JUDGMENT
Kailash Gambhir, J.
1. The present appeal is preferred against the award dated 3.8.95 of the Motor Accidents Claims Tribunal, whereby an award of Rs. 3,22,200 was made. Brief facts of the case are that on 4.4.85, Sh. Jitender Singh, aged 21 years was going in TSR bearing registration No. DIR 3014 driven by its driver, at about 6 A.M. On reaching near St. Michel School on Bawana Road, a DTC bus bearing registration No. DEP 8462 driven in a rash and negligent manner by its driver, hit thesaid TSR resulting into death of Sh. Jitender Singh due to fatal injuries received in the accident. A claim petition was filed on 29.5.1985 and award was made on 3.8.1995. Aggrieved with the said award the present appellant DTC has preferred this appeal.
2. Mr. J.N. Aggarwal, counsel for the appellant contended that the tribunal erred in holding Nirmala Devi as the legal heir of the deceased Sh. Jatinder Singh when there is evidence on record that she has remarried. Second contention of the counsel is that the driver of the bus was not solely negligent but the driver of TSR also contributed and was negligent to the extent of 50% for the accident. The counsel also alleged that the tribunal erred in relying upon the testimony of PW-5, Shri Suraj Mal, owner and driver of TSR in coming to the conclusion that the bus was running at a high speed and it did not blow any horn and reversed towards the right side. Further, it was maintained by the counsel that the version of the bus driver was not only plausible but duly corroborated by the facts of the case, wherein it was stated that it was the TSR driver who wanted to overtake and due to his careless attitude alone the unfortunate accident happened. therefore, the TSR driver was equally negligent. It was further urged by the counsel that the tribunal erroneously relied on the FIR which suggests that the front right side of the bus was damaged and, therefore, it should be taken as if the bus had hit the TSR with force. The counsel also contended that there was no documentary evidence to prove the income of the deceased, therefore, the tribunal erred in calculating loss of dependency at Rs. 1600/- P.M. The counsel submitted that the multiplier of 16, interest rate of 12% and compensation of Rs. 3,07,200/- towards pecuniary damages and Rs. 15,000/- towards non-pecuniary damages, all are on the higher side, excessive and exorbitant.
3. Per contra counsel for the respondents has vehemently denied the averments of the counsel for the appellant and in his cross objection contended that the learned MACT fell into an error of law while looking at the aspect of the income of the deceased Jatinder Singh, when PW5, Shri Suraj Mal, driver and owner of TSR had stated on oath that deceased used to carry milk in 20 liter cans, five cans at a time for supply to various customers. It was further stated by PW5 that the deceased was keeping 12 buffaloes in his diary farm, therefore, the monthly income of the deceased at Rs. 7,000/- cannot be said to be on the higher side and therefore, enhancement in compensation should be granted by this Court. The counsel further maintained that PW5 was an independent witness and was resident of the same locality, where the deceased was carrying out his diary farming business, therefore, the learned Tribunal fell in grave error in not relying on the deposition of PW5. The counsel urged that the observation of the Tribunal that the deceased was not keeping any account books nor was an income tax payee is erroneous as it is a matter of common knowledge that the persons in rural area generally do not maintain any account and do not appoint any accountant. Further it was maintained by the counsel that no income tax is levied on the income derived from diary farming and therefore, the Tribunal erred in observing that the deceased was not an income tax payee. The counsel, therefore, urged for enhancement in compensation.
4. I have heard learned Counsel for the parties and have perused the record.
5. On the contention of remarriage of the claimant Smt. Nirmala Devi with her brother-in-law, Shri Harinder Singh, it is clear from the award that though some material regarding the remarriage has been placed on record but the same has not been proved. Mere placing material on the record is not sufficient, the same should also be proved in accordance with law. Although, a DTC officer, who was examined as RW2, investigated the case of re-marriage of the claimant for official purposes and had placed a photocopy, Ex.R-1, of the same on record, but the said investigation was done ex-parte. Further, the tribunal has observed that the said DTC officer, RW-2 has himself admitted that while conducting such investigation, no statement of the witness was recorded, therefore, the same is self serving and an ex parte report which cannot be relied upon. No person who attended the second marriage of the claimant or the name of the person on the basis of whose statement the said report was made was not produced by the said officer, RW-2. I do not find any infirmity in the decision of the Tribunal on this issue.
6. As regards the issue of contributory negligence as raised by the counsel for the appellant the same is also without any force. On perusal of the award it is clear that the claimants have not only relied on the testimony of the driver of the TSR, Shri Suraj Mal, but have also placed reliance on the testimony of an independent eye witness PW-4, Shri Mahabir, who deposed that the bus was at a high speed and without blowing any horn it sewered towards its right side and hit the TSR. The decision of Shri Ratan Singh, driver of the DTC, offending vehicle cannot be believed as he is an interested witness. It has also been observed by the learned Tribunal that the police had also in the course of its investigation found the DTC driver rash and negligent and therefore, had challaned the DTC driver and, therefore, even the circumstantial evidence does not support the version of DTC driver. I do not find infirmity in the approach of the Tribunal relying upon the FIR report which is Ex. PW 3/A, wherein, it was narrated by the TSR driver that the front right side of the DTC bus was damaged.
