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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
JUDGMENT
SHYAM LAL VS. DHOKAL RAM & ORS.
S.B. CIVIL MISC. APPEAL NO. 424/1997
against the judgment and award dated
24.01.1997 passed by the learned Judge,
Motor Accident Claims Tribunal, Sojat, Camp
at Jaitaran in MACT Claim Case
No.18/1994.
.............
DATE OF JUDGMENT : 14th July ,2008
PRESENT
HON'BLE MR.JUSTICE MANAK MOHTA
Mr.S.K.Sankhla for the appellant.
Mr.Sanjeev Johari for respondents.
BY THE COURT :
This appeal has been filed by the claimant-
appellant against the judgment and award dated
24.01.1997 passed by Judge, Motor Accident Claims
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Tribunal, Sojat, Camp Jaitaran in MACT Claim Case
No.18/1994, whereby, the learned Tribunal has partly
allowed the claim petition and has awarded a sum of
Rs.1,00,000/- plus interest @ 15% per annum as
compensation in favour of the claimant and against non-
claimants.
Briefly stated, the facts of the case are that on
27.06.93 at night at about 12.15 AM, Chandra Prakash,
Shyam Lal , Natwarlal and Bhanwarlal, all residents of
Beawar, were going from Bilara to Beawar by travelling
in Car bearing No.RRN 1357. When the car reached near
village Nimbaj, while it was plying on By-pass State
Highway, a truck bearing No.RNS-7177 was coming from
opposite direction, which was being driven rashly and
negligently by Dhokal Ram, non-claimant No.1
(respondent No.1) suddenly came to the wrong side of the
road and dashed with the car violently, as a result of
which Bhanwarlal, (driver of the car ),Natwarlal, Shyamlal
(appellant) and Chandra Prakash (occupants of car)
sustained severe injuries. All the injured were immediately
admitted in the hospital and during treatment, Bhanwarlal
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( driver of the car), succumbed to his injuries. A report of
the accident was lodged at P.S. Jaitaran . Police, after
usual investigation, filed the challan against the driver of
the truck non-claimant No.1 (respondent No.1) for
offences under Sec. 279 and 337,338 and 304-A IPC. It
was stated that the truck was owned by respondents No.2
and was insured with respondent No.3. Separate Claim
Petitions , i.e. Claim case No.87/1993, 21/1994 and
18/1994 were filed by Smt.Prem, w/o Bhanwarlal & Ors,
Natwarlal s/o Chhotulal and Shyam Lal s/o Bhanwarlal
(appellant), respectively which were disposed of by the
aforesaid common judgment.
It was submitted in claim case No.18/1994 filed by
injured Shyam Lal that at the time of accident, he was 30
years old and was engaged in selling lottery tickets and
from that job he used to earn about Rs.3,000/- per month.
Due to several serious injuries, he remained under
treatment for long time and during that period he could
not earn any income and also incurred heavy expenses in
treatment while visiting different hospitals. Due to these
injuries, it was also stated that he has lost vision of one
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eye and also his memory has been adversely effected and
he became permanently disabled,(vide Ex.38), resulting in
loss of income completely. Thus he has filed claim for a
sum of Rs.14,05,000/- on different heads and prayed to
allow the same against all the respondents.
Non-claimants No.1 and 2, driver and owner of the
truck, No.RNS 7177, though served with the notices, but did
not file any reply, therefore, exparte proceedings were
initiated against them.
Reply to the claim petition was filed on behalf of non-
claimant No.3, National Insurance Co. Ltd., in which it was
stated that the accident occurred due to the rash and
negligent driving of Car No.RRM 1357 by its driver. It was
also submitted that the owner, as well as the insurer of
the car, were necessary parties , they should have been
made parties to the case. It was stated that the claim case
was required to be dismissed for non-jointer of necessary
parties. It was further stated that the truck was being used
against the terms of the Insurance Policy as the driver of
the truck was not possessing valid licence. Further the
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registered owner of the truck has not been disclosed and
he has not been made party, therefore, the Insurance
Company could not be made liable to pay any
compensation to the claimant and prayed to dismiss the
claim petition.
As all the three claim petitions related to one single
accident, therefore, the learned Tribunal jointly tried claim
cases Nos.87/1993, 21/1994 and 18/1994 and decided the
same, by common judgment and award.
