JUDGMENT
Vinod K. Sharma, J.
1. This order will dispose of F.A.O. No. 2710 of 1999 titled as Smt. Ginni and Ors. v. Union of India F.A.O. No. 2711 of 1999 titled as Sunita Gupta and Ors. v. Union of India F.A.O. No. 537 of 1999 titled as Union of India and Ors. v. Smt. Ginni and others and F.A.O. No. 538 of 1999 titled as Union of India and Ors. v. Sunita Gupta and others arising out of the award dated 11.11.1998 passed by the Motor Accident Claims Tribunal, Ambala (for short the ‘Tribunal’). For facility of reference facts have been taken from F.A.O. No. 2710 of 1999.
2. This is an appeal filed by the claimants challenging the award dated 11.11.1998 passed by the learned Tribunal in MACT Case Nos. 115 dated 17.5.1997 filed by Smt. Ginni Devi widow of Jitender Kumar Gupta claiming a compensation of Rs. 5 lacs for the injuries suffered by her. In MACT case No. 118 dated 17.5.1997 filed by Smt. Ginni Devi, Babu Ram and Vimal Kumar, compensation of Rs. 20,00,000/- (Rs. Twenty lacs) on account of death of Shri Jitender Gupta was claimed.
3. The facts of the case are that on 5.4.1997 the deceased Sunil Kumar along with his father Jitender Kumar deceased, her mother Smt.Ginni Devi and one Bohti Devi, petitioners in MACT Case Nos. 115 and 116 dated 17.5.1997 were proceeding from Jind to Chandigarh in Maruti car bearing No. CH-01-C-0306. The said car was being driven by Sunil Kumar deceased. At about 8/8.30 p.m. when this car reached near village Balana, District Ambala, a military truck bearing No. 76-D-22480-L was found parked on the metalled portion of the road without any indication of its parking by the driver. In view of the light of the incoming vehicle, his eyes were dazzled and accordingly Sunil Kumar diverted his car towards extreme left, where he could not see the parked truck and resultantly the car hit the rear portion of the truck. It was claimed that the visibility was very poor at that time due to darkness and the indicator of the said truck was also not on. It was further claimed that the accident had taken place due to negligence of the military truck driver. It was also claimed that due to the said impact Sunil Kumar and Jitender Kumar Gupta died on the spot while Smt. Ginni Devi and Smt. Bohti Devi received injuries on their person. It was also claimed that the car was being driven at a normal and moderate speed.
4. Smt. Ginni Devi in her claim petition claimed her age to be 52/53 years. She was firstly taken to General Hospital, Ambala and later on brought to Chandigarh where she was treated by a private doctor. In the accident, she lost her right eye. She claimed to have spent Rs. 30,000/- on her treatment for the injuries suffered by her and thus she claimed a sum of Rs. 5,00,000/- (Rs. five lacs) as compensation. The said claim petition was dismissed by the learned Tribunal.
5. In the claim petition bearing MACT case No. 116 of 17.5.1997 filed by Smt. Bohti Devi, she claimed herself to be 44 years. She asserted that she had spent a sum of Rs. 20,000/- on account of her treatment for grievous and multiple injuries on her person and a compensation to the tune of Rs. 2,00,000/- (Rs. two lacs) was claimed. The said claim petition was also dismissed.
6. In claim petition filed by Smt. Ginni Devi, Babu Ram and Vimal Kumar, legal heirs of Jitender Kumar, a compensation of Rs. 20,00,000/- (Rs. twenty lacs) was claimed by asserting that late Shri Jitender Kumar Gupta was aged about 55 years at the time of his death and was said to be earning Rs. 20,000/- (Rs. twenty thousand) per month by doing business.
7. In the claim petition MACT Case No. 117 filed by Smt. Sunita Gupta, Rohit Gupta, and Smt. Ginni Devi i.e. widow, minor sons and mother of deceased Sunil Kumar, a compensation of Rs. 25,00,000/- (Rs. twenty five lacs) was claimed. Shri Sunil Kumar, who was claimed to be 34 years of age, was said to be earning Rs. 20,000/- (Rs. twenty thousand) per month.
