H.S. Bedi, J.
1. This order will dispose of F.A.O. No. 852 of 2001 (Prem Kumari Rakheja and Ors. v. R.K. Dadeja and Ors.). F.A.O. No. 780 of 1985 (Haryana Motor Accident Claims Tribunal, Sirsa and Ors.) and F.A.O. No. 791 of 1985 (Dinesh Singh v. Prem Kumari Rakheja and Ors.).
2. These three appeals arise out of the award of the Motor Accident Claims Tribunal, Sirsa dated 11.3.1985, whereby a sum of Rs. 1,15,200/- has been awarded to the claimants by way of compensation on account of the death of Chiman Lal Rakheja, who at the relevant time, was working as a Sub Divisional Officer with the Haryana State Minor Irrigation Tubewell Corporation (hereinafter referred to as the 'Corporation').
3. The facts of the case are that on 12.2.1981 the deceased alongwith N.K. Jain, Sub-Divisional Officer was travelling from Sirsa to Fatehabad in a jeep bearing No. HRB-7754, belonging to the Corporation and being driven by Danesh Singh, driver. The jeep was also under the supervision and control of the senior officer, R.R. Dudeja, respondent No. 1. At about 8.00 P.M. while they were in the area of village Bahauddin, the jeep met with an accident with a camel cart which was going on the left side of the road and in the same direction as the jeep and as a result thereof, Chiman Lal Rakheja received serious injuries. He was removed to the Civil Hospital, Fatehabad for treatment and thereafter to the Medical College, Rohtak, where he died on 1.5.1981 due to the injuries sustained by him. A first information report had earlier been registered (on 13.2.1981) at Police Station Sadar Sirsa regarding this accident. A claim petition was thereafter filed by his widow Prem Kumari, his parents and minor children claiming compensation to the tune of Rs. four lacs. The claim was controverted by the respondents but for different reasons. It was pleaded by Danesh Singh driver that R.R. Dudeja and not he had in fact been driving the vehicle at the time of the accident. This version was supported by N.K.Jain. R.R.Dudeja, however, denied the fact that he had been driving the vehicle and pleaded that it was Danesh Singh, who was driving the jeep at the relevant time. It was, however, pleaded by both these respondents that the accident had not happened on account of the negligence on the part of the driver of the jeep but had happened as the camel cart, which had extended wooden structures on it had been coming on the wrong side of the road.
4. On the pleadings of the parties, the following issues were framed:-
1. Whether the petitioners are legal heirs of Sh. C.L.Rakheja since deceased as alleged? OPP.
2. Whether C.L.Rakheja died due to the rash and negligent driving of jeep No. HRB-7754 owned by respondent No. 2 on 12.2.81, at 8.00 P.M. in the revenue estate of village Bhadin, on Sirsa-Hissar road as alleged? OPP.
3. To what amount of compensation the petitioners are entitled and from which respondent? OPP.
4. Whether respondent No. 1 was not authorised to drive the jeep at the time of accident as alleged? OPR.
5. Relief.
5. The Tribunal concluded that both Danesh Singh and R.R.Dudeja were not telling the truth. It accordingly relied on the statement of C.L. Rakheja, which has been recorded and was the basis of the FIR, in which it had been stated that the jeep was being driven by Danesh Singh and that it had met with an accident on account of the fact that the camel cart was coming on the wrong side, i.e., from the opposite direction. The Tribunal also noted that the jeep was being driven in a rash and negligent manner by the driver. The Tribunal accordingly held that the aforesaid statement was to be treated as a dying declaration and relying on the aforesaid statement held that the case was of the contributory negligence on the part of the jeep driver as also the driver of the camel cart. It observed as under:-
'Now the next question which needs consideration is as to whether the accident took place due to sole negligence of car driver or it was a case of contributory negligence. Admittedly, the accident took place at about 8.00 P.M. in the night when it was dark all around. The evidence on record coupled with the statement of Danesh Singh respondent himself shows that a truck was coming from the opposite direction at that time, meaning thereby that the visibility in front of jeep of Danesh Singh must have been obscured due to the head-lights of the coming truck from the opposite direction. It is the duty of the driver while crossing any vehicle at night to slow down the speed of his vehicle and also to use dipper. There is no evidence on record that dipper of jeep or dipper of truck were used by their respective drivers, at the time of accident. The statement of Mr. N.K. Gupta, P.W. shows that when the truck, had crossed, it was only then he noticed the camel cart which was at a distance of 10/15 yards from the jeep and that Danesh Singh driver in order to avert the accident had swerved the jeep towards his right hand side but still extending portion of the wooden structure of the cart had struck left hand portion of the jeep, on which side Mr. C.L. Rakheja was sitting resulting in injuries to him. Statement of Mr. Danesh Singh respondent himself shows that front pane had broken and the front handle which is meant for holding by the occupants in the jeep, was touching the chest of Mr. Rakheja, meaning thereby that the front left portion of the jeep was bent inward, which could be possible only if there had been impact with force and that could be only if the jeep was coming at a fast speed. This shows that Danesh Singh driver did not slow down the jeep on seeing the coming truck from the opposite direction. Had he done so, he could avoid the accident. Under these circumstances, it was a case of contributory negligence of both Danesh Singh driver of the jeep and Ram Kumar P.W. camel cart driver to the extent of 50% each.'