On the basis of the pleadings of the parties, the
following common issues were framed:
“1-आय द न क 27.6.93 क समय मधयर त क म ज
ननम ज र ड ब ई प स पर अप र स. 1 द र अपन
व हन टक सखय आर एन एस 7177 क तज रफत र
गलफत एव ल परव ह’ स चल कर र
) ट
+ न क ररत क.
जजसक पररण मसवरप श भवरल ल क. म5तय) क ररत
ह)ई ?
2- आय उपर क र
) ट
+ न क पररण मसवरप प र श
शय मल ल एव श नटवरल ल क गभ र पक5 नत क. च ट:
क ररत ह)ई ?
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3- आय प र गण कनतपक र' ह?
त दकतन ?
4- आय अप र स. 3 क जव ब म ग पत क आ> र पर
प र गण कनतपक र' नह' ह? ?
5- आय व हन सखय आर आर एम 1357 क म नलक
व ब म कमपन क पकक र न बन य ज न क क रण
म ग पत क बबल ख ररज ह? ?
6- आय बर वक र
) ट
+ न अप र स. 1 > कलर म
च लक क प स व?द ल ईस:स नह' र ?
7- अन)त ष।"
During the trial of the case, from the claimants’ side
AW/1 Smt.Prem, AW/2 Natwarlal, and AW/3 Shyam Lal
were examined, their statements were recorded and
relevant documents were got exhibited. From the side of
non-claimants, no evidence was produced.
After hearing both the sides, the learned Tribunal held
vide common judgment and award dated 24.01.1997 that
the accident occurred due to rash and negligent driving by
both the drivers of said truck and car, resulting in occurring
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death of car driver and causing injuries to others including ,
Shyam Lal (appellant). The learned tribunal, decided the
other issues No.4,5 and 6 with regard to non-joinder of
necessary parties, and truck driver was not having valid
licence against insurer of truck for want of proof and on
the contrary learned tribunal found driver’s licence of truck
driver on record. The learned tribunal, further considering
the age of 33 years of the injured , injuries sustained by
him and further holding total loss of yearly income as
assessed by learned tribunal Rs.28,800/-, and taking the
multiplier of 10, assessed the loss of income of
Rs.2,88,000/-. The learned tribunal further deducted ½ of
the amount on account of one time lump sum payment ,
thus, determined Rs.1,44,000/- and further awarded
compensation of Rs.60,000/- on other heads, thus, total
compensation in round figure determined Rs.2,00,000/-
but the learned tribunal awarded only upto 50% out of
the said sum to claimant appellant on the basis that
driver , owner and insurer of the offending truck were held
responsible for compensation upto 50%. Thus net
compensation award of Rs.1,00,000/- recoverable from the
said respondents in claim Case No.18/1994 related to this
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appeal, along with interest @ 15% per annum, from the
date of filing of the claim petitions from the respondents
i.e. driver, owner and insurer of the said truck and holding
jointly and severally responsible for the payment of said
compensation.
The claimant-appellant Shyam Lal in MACT Claim Case
No.18/1994, being aggrieved and dis-satisfied with the
finding on issues No.1 and 2, and on amount of
compensation awarded by the learned Tribunal vide said
judgment and award , has preferred this appeal for setting
aside and correcting the finding on issue No.1 and 2 and
also for quashing the findings with regard to deductions
on account of lump sum payment and on account of
holding 50% responsibility of the truck driver in causing
accident. The appellant has also filed appeal for
enhancement of the amount of compensation. Notice of
appeal was given to respondents, record of the case was
called .Parties were heard.
During the course of arguments, learned counsel for
the appellant submitted that the learned tribunal has not
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properly considered and appreciated the material available
on record and gave an erroneous finding on issues. It was
contended that the conclusion drawn with regard to issue
No.1, is not based on correct appreciation of material.
