In the result, the appeal of the claimants succeeds in part. Award passed by the Tribunal is modified to the extent indicated above. We direct that the compensation together with interest shall be paid by all the three respondents jointly and severally. Costs of this appeal shall be borne as incurred by the parties. Costs of the Tribunal shall be paid as ordered by that Court.


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