| SooperKanoon Citation | sooperkanoon.com/501869 |
| Subject | Motor Vehicles |
| Court | Madhya Pradesh High Court |
| Decided On | Jan-27-2009 |
| Judge | Shantanu Kemkar, J. |
| Reported in | 2009(2)MPHT540 |
| Appellant | Usha (Smt.) and ors. |
| Respondent | Rajesh and ors. |
| Disposition | Appeal allowed |
Shantanu Kemkar, J.
With the consent heard finally.
1. Feeling dissatisfied with the amount of compensation awarded to them the appellants/claimants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') for enhancement of the compensation awarded to them vide award dated 17-4-2007 passed by 8th Additional Motor Accidents Claims Tribunal, Indore (for short 'the Tribunal') in Claim Case No. 175/07.
2. Briefly stated on 9-10-2005 deceased Nanuram was going alongwith Mahesh on his motorcycle bearing Registration No. MP 09 JX 8974. When the motorcycle reached at Tejajinagar, Indore By-pass square a Truck Trolley bearing Registration No. HR 68-A-7585 coming from Dewas side dashed the motorcycle resulting into death of the said Nanuram on the spot. The appellants/claimants being widow, son, daughter and mother of the deceased filed a claim petition under Section 166 of the Act seeking compensation of Rs. 20,00,000/- from the respondents.
3. The owner and the driver remained ex parte before the Tribunal. The respondent No. 3 Insurer filed written statement and denied the averments made in the claim petition. The Tribunal framed as many as 5 issues and after recording evidence taking the income of the deceased to be Rs. 3,000/- per month deducting l/4th for his personal expenditure and applying the multiplier of 17 assessed the compensation of Rs. 4,59,000/- for loss of dependency. However, the amount was restricted to 50% on the ground of contributory negligence of the deceased himself. The Tribunal after restricting the amount of compensation to the extent of 50% by adding Rs. 4,500/- for loss of consortium to wife and Rs. 2,000/- for funeral expenses awarded total compensation of Rs. 2,36,000/- to the appellants/claimants.
4. Shri Manish Jain, learned Counsel for the appellants argued that the Tribunal has committed error in deducting the amount of compensation by holding that there was contributory negligence on the part of the deceased. He submitted that there was no evidence to prove that the deceased who was riding the motorcycle was negligent. He further submitted that when the accident had occurred at intersection of two roads and when as per the spot map (Exh. P-2) the Truck Trolley was coming from Dewas side and was going to Rao side and the deceased was coming from Khandwa side and was going towards Indore side, it was not a case of head on collision. He referring to the spot map (Exh. P-2) argued that the dash to the motorcycle was from its side and there was no head on collision. He argued that the driver of Truck Trolley having been not produced in the evidence, adverse inference was required to be drawn as burden to prove contributory negligence was upon the respondent No. 3 who had taken such defence. His next submission was that the assessment of the income of the deceased by the Tribunal is on lower side. He submitted that when there was ample evidence about the income including the Income Tax Returns of the deceased the same ought to have been taken into consideration for appropriate assessment of the income of the deceased. Thus, according to him the award being on much lower side it deserves enhancement.
5. Shri S.V. Dandwate, learned Counsel appearing for the third respondent insurer argued that in view of Rules 8 and 9 of the Road Regulations Act, 1989 while entering into the intersection of the road the deceased motorcycle rider was expected to have taken appropriate precaution so as to avoid the accident with the Truck Trolley which is coming from his right side. He submitted that having not done so the Tribunal has rightly held the motorcyclist guilty of contributory negligence. He next submitted that in the absence of any details as to the source of the income disclosed by the deceased in his income tax returns, the Tribunal has rightly assessed the income of the deceased to the extent of Rs. 3,000/- per month. He argued that having regard to the number of dependent members the deduction for personal expenditure ought to have been to the extent of l/3rd of the total income of the deceased instead of l/4th as has been deducted by the Tribunal.