From the side of claimant, evidence was produced to
establish that accident was caused by rash and negligent
driving of truck driven by Dhokal Ram. It was submitted
that there was no rebuttal from the opposite side, but the
learned tribunal gave much emphasis on Ex.4, site plan,
prepared by the police during investigation, and on that
basis, concluded the issue while holding that both the
drivers were at negligence and held them responsible for
causing the accident. During the course of argument, the
learned counsel for the appellant, drew my attention
towards the finding arrived by the tribunal and other
material available on record in this respect, and again
stressed that the concerned car No.RRN-1357 in which the
claimant was sitting, was going on its right side but it was
the respondent No.1, who drew the car in rash and
negligent manner and caused the accident. The learned
counsel also urged that the police, after fair investigation,
has filed charge sheet, holding sole responsibility of the
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truck driver for causing accident. It was submitted that the
finding on issue No.1 is required to be set aside and
quashed. The learned counsel for the appellant further
contended that the learned tribunal has not properly
considered the material, while determining the quantum of
compensation. It was submitted that it has been proved by
the appellant that at the time of accident , appellant used
to earn Rs. 3,000/- to 4,000/- per month, by selling lottery
tickets. But due to injuries sustained by him, it was urged
that he became totally incapable to earn. But the learned
tribunal has wrongly assessed his income as Rs.28,800/-
per annum. Further, without properly applying the
multiplier, considering his age, determined the
compensation of Rs.2,88,000/-. It was contended that it
has been established on record that at the time of accident,
his age was 33 years and in this way the multiplier should
have been applied of 17 but the learned tribunal has applied
the multiplier of 10. It was contended by the learned
counsel that the tribunal again has committed a grave
error, in deducting 50 % of the sum i.e. Rs.1,44,000/- out
of assessed compensation amount of Rs.2,88,000/-on
account of one time lump sum payment. It was urged
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that such type of deduction was not justifiable and was
illegal. The learned counsel also contended that the tribunal
has awarded Rs.60,000/- compensation under other heads,
but taking into consideration the injuries sustained by him
and the loss incurred by him in long treatment , this
amount was meagre one. It was submitted that in this
way, the learned tribunal assessed the total compensation
of Rs.2,00,000/-. Further 50% of the so determined
amount, again has been deducted and on account of that
the responsibility in causing the accident of the truck driver,
has been held up to 50% and in this way only Rs.1,00,000/-
have been awarded as compensation. On the basis of these
submissions, it was stated that the tribunal has first
wrongly concluded issue No.1 , holding the responsibility of
both the drivers in causing the accident. In this respect, it
was also contended that even in case of holding the
responsibility of both the drivers in causing the accident,
the claimant was an occupant of the vehicle. Thus, he could
not be held responsible for any contribution in causing the
accident. Therefore, the claimant was entitled to receive
compensation from them but the learned tribunal has not
properly applied the principle of law. Like wise, the learned
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tribunal again committed error in deducting the sum on
baseless grounds. It was urged that such a finding was
erroneous. On the basis of these submissions, it was
prayed that the impugned judgment and award may be set
aside to this extent and adequate compensation may be
awarded.
On the other hand, the learned counsel for the
respondents, refuted the contentions and supported the
finding given by the learned tribunal. It was further
submitted that the learned tribunal has rightly held from
the material available on record, that the accident occurred
due to the rash and negligent driving of both the drivers
and on that basis, has rightly held the responsibility of the
truck driver, owner, and the Insurance Company for the
payment of compensation upto 50% of the determined
amount. On the basis of these submissions, it was prayed
that there is no scope for interference in the judgment and
the appeal may be dismissed.
I have considered the rival submissions and perused
the finding on each issue and the conclusion drawn
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thereon. I have also gone through the record of the case.
The main points remain for consideration in the
appeal are that whether the finding given by the learned
tribunal, on issue No.1 as to the responsibility in causing
the accident is not correct and requires modification ?.
Secondly, the compensation determined and awarded by
the learned tribunal , is not just , proper and adequate it
requires interference ?.
Before adverting to the contentions raised by the
learned counsel for the parties, I have perused the finding
given by the learned tribunal on issue No.1 . From the side
of claimants, to prove this issue AW/3 Shyam Lal and
AW/2 Natwar Lal have appeared and they have stated that
accident occurred due to rash and negligent driving of truck
by its driver . They have also stated that the car was going
in correct side and the truck came in wrong side and
dashed the car. It is also revealed from the record that
police , after a thorough investigation, has filed challan
against truck driver and the truck driver or any witness has
not appeared in rebuttal from the opposite side.
