Judgment:
Jitendra Chauhan, J.
C.M. No. 2771-CII of 1990
For the reasons recorded in the application, the delay of 61 days in re-filing the appeal is condoned subject to all just exceptions.
FAO No. 346 of 1990
This appeal has been filed by the Union of India against the Award dated 25.10.1989, passed by the Motor Accident Claims Tribunal, Hissar (for short the Tribunal) on the ground that the Ld. Tribunal has illegally and erroneously decided Issue Nos. 1 to 3 in favour of the claimants.
Brief facts of the case are that on 21.7.1988 at about 12.15 p.m Arun Sharma, a cyclist was going to his house situated at Jindal Colony. When he crossed the road to enter to the gate of the Colony, a Maruti Gypsy bearing registration No. 88-B-50263 L driven by Naresh Kumar in a rash and negligent manner hit Arun Sharma. He fell down on the road and received injuries on his head. He was taken to Jindal Hospital and lateron referred to Civil Hospital, Hissar, where he succumbed to his injuries on 22.7.1988. Claim petition was filed by the claimants under section 110-A of the Motor Vehicles Act, 1939. It was the case of the claimants that deceased Arun Sharma was aged about 27 years and was employed with M/s Jindal Strips Hissar and getting Rs. 1000/- p.m.
In the written statement filed by the respondents, it was alleged that Naresh Kumar was driving the Maruti Gypsy at a normal speed and all of a sudden the deceased came from front side and struck against the Gypsy and received injuries and died.
From the pleadings of the parties, the following issues were framed:-
1. Whether Arun Sharma died because of accident out of Gipri Maruti driven by respondent Naresh Kumar rashly and negligently under the employment of Union of India OPP
2. To what amount of compensation, the petitioners are entitled to? OPP
3. Whether two separate claim petitions are not maintainable over the death of one person? OPP
4. Relief.”
The Ld. Tribunal, while deciding Issue No. 1 observed that the accident took place due to rash and negligent driving of Naresh Kumar, respondent and the Issue was decided against him.
While deciding Issue No.2, the Ld. Tribunal, in para 13 of the judgment observed as under:-
13. In order to prove income of Arun Sharma at the time of his death, the petitioners have examined Suresh Jindal PW1 who is working as Clerk in labour office of Jindal Strips Hissar, and who on the basis of the record stated that- Arun Sharma joined the service of the factory on 6.3.1987 and that his monthly salary was Rs.775/- and besides, it he used to get bonus amount to Rs. 155/- per month and also free residential accommodation. Although this witness has also stated that Arun Sharma used to get cycle allowance of Rs.50/- per month, yet as this amount was personal of Arun Sharma being given to him as expenses of the cycle, it cannot be considered his income towards the family. As the statement of this witness could not be rebutted in any manner, it comes out that monthly income of Arun Sharma was 930/-. If out of this income Rs.310/- is taken as personal expenses of Arun Sharma, then his contribution to his yearly contribution to the family was Rs.620/- per month. In other words, his yearly contribution to the family was Rs. 7440/-. In Jyotsnadey and others v. State of Assam and Others, 1987(1) P.L.R-646, Hon'ble the Supreme Court has held that in such like cases, multiplier of 25 should be applied taking the average life as 70 years. Therefore, if multiplier of 25 is applied in this case, then compensation assessed on the above income comes to Rs.1,86,000/-. As respondent No.1 Union of India was owner of the vehicle in question and as Naresh Kumar was driving this vehicle during the course of his duties, both these respondents are liable to pay the compensation jointly and severally”.
Aggrieved against the findings of the Ld. Tribunal, Union of India filed this appeal on the ground that the multiplier of 25 applied by the Ld. Tribunal is on the higher side.
Learned counsel for the respondents submitted that the Ld. Tribunal has rightly arrived at the findings after computing the income of the deceased, which was Rs.930/- at the time of death and after applying cut of 1/3rd towards personal expenses, the income arrived was Rs.620/- p.m. Deceased was 25 years and his age has not been challenged. He stated that at the time of passing of the Award, the second schedule to The Motor Vehicles Act, 1939 did not exist and the multiplier used to be applied taking into consideration average life span of an individual. He pointed out that Hon'ble the Apex Court assessed the average life span to be 60 years and accordingly multiplier was applied in this case.
I have heard the learned counsel for the parties and gone through the file.