6. In order to prove the accident the appellants/claimants examined Leeladhar (P.W. 3). He stated that he is having a Tea shop at Tejajinagar, Indore By-pass Square, while he was in the said Tea shop at about 9.30 p.m. a motorcycle coming from Khandwa side was dashed at the said square by a Truck Trolley coming at an excessive speed in a zigzag manner. According to him, the accident occurred due to sole rash and negligent driving on the part of the Truck Trolley driver. He further stated that the motorcyclist died on the spot and the Truck Trolley driver left the vehicle and fled from the spot. He further stated that he reported the incident vide FIR (Exh. P-l).
7. Spot map (Exh. P-2) reveals that the Truck Trolley was coming from Dewas and was going to Rao. It also reveals from it that the motorcycle was coming from Khandwa side and was going to Indore side. At the intersection of the road at Tejajinagar square the accident occurred and the motorcycle was dashed to its side. The driver of the Truck Trolley or any other person has not been examined by the respondents in order to prove that there was contributory negligence of the motorcyclist. No one has been examined on the part of the respondents to disprove the version of the eye-witness Leeladhar (P.W. 3) that the driver of the Truck was negligent. The burden to prove that there was contributory negligence on the part of the motorcyclist having not been discharged by the respondents by adducing evidence in that respect by producing driver of the Truck Trolley or any other witness in the circumstances in my considered view, the Tribunal has committed error in holding the contributory negligence of the deceased motorcyclist.
8. The evidence of Leeladhar (P.W. 3), which also finds support from the spot map (Exh. P-2) clearly establishes the sole negligence of the driver of Truck Trolley in causing the accident. The burden to prove that the deceased had violated the Rule 8 or 9 of the Road Regulations, 1989 was also on the respondent which has not been discharged by adducing any evidence. Even otherwise no presumption of negligence of the deceased motorcyclist can be drawn merely because the accident occurred at the intersection of two roads. Thus, the finding recorded by the Tribunal that the deceased was contributory negligent in the accident, being erroneous the same is set aside and as a result deduction of 50% of the compensation amount on that account cannot be ordered.
9. Now coming to the question as to whether the amount of compensation assessed by the Tribunal is inadequate and unjustly low. The Tribunal disbelieved the income tax returns and the statement of computation sheets of Income Tax (Exhs. P-22 and P- 25) on the ground that the details about the source of income of the deceased from the interest as shown in the said computation sheets has not been proved by the appellants/claimants. In my considered view, the approach of the Tribunal cannot be said to be justified. When the claimants have proved that the deceased was in the business of Eletrics and Electronics Goods as also in the business of Finance as per the certificates (Exh. P-18 and Exh. P-20) it was not incumbent upon the appellants/claimants to have given the details as to from which source the deceased earned the income of interest. The deceased was income tax payee since the year 1999-2000. His Income Tax return of the year 2003-2004 was filed much prior to the date of accident and death. Taking into consideration the said Income Tax Return of the year 2003-2004 submitted by the deceased himself his yearly income can be safely assessed to Rs. 71,230/-. The Tribunal has correctly applied the multiplier of 17 for the deceased aged 32 years. The Tribunal has deducted l/4th of the income of deceased for his personal expenditure, taking into account the number of dependants to be 5. However, having regard to the nature of his business, the age of minor son, minor daughters and the age of mother to be 70 years at the time of accident, in my considered view deduction of l/3rd for the personal expenditure of the deceased would be appropriate. Thus, deducting l/3rd for the personal expenditure the annual dependency comes to Rs. 46,820/-. The appellants/claimants shall be entitled for compensation of Rs. 46,820/- x 17 = 7,95,940/-. In addition the appellants would be entitled for Rs. 5,000/- for loss of consortium, Rs. 5,000/- each to the son, daughters and mother for loss of love and affection, Rs. 2,500/- for loss of estate and Rs. 2,000/- towards funeral expenses. Thus, the total compensation for which the appellants are entitled is Rs. 8,25,440/-. The enhanced compensation shall carry interest at the rate of 9% per annum from the date of application till payment.
10. The appeal stands allowed.
No orders as to the costs.