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The learned tribunal , mainly on the basis of Ex.4 ,
site plan, prepared by the police during investigation ,
though it has neither been proved by the opposite side by
producing the author of the site plan, nor investigating
officer of that case was produced in that respect, concluded
issue No.1 that, accident occurred due to the rash and
negligent driving of both the drivers. But in my opinion,
such type of conclusion , in absence of any statement, in
rebuttal merely on the basis of Ex.4, could not be arrived.
On the side of claimant, the eye witness as their presence
are well established, as they have been sustained injuries
clearly established that the car was driven in correct side
and the truck which came in high speed dashed the car
and thereby caused the accident in which the driver of the
car has lost his life and the person sitting in the car, also
sustained injuries. Thus, the finding of learned tribunal on
issue No.1, is not correct and is not sustainable and it is
found that accident occurred, solely due to rash and
negligent driving of the truck by respondent No.1 Dhokal
Ram, in which the appellant has sustained severe injuries.
Therefore, the truck driver respondent No.1 was sole
responsible for causing the accident. The finding given by
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the learned tribunal in this respect, is required to be
modified to this extent that instead of holding both the
drivers responsible for causing accident, it was the driver of
the truck who was sole responsible for causing the
accident.
The learned tribunal, while determining the
compensation , looking to the injuries sustained by the
appellant has assessed loss of income , that does not
require any interference . But the learned tribunal has taken
multiplier of 10 , that was not correctly applied as the age
of the appellant at that time has been established to be 33-
34 years . In that case, the appropriate multiplier of 17
should have been used. Further, the learned tribunal has
deducted 50% of the amount on account of one time
payment of compensation. That is also not tenable. Thus,
taking the annual loss of income Rs.28,800/- as
determined by the tribunal, and multiplying by 17 ,
compensation under this head comes to Rs.4,89,600/-
(28,800×17). Further, the tribunal has awarded Rs.60,000/-
under other heads. Considering the amount of
compensation awarded under other heads, that is also
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maintained. Thus, total compensation comes to
Rs.5,49,600/-. The learned tribunal further has deducted
50% of the sum, out of the awarded compensation, on
account of holding the responsibility 50% of the truck
driver, but as discussed above, the truck driver was found
solely responsible for causing the accident. Thus, such
deduction on this count, is not sustainable. From the side
of other angle also, in case of joint responsibility, the
claimant was entitled to recover compensation from any
one of them. In this way, the deductions made by the
learned tribunal, are liable to be quashed and set aside and
claimant was fully entitled to recover compensation as
determined and awarded above. The learned tribunal has
awarded interest at the rate of 15% per annum on the
sum of compensation but that is on higher side, that
requires modification and instead of that, interest @ 9%
per annum is maintained, as the incident was of the year
1993. The claimant appellant will be entitled to get the
interest at this rate from the date of filing of claim petition,
on due amount till realization.
On the basis of aforesaid discussion, the finding on
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issue No.1, is corrected and it is held that the accident
occurred due to sole responsibility of the truck driver and
on that basis, owner and insurer of the truck are held jointly
and severally responsible for the payment of compensation.
Further, the compensation determined by the learned
tribunal is modified. Now the compensation is determined
at Rs.5,49,600/- and the responsibility of paying the same
is held jointly and /or severally on driver, owner and the
insurer of the truck. Further, the claimant will be entitled to
get interest @ 9% per annum on due amount, from the
date of filing of the claim petition, till realization.
In the net result, the appeal is partly allowed. The
judgment and award passed by the learned tribunal is set
aside and is modified to the extent that for causing
accident, driver of the truck, respondent No.1 is held
responsible and the awarded compensation of
Rs.1,00,000/- is modified and enhanced to Rs.5,49,600/-
and appellant claimant is held to be entitled to recover the
amount of compensation Rs.5,49,600/- along with interest
@ 9% per annum from the date of filing of the claim
petition. If any amount is paid under no fault liability or
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under the judgment and award, that will be adjustable. For
the payment of entire compensation amount with interest
Respondent No.3 is directed to deposit the same in lower
tribuna within two months from where the appellant will be
entitled to receive the same. If the amount is not deposited
within the period given, then appellant will be free to
recover the same from the respondents. Rest of the
judgment is maintained. No order as to costs.
(MANAK MOHTA), J.
l.george