The Ld. Tribunal has rightly arrived at the findings that the driver Naresh Kumar was rash and negligent in driving the vehicle and caused the accident in question. In paras 6,7, and 8 of the Award, it was observed as under:-
“6. In order to prove that the accident took place due to rash and negligent driving of the Vehicle by Naresh Kumar, respondent, petitioners have examined Jai Bhagwan Bansal PW4 and Dariya Singh PW5. Jai Bhagwan Bansal (PW4) has stated that on 21.7.1988 after lunch interval at about 12 noon he and Arun Sharma were going to Jindal Colony from the premises of Jindal Strips. That Arun Sharma was ahead of him and when he had crossed the turning of Jindal Strips Colony and was in the process of crossing the road and was at about one foot ahead of the corner of the road from the side of Delhi, one Maruti Gypsi of blue colour came at a very fast speed and without blowing any horn and struck against the cycle of Arun, as a result of which, he had fallen on the bumper of the Jeep and then on the road and that the driver of the Gypsi Maruti took Arun Sharma to Jindal Hospital, Hissar. More or less to the same effect is the statement of Dariya Singh (PW5).
7. In fact, taking place of the accident in question has been admitted by the respondents but their case is that Naresh Kumar was not at fault because he was coming from the side of Delhi while driving the jeep at a normal speed but all of a sudden Arun Sharma came in front of the jeep by taking right hand turn and struck against it. In order to prove this pleas, the respondents have examined K.N.Bhatt as RW2 who has deposed to this plea taken by the respondents.
8. From the evidence produced by both the parties, it comes out that both Jindal Strips and Jindal Colony are situated on the left hand side of the Delhi-Hissar road. If we come from the side of Delhi that this road is a double lane road with a driving berm; that in order to reach Jindal Colony from the Jindal Strips firstly, one has to go on the lane situated towards the right hand side. If we come from Delhi and then has to go to right hand side through the verge situated near the place of accident in order to go to Jindal Conlony. K.N.Bhatt, RW1 has stated that Arun Sharma had been taken right hand turn through the said verge and he hit the Gypsi. From this statement of K.N.Bhatt, one thing is clear that Arun Sharma was crossing the road through the verge meant for this purpose. Although, K.N.Bhatt, RW1 has stated in cross-examination that speed of the Gypsi was about 35/40 kms, yet at the same time he has also stated that after the accident, the jeep had skidded and stopped at a distance of 15 feet. Now, if the Jeep after the accident had skidded and then stopped at a distance of 15 feet, then it cannot be said that it was being driven at a normal speed because otherwise on seeing Arun Sharma coming on the road from the lance situated on his right hand side Naresh Kumar could have stopped h is Jeep before hitting Arun Sharma. From these circumstances the only inference that can be drawn is that Naresh Kumar respondent was approaching the verge which was meant for the traffic to go from one lane of the road to the other, duty was enjoined upon him to have slowed down the speed of his jeep so that in case any persons from the right hand side came on the road he could control his vehicle. In this connection, reference may be made to the authority of our own Hon'ble High Court reported as Oriental Fire and General Insurance Co. Ltd and Others Versus Krishna Devi and Others 1988 (1) ACC 134, wherein similar circumstances by observing as follows in para No. 4 at page 137 of the report, it was held that driver of the vehicle was negligent:-
“The Manimajra-Chandigarh-Shimla crossing is a crowded one. All types of miscellaneous traffic cross it including heavy and light vehicles, cars, cycles and even pedestrians. It was, therefore, the duty of the respondent No. 2 to slow down the vehicle and when the deceased had not only entered the road but was in the process of crossing it, he should have applied brakes to the vehicle to avert the accident but this he did not do. Rule 6 of the 10th Schedule of the Act enjoins upon the driver of a motor vehicle to slow down when approaching a road inter section and not to enter it until he is aware that he can do so without endangering the safety of persons thereon. The finding of the Tribunal that the facts and circumstances of the present case do not suggest that respondent No.2 slowed down the vehicle before entering into the crossing or that he made sure that he could do so with due regard to the safety of the persons already on the crossing is unexceptionable. I find that the deceased was in no way negligent when he plying the cycle tried to go and cross the road near the crossing particularly when he had virtually reached near the divider of the dual carriage road. The accident is, therefore, solely, attributable to the rash and negligent driving of the vehicle by respondent No.2. There was no negligence whatsoever on the part of the deceased.
In view of the above judicial pronouncement, the Ld. Tribunal observed that the accident occurred due to rash and negligent driving of driver Naresh Kumar and decided the issue in favour of the petitioners.
A perusal of the above shows that at the time of accident, Arun Kumar was 25 years old. He was getting salary of Rs.930/- and the Ld. Tribunal applied the multiplier of 25 in the case, keeping in view the average life span of an individual to be 60 years and in view of the law laid down in Jyotsnadey v. State of Assam (supra). The findings arrived at by the Ld. Tribunal are in consonance with the MV Act ( in force at that time) and as per the law laid down by the Apex Court at that time.
In view of the above, no ground is made out to interfere in the Award dated 25.10.1989 passed by the Ld. Tribunal. The 50% amount of compensation retained by the appellant is ordered to be released to the claimants forthwith, failing which the same shall carry interest at the rate of 7.5% per annum from the date of passing of the Award i.e. 25.10.1989 till its realization. The appeal fails and is dismissed. No costs.