6. The Tribunal accordingly apportioned the claim to the extent of 50% of each on Danesh Singh driver of the jeep as also the driver of the camel cart. The Tribunal then examined the question of the quantum of compensation and concluded that as the actual take home salary of the deceased was Rs. 1717/-, the amount that fell into the hands of the family was Rs. 1200/- and as he was 50 years of age at the time of his death, a suitable multiplier was 16, which would bring the compensation payable as Rs. 2,30,400/-and 50% of this amount was to be paid by each of the parties, i.e., the driver and owner of the jeep and other 50% by the camel cart driver.
7. Three appeals have been filed against the award, one by Danesh Singh driver, one by the claimants and the third by the Corporation.
8. Mr. Mahesh Grover, the learned counsel appearing for the claimants has argued that the present case was not a case of contributory negligence and the jeep driver was liable for the entire compensation. To my mind, this argument has no merit. As per the version given by the deceased in the first information report, the cart in question had been coming on the wrong side of the road, but the Tribunal had nevertheless held and to my mind rightly, that as it was dark at the time of the accident and as the visibility in front of the jeep must have been obscured due to head lights of the coming truck, the driver had to take extra care to save not only the camel cart as also the truck coming from the opposite side. In this view of the matter the finding of the Tribunal so far as the liability to pay the compensation is concerned, is absolutely justified.
9. Mr. Grover has then argued that the Tribunal ought to have taken into account the future prospects of the deceased as he was a Sub-Divisional Officer working with the Corporation and, therefore, had a bright future. He has also urged that the pay sales had been revised in the year 1989, which had increased the take home salary of the deceased.
10. The learned counsel for the driver as also the owner of the vehicle, i.e., the Corporation have, however, argued that the amount awarded by the Tribunal was perfectly in accordance with the salary of the deceased at the time of his death and no interference was called for in the circumstances. It has also been pleaded that the multiplier of 16 was excessive and a suitable one would have been 13 as the deceased was 50 years of age at the time of his death.
11. I have considered this aspect as well and find that Mr. Grover's argument has no merit. His reliance on a Single Bench judgment of the Delhi High Court reported as Seetha Lakshmi Krishnan and Ors. v. Gian Parkash and Anr., 1989 A.C.J. 887, to claim compensation for future prospects, is to my mind, misplaced a as the deceased inthat case was 34 years of age and had a long career ahead of him. I also find that thepay commission report was enforced from the year 1989 and cannot be made applicablein this case as the accident happened on 12.2.1981. I, however, do find merit in the submission of the learned counsel for the respondents that the multiplier of 16 was excessive as the deceased was 48 years at the time of his death, but in the circumstances thatthe payment would have been made to the claimants many years ago (as there was nostay order granted by this Court with respect to the operation of the award), I am disinclined to interfere with the finding recorded by the Tribunal on this issue. In the lastpart of the award, the Tribunal has held that certain amounts were to be with held onaccount of the shortfall in the payment of the court fee. I find that the legal issue withrespect to the question of court fee has now been decided in favour of the claimants andany amount which has been with held on that account shall also be released to theclaimants forthwith. The appeals are accordingly dismissed, however, with the abovequalification.