8. All the claim petitions were contested by the respondents by filing a joint written statement in which it was claimed that the vehicle in question was parked on the extreme left side of the road for checking and repair due to its break down. It was further claimed that when the Army personnel were repairing the military vehicle in question, its dipper was on. It was also claimed that when the Army personnel heard a bang of hitting something into their vehicle, they came to know that the Maruti car in question had hit their vehicle from the rear side due to rash and negligent driving and over speeding of Maruti car by Shri Sunil Kumar deceased. It was further claimed that the accident had occurred due to negligence of the deceased himself. The other averments made in the claim petitions were denied for want of knowledge. According to the respondents, since the accident had taken place due to carelessness and negligence of Shri Sunil Kumar deceased, the petitioners were not entitled to any compensation.
9. On the pleadings of the parties, following issues were framed in all the four claim petitions:
1. Whether the accident in question had taken place on account of rash and negligent driving of Military Truck No. 76-D-22480-L by its driver-respondent No. 3? OPP
2. To what amount of compensation, if any, the petitioners are entitled to and if so from whom? OPP
3. Relief.
All the claim petitions were consolidated and evidence was recorded in MACT Case No. 115/17.5.1997 titled as Smt. Ginni Devi v. Union of India etc.
10. On issue No. 1 the learned Tribunal on the basis of evidence brought on record came to the conclusion that the accident had taken place due to negligence and carelessness on the part of driver of the Army vehicle bearing No. 96-D-22480-L by its driver i.e. respondent No. 3.
11. On issue No. 2, in MACT Case No. 117/17.5.1997, it was claimed by the claimants that the deceased Sunil Kumar was earning a sum of Rs. 20,000/- (Rs. Twenty thousand), out of which he used to part with a sum of Rs. 12,000/- to 15,000/- to run household. It was further brought on record that due to death of Sunil Kumar the factory named Durga Foods in Industrial Area, Chandigarh, had to be closed down. This statement was duly supported by Smt. Ginni Devi. In addition thereto, Exhibit P-5 i.e. copy of income tax return for the year 1997-98 was also produced on record, wherein the net profit of the firm was shown to be Rs. 1,21,423/-. Keeping in view the documentary evidence brought on record, the learned Tribunal came to the conclusion that the deceased Sunil Kumar was earning Rs. 10,000/- (Rs. Ten thousand) per month from the said firm. However, out of the said amount, a cut of Rs. 5,000/- (Rs. five thousands) was imposed as it was held by the learned Tribunal that the dependency of the appellants was only Rs. 5,000/- (Rs. five thousands) and by applying a multiplier of 16, a sum of Rs. 9,60,000/- (Rs. Nine lacs sixty thousands) was awarded to the claimants on account of death of Sunil Kumar.
12. Mr. S.D. Bansal, learned Counsel appearing for the claimant-appellants contended that the learned Tribunal erred in law in imposing a cut of Rs. 5,000/- (Rs. five thousands) out of the assessed income of Rs. 10,000/- (Rs. ten thousands). According to the learned Counsel, as the deceased had a wife and minor children, who were studying in Stepping Stone School, Sector 9, Chandigarh, therefore, it could not be imagined that out of the income assessed, the half of the said amount would be spent by the deceased on himself. The contention of the learned Counsel for the appellants was that at best 1/3rd of the income could be deducted for personal use and therefore, the dependency ought to have been taken at least Rs. 7,000/- per month. I find force in this contention of the learned Counsel.
13. It may be noticed here that the Union of India has also challenged the award made by the Tribunal by filing F.A.O. No. 537 of 1999. Mr. M.S. Guglani, learned Counsel appearing on behalf of the appellants in this appeal, has assailed the findings of the learned Tribunal on issue No. 1 as well as on issue No. 2.
14. The contention of the learned Counsel appearing on behalf of Union of India was that the photographs produced on record clearly showed that the military vehicle was parked on katcha berm and further that the deceased Sunil Kumar had hit the said vehicle from behind. The contention of the learned Counsel for the UOI was that in view of this fact, it was a case of contributory negligence and, therefore, the findings recorded by the learned tribunal on issue No. 1 deserved to be reversed. By placing reliance on a judgment of the Karnataka High Court in Smt. Shrimanti v. Krishna Dev Madipal 2005(1) R.C.R. (Civil) 124, it was contended that as the military truck was hit from he behind by the driver of the Maruti car, it was a case of contributory negligence. This contention of the learned Counsel for the UO1 cannot be accepted as in the said authority the bus going at a high speed ahead of the motorcyclist which stopped suddenly and, therefore, the motorcyclist who hit the bus from behind was also held to be negligent as he was required to keep some distance between his vehicle and the vehicle going ahead of him. It is pertinent to notice here that the learned Tribunal has taken a note of the fact that the military truck was parked by its driver without any indication and it was on account of his negligence of not giving proper indication that the accident had taken place and, therefore, the learned Tribunal was right in coming to he conclusion that the accident had taken place due to negligence on the part of the driver of the military truck. The said finding of fact, therefore, cannot be reversed merely on the ground that the truck was parked on the left side of the road. The matter has been duly considered by the learned Tribunal and finding on issue No. 1 was rightly recorded against the Union of India. Thus, there is no force in the argument of the learned Counsel for the Union of India to the effect that the accident had occurred due to negligence of the car driver or on account of contributory negligence. The evidence produced by the Union of India regarding their own inquiry, was rightly rejected keeping in view the evidence produced by the claimants before the Tribunal. Thus, findings on issue No. 1 recorded by the Tribunal arc affirmed.
