Partly allowed

Suresh Devi and Ors. v. Pukh Raj @ Pukh Ram and Ors.

Rajasthan HC21 Feb 2023CMA/2523/2007

Case brief

AI extract

What is this about?

The High Court set aside the Motor Accident Claims Tribunal's award of compensation due to its erroneous finding of contributory negligence based only on a site plan and the deceased's invalid license. The Court held that contributory negligence was not legally proven and mandated the grant of future prospects compensation.

What did the court decide?

The appeal was partly allowed. The Tribunal's finding on contributory negligence was set aside. Future prospects compensation was granted, and the total compensation was enhanced to Rs. 5,47,000.

Suresh Devi and Ors. Vs Pukh Raj @ Pukh Ram and Ors. — Motor Accident Claims | Rajasthan HC (2023)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Misc. Appeal No. 2523/2007

¶3

Suresh Devi w/o Late Shri Devaram Age 28 years

¶4

Sunita D/o Devaram Age 10 years

¶5

Puja D/o Devaram Age 8 years

¶6

Manjudi D/o Devaram Age 6 years

¶7

Supriya S/o Devaram Age 4 years

¶8

Tarita D/o Devaram Age 1 year

¶9

Sohanidevi W/o Hapuram Age 50 years All r/o Dhoolkot, Teh. Raipur District Pali

¶10

(Appellant No.2 to 6 are minor through mother appellant no.1)

¶11

Hapu Ram S/o Choga Ram Bawari Age 52 years, R/o Dhoolkot, Teh. Raipur, Dist. Pali.

¶12

----Appellants

¶13

Versus

¶14

1. Pukhraj @ Pukharam S/o Paanchuram Gurjar r/o Dhoolkot
Tehsil Raipur District Pali. (Driver)
2. Mangilal S/o Paanchuram Gurjar r/o Dhoolkot Post Hajiwas via
Ber Tehsil Raipur District Pali. (Owner)
3. Oriental Insurance Company Limited through Divisional
Manager, Mandia Road, Pali. (Insurer)
----Respondents

¶15

For Appellant(s)	: Mr. SandeepSaruparia
For Respondent(s)	: Mr. U.C.S. Singhvi

¶16

HON'BLE MS. JUSTICE REKHA BORANA

¶17

Judgment

¶18

21/02/2023

¶19

The present appeal has been filed against the award dated 06.09.2007 passed by the Motor Accident Claims Tribunal, Jaitaran, District Pali (hereinafter referred to as 'the learned Tribunal') whereby although an award of Rs.3,06,500/- has been passed in favour of the claimants but holding the contributory negligence of the deceased, 30% of the awarded amount has been

¶20

(2 of 10)

¶21

[CMA-2523/2007]

¶22

directed to be deducted qua the contributory negligence. Therefore, after deduction as aforementioned, a claim of Rs.2,14,500/- has been awarded in favour of the claimants who are the parents, wife and the five minor children of the deceased.

¶23

Learned counsel for the appellants submitted that the finding of the learned Tribunal regarding the contributory negligence of the deceased is totally contrary to the record and therefore, liable to be set aside. He submitted that it was not even the case of the respondent owner or the insurer of the vehicle that the motorcyclist was negligent and the accident occurred due to his contributory negligence. No evidence qua the said fact was led by any of the respondents and therefore, the finding as arrived by the learned Tribunal cannot be upheld. In support of his contention, learned counsel relied upon the judgment passed by Hon’ble Apex Court in the cases of Mangla Ram v. Oriental Insurance Co. Ltd. and Ors.[2018 ACJ 1300] and The New India Assurance Company Limited and Ors. Vs. Somwati and Ors. [(2020) 9 SCC 644].

¶24

Learned counsel further submitted that the finding of the learned Tribunal is based solely on the site plan which cannot be treated to be a substantive piece of evidence. He submitted that even if the same is taken into consideration, the conclusion as arrived by the learned Tribunal proves to be totally contrary even to the site plan. In support of his contention, learned counsel relied upon the judgments passed by this Court in Sushila v. Mohan Singh & Ors. [2015 (2) R.A.R. 564 (Raj.)] and United India Insurance Company Ltd. v. Smt. Sugni Devi & Ors. [2013 R.A.R. 21 (Raj.)].

¶25

(3 of 10)

¶26

[CMA-2523/2007]

¶27

Learned counsel for the appellants further submitted that the learned Tribunal has held the deceased to be guilty of contributory negligence, also because of the fact that he did not have a valid driving licence. He submitted that this cannot be a ground for holding a driver to be negligent. In support of his contention, learned counsel relied upon the judgment passed by this Court in the case of Shanti Lal & Anr. v. Ramesh Chandra & Ors. [2019 (4) DNJ (Raj.) 1597].

¶28

Arguing upon the quantum of compensation, learned counsel submitted that the future prospects as well as the compensation qua the loss of consortium have wrongly not been granted by the learned Tribunal to the claimants. In support, he relied upon the latest pronouncements of the Hon’ble Apex Court in National Insurance Co. Ltd. v. Pranay Sethi [2017 ACJ 2700 (SC)] and Rajwati @ Rajjo & Ors. v. United India Insurance Company Ltd. & Ors. [2022 Supreme(SC) 1231].