7. The Apex Court has explained ‘contributory negligence’ in the following words in the judgment in Municipal Corporation of Greater Bombay v. Laxman Iyer .
6. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other’s negligence. Whichever party could have avoided the consequence of the other’s negligence would be liable for the accident. If a person’s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defense to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn., para 328.) It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise.
8. On the basis of the above discussion and after relying upon the FIR, I do not feel that the TSR driver was also contributory negligent. On the issue of income of the deceased, multiplier, rate of interest and non-pecuniary damages granted by the Tribunal, I feel that as regards the income of the deceased, since there was no proof of income of the deceased on record, the Tribunal has rightly not believed the income of deceased at Rs. 7000/- p.m. The Tribunal has assessed the income of the deceased at Rs. 1200/- p.m. after taking into consideration the business of selling milk as a joint family business. Under such circumstances, the Tribunal could have taken aid of the Minimum Wages Act to determine the minimum wages as prevailing on the date of accident being the monthly income of the deceased. Since, the deceased was into business of dairy farming, then the minimum wages of a semi-skilled workman as prevailing on the date of accident could have been taken as the income of the deceased. Once minimum wages are taken in account then the increase under the Minimum Wages Act could also have been considered. Although, the Tribunal has wrongly doubled the income of the deceased considering the future increase of wages but the net result would not be different if the income is doubled under the Minimum Wages Act, therefore, I do not feel inclined to interfere with the findings of the Tribunal with regard to the income of the deceased. The Supreme Court in Oriental Insurance Co. Ltd. v. Meena Variyal has observed as under:
It was necessary for the claimants to establish what was the monthly income and what was the dependency on the basis of which the compensation could be adjudged as payable. Should not any Tribunal trained in law ask the claimants to produce evidence in support of the monthly salary or income earned by the deceased from his employer company? Is there anything in the Motor Vehicles Act which stands in the way of the Tribunal asking for the best evidence, acceptable evidence? We think not. Here again, the position that the Motor Vehicles Act vis-vis claim for compensation arising out of an accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law to forget all basic principles of establishing liability and establishing the quantum of compensation payable. The Tribunal, in this case, has chosen to merely go by the oral evidence of the widow when without any difficulty the claimants could have got the employer Company to produce the relevant documents to show the income that was being derived by the deceased from his employment.
9. On the issue of multiplier of 16 as applied by the Tribunal, I do not find any infirmity in the same as the applied multiplier of 16 in the facts of the present case is in consonance with the IInd Schedule of the M.V. Act. It has been laid down by the Hon’ble Apex Court in Abati Bezbaruah v. Dy. Director General, Geological Survey of India that the IInd schedule is a good guide for the purpose of computation of compensation and any deviation there from should be made only in peculiar facts of the case. The relevant para of the said judgment is reproduced below:
11. It is now a well-settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation from the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case.
10. On the question of rate of interest of 12% as granted by the tribunal. I do not feel any infirmity in the same. Interest is the compensation for forbearance or detention of money to be paid to the claimants. The tribunal has granted 12% rate of interest keeping in mind the policy of reserve bank, interest payable on fixed deposits and many other such factors. In this regard the Hon’ble Apex Court has observed in Abati Bezbaruah v. Dy. Director General, Geological Survey of India , as reproduced below:
6. The question as to what should be the rate of interest, in the opinion of this Court, would depend upon the facts and circumstances of each case. Award of interest would normally depend upon the bank rate prevailing at the relevant time.
18. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc., into consideration. No rate of interest is fixed under Section 171 of the Motor Vehicles Act, 1988. Varying rates of interest are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if a claimant does not specifically plead for the same, as it is consequential in the eye of law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of the money, which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident claim cases having regard to the nature of provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions, mercantile usage and doctrine of equity. Neither Section 34 CPC nor Section 4-A(3) of the Workmen’s Compensation Act are applicable in the matter of fixing rate of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard-and-fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal or the High Court as indicated above.
11. On the basis of the above observation, I do not find any infirmity in the award of 12% rate of interest.
12. On the issue of non-pecuniary damages I feel that Rs. 15,000/- towards loss of consortium is sufficient but the the tribunal has not granted any amount towards funeral expenses, therefore, Rs. 5,000/- is granted under that head of compensation. The tribunal has also not granted any amount towards loss of love and affection to the other four claimants who are father and brothers of the deceased, therefore, Rs. 20,000/- (Rs. 5,000/- each) is granted to them towards loss of love and affection to them.
13. With these observations, the present appeal and cross objections are accordingly disposed of.