15. Learned Counsel appearing for the Union of India on issue No. 2 further contended that Exhibit P-5 relied upon by the claimants was the copy of the income tax return which was filed by the firm after the accident and, therefore, no reliance could have been placed on the said return as in the earlier income-tax return, the profit was shown to be Rs. 66,478/- (Rs. sixty six thousands four hundred and seventy eight). The learned Tribunal, therefore was wrong in assessing the income of Rs. 10,000/- per month. This contention of the learned Counsel for the UOI cannot be accepted as it is common knowledge that the income tax returns do not depict the correct picture of income by a party. The oral evidence produced on record i.e. statements of the widow and mother of the deceased Sunil Kumar read with other evidence showing the expenses on the study of the children in good school does not call for any interference in the finding recorded. Accordingly, the finding that the income of the deceased was Rs. 10,000/- (Rs. ten thousands) is hereby affirmed. As already held, it cannot be believed that out of the said amount, the deceased would have been spending Rs. 5,000/- on himself. Accordingly, after deducting 1/3rd amount out of the said income, the dependency is assessed at Rs. 7,000/- (Rs. Seven thousands) per month and by applying a multiplier of 16 the claimants are held entitled to Rs. 13,44,000/- (Rs. thirteen lacs forty four thousands),
16. MACT case No. 118 of 17.5.1997 was filed by Smt. Ginni Devi and others claiming compensation of Rs. 20,00,000/- (Rs. twenty lacs) on account of death of late Shri Jitender Kumar Gupta in the accident. In this case, the learned Tribunal was pleased to assess the income of Shri Jitender Kumar Gupta deceased at Rs. 12,000/- (Rs. twelve thousands) per month, out of which the dependency was assessed only at Rs. 5,000/- (Rs. five thousands) and multiplier of 12 was applied. Accordingly, compensation payable to the claimants was assessed at Rs. 7,20,000/- (Rs. seven lacs twenty thousands).
17. The contention of the learned Counsel for the appellant-claimants was that out of Rs. 12,000/- (Rs. twelve thousands), a sum of Rs. 7,000/- (Rs. Seven thousands) could not be deducted on account of personal expenses. The deceased had a big family and, therefore, at best, deduction of l/3rd could be made out of the said assessed income. Accordingly, the dependency of the claimants was required to be assessed at Rs. 8,000/-(Rs. eight thousands) per month. I find force in the contention of learned Counsel for the appellant-claimants and by applying a multiplier of 12, the claimants are held entitled to Rs. 11,52,000/- (Rs. eleven lacs fifty two thousands).
18. As a result of the foregoing discussion, F.A.O. No. 2711 of 1999 titled as Sunita Gupta and Ors. v. Union of India and Ors. is allowed and the compensation is enhanced from Rs. 9,60,000/- (Rs. nine lacs sixty thousands) to Rs. 13,44,000/- (Rs. thirteen lacs forty four thousands). The claimants shall also be entitled to interest @ 9% per annum on the enhanced amount from the date of claim petition till realisation. The liability shall be joint and several.
19. Similarly, F.A.O. No. 2710 of 1999 titled as Smt. Ginni Devi and Ors. v. Union of India and Ors. is also allowed and the compensation is enhanced from Rs. 7,20,000/- (Rs. seven lacs twenty thousands) to Rs. 11,52,000/- (Rs. eleven lacs fifty two thousand). In addition, the claimants shall also be entitled to interest @ 9% per annum on the enhanced amount from the date of claim petition till realisation. The liability shall be joint and several.
For the reasons recorded in F.A.O. No. 2710 of 1999, F.A.O. Nos. 537 and 538 of 1999 filed by the Union of India are dismissed.