High Court · 2012

Short facts of the case are that appellants filed claim petition before the learned tribunal alleging that Harish aged 30 years was going on a motor bike on 21/1/2008. It was alleged that at the relevant time, a truck bearing registration No.MP/41-G-0419 which was being driven by respondent No.1 rashly and negligently owned by respondent No.2 and insured with respondent No.3 dashed the motor bike of Harish with the result Harish passed away. It was alleged in the claim petition filed by the appellants that deceased Harish was in the army and was getting Rs.8,492.00 per month. It was prayed that claim petition be allowed and adequate compensation be awarded. Claim petition was contested by respondent No.3 on various grounds including on the ground that the accident occurred because of rash and negligent driving of the deceased himself therefore, Insurance Company is not liable for compensation. It was prayed that claim petition be dismissed. After framing of issues and recording of evidence, claim petition was allowed and learned tribunal assessed the compensation and deducted 50% on the ground of contributory negligence. The amount of compensation assessed by the learned tribunal is as under:- Rs.5,57,056.00 Rs. 10,000.00 Rs. 10,000.00 ------------------- Rs.5,77,056.00 towards loss of dependency. towards consortium. towards loss of funeral expenses Learned counsel for the appellants argued at length and submits that award passed by the learned tribunal is incorrect, illegal and deserves to be quashed. It is submitted that the learned tribunal assessed the income of the deceased @ Rs. 8,492.00 per month out of which Rs.300.00 was deducted on account of income tax, professional tax, etc. and after deducing 1/3 towards personal expenses applied the multiplier of 17. Learned counsel submits that learned tribunal committed error in deducting 50% amount on account of contributory negligence. It is submitted that the accident took place from the back side of the motor bike therefore, there was no justification to hold that deceased was equally responsible for the accident. It is submitted that since the deceased was in army therefore, future prospects ought to have been taken into consideration by the learned tribunal. For this contention reliance is placed on a decision in the matter of Sarla Verma v/s Delhi Transport Corporation reported in 2009 ACJ 1298. wherein Hon'ble Apex Court held that future increase in income of the deceased remains to be taken into consideration, while assessing dependency of the claimants..It is submitted that appeal be allowed and the amount of compensation be enhanced and the findings of the learned tribunal regarding contributory negligence be set aside.

5. Shri C.P.Singh Learned counsel for respondent No.3 submits that since it was case of head on collusion therefore, learned tribunal has rightly deducted 50% amount on account of contributory negligence. Learned counsel submits that the amount awarded by the learned tribunal is just and proper and the findings regarding contributory negligence are based on due appreciation of evidence. It is submitted that appeal has no merit and the same be dismissed.

6. From perusal of the record it is evident that criminal case was registered against respondent No.1 but remained ex parte throughout and did not turn up into witness box. No effort was made by respondent No.3 to examine respondent No.1 to explain as to how and in what circumstances the accident took place. Apart from this, the accident got investigated by respondent No.3 through the investigator who has submitted the report and also entered into witness box but he has no where stated that the accident occurred because of rash and negligent driving of respondent No.1. It is surprising that the accident occurred by the offending truck from back side while witness Shankar in his affidavit submitted that the accident took place from the front side of the offending truck. In view of statement of Shankar it can safely be stated that it was head on collusion Since the material witness respondent No.1 was not examined and the Investigator has not stated anything about the negligence on the part of the deceased, this Court is of the view that learned tribunal was not justified in holding that the deceased was equally responsible for accident. In view of this, the findings of the learned tribunal regarding contributory negligence is quashed. So far as future prospects are concerned, no case is made out by the appellants as nothing has been pleaded in this regard and the academic qualification of the deceased is not on record. Ex. P/5 shows that the deceased was working as Fatigue man in Tennis Court in the infantry school at Mhow. This certificate can not be used as proof as per provisions of Indian Evidence Act. It is true that provisions of the Evidence are not strictly applicable in claim cases but at the same time if appellants want claim future prospects, appellants required to prove that the school was a government school. In absence of that the appellant cannot be considered for future prospects.

7. In view of this appeal filed by the appellants is allowed and the finding recorded by the learned tribunal whereby the deceased was held equally responsible for the accident, stands set aside. The appellants shall be further entitled for a sum of Rs.5,77.056.00 This amount shall carry interest as directed by the learned tribunal.. The amount awarded shall be deposited by the Insurance Company with the learned tribunal and the learned tribunal is directed to invest 80% of the said amount on a long term fixed deposit in the name of appellant No.1 in the nearest Nationalized Bank, in the area where the appellant No.1 is residing, with the condition that the bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant No.1, which shall be opened by the appellant No1 from where appellant No.1 can withdraw the amount as per her needs. However, on an application by the appellant No.1 this condition could be modified by the learned tribunal in exceptional circumstances, if made out by the appellant No.1.

8. This order shall be executable upon payment of proportionate Court fees on the enhanced amount. The Court fees be paid within 3 months from the date of this order. Registry to prepare memo of costs. The appellant counsel shall provide certified copy of memo of costs to the counsel for Insurance Company. The Insurance Company thereafter shall deposit the enhanced amount with costs with the Tribunal within one month from the date of receipt of memo of Cost. Failure to comply with the aforesaid direction no interest would be payable on the enhanced amount from the date of judgment till the Court fees is actually paid and memo of costs is supplied to counsel for Insurance Company.

9. With the aforesaid modification the appeal stands disposed of. mohorir/- (N.K. MODY) Judge