¶29

Despite service, none has put in appearance on behalf of respondent No.1 Driver as well as respondent No.2-Owner of the Jeep involved in the accident.

¶30

Learned counsel for the respondent-Insurance company submitted that the findings as arrived by the learned Tribunal are totally in conformity with the site plan as well as the material which was available on record. Learned counsel submitted that a bare perusal of the site plan makes it clear that the deceasedmotorcyclist was equally responsible for the accident as he drove in a negligent manner. Learned counsel submitted that the driver of the vehicle in question i.e. Jeep was possessing a license to drive light motor vehicle only and was not entitled to drive a commercial vehicle. Therefore, there was a specific breach of

¶31

(4 of 10) [CMA-2523/2007]

¶32

condition of the insurance policy and the insurer was therefore, not liable to pay the compensation. In support of his contention learned counsel relied upon the Hon’ble Supreme Court judgment passed in the case of National Insurance Company Vs. Kusum Rai (AIR 2006 SC 3440) . In support of his contention that where a collision of two vehicles take place in the middle of the road, both the drivers would be equally responsible, learned counsel relied upon the judgments passed in the cases of Oriental Insurance Co. Vs. Mohan Kanwar & Ors; S.B. Civil Misc. Appeal Nos. 702 and 714 of 1998 of this Court decided on 28.03.2006 and Shivaji Waman Eodase and Ors. Vs. Chandrapati Ishwarsingh Dahiya and Ors. F.A. Nos. 246 to 251 of 1987 of the Bombay High Court decided on 20.04.2006.

¶33

So far as the reliance of the learned Tribunal upon the site plan is concerned, learned counsel submitted that the same was validly relied upon by the Tribunal as the site plan was a document prepared by the police officer while discharging his official duty and the same is admissible in evidence without there being a formal proof. In support of his contention learned counsel relied upon the judgment passed in the case of United India Insurance Co. Vs. Hamu Ram & Ors.; 2004 RAR 308, decided on (21.03.2003) .

¶34

Heard learned counsel for the parties and perused the material available on record.

¶35

The learned Tribunal has reached to a finding that the accident between the two vehicles i.e. the motor cycle and the jeep occurred in the center of the road and that too at a place where there was a curve in the road. Because of the curve, the vehicles were not visible to each other and therefore, they

¶36

(5 of 10)

¶37

[CMA-2523/2007]

¶38

collided. Learned Tribunal has found that where the vehicles collide head on, it cannot be because of negligence of any one of the driver. Further, the deceased who was driving the motor cycle did not even have a valid driving licence. It was therefore, concluded that the accident occurred due to negligence of both the vehicles and hence the contributory negligence of the deceased was held to be proved on record. The said conclusion of the learned Tribunal is based on the site report Exhibit-4.

¶39

In the opinion of this Court, the site report rather proves to the contrary. According to the site report, the jeep was placed at mark ‘C’ after hitting the motor cycle at mark ‘A’. A bare perusal makes it clear that mark ‘C’ is on the right side of the road and admittedly, the jeep was supposed to be driven on the left side of the road. Meaning thereby, the jeep which was supposed to be on the left side, moved towards the right, hit the motor cycle towards the center of the road and because of the high speed, after hitting, reached to the extreme corner of the road towards right and halted there. As per the site report, the motor cycle is shown to be lying at mark ‘B’ which is also on the extreme right of the road. The pieces of broken glass have also been shown to be between mark ‘A’ to ‘B’. The body of the deceased has been shown to be placed at mark ‘X’ which is somewhere between mark ‘A’ to ‘B’. The only conclusion which can be drawn from the site report is that the jeep came to the wrong side and hit the motor cycle. The motor cycle clearly was in the correct lane and on the correct side and therefore, by any stretch of imagination, it cannot be concluded that the motor cycle driver i.e. the deceased was also negligent. The finding of the learned Tribunal is therefore, contrary to the site report even on facts and therefore, cannot be affirmed.

¶40

(6 of 10) [CMA-2523/2007]

¶41

Further, as held in the cases of Sushila Vs. Mohan Singh; 2015 (2) RAR 564 (Raj.) and United India Insurance Vs. Sugni Devi; 2013 RAR 21 (Raj.) , in the matter of motor accident claims, the site plan cannot be held to be substantive piece of evidence for conclusion of contributory negligence.

¶42

Further, a perusal of the evidence as led by the parties makes it clear that no evidence regarding any contributory negligence of the deceased was led by the Insurance Company. Even while cross-examining the claimant witnesses, no suggestion whatsoever, to suggest that the deceased was also negligent has been put to them by the Insurance Company. Just a cursory plea in the reply regarding the negligence of the deceased has been taken but no evidence to prove the said averment has been led by the Insurance Company. Therefore, the finding of the learned Tribunal cannot be affirmed even on the count that there was no evidence available on record to suggest that the deceased was also negligent.

¶43

In Mangla Ram Vs. Oriental Insurance Company; 2018 ACJ 1300 , while dealing with a similar issue-whether the finding qua the contributory negligence can be reached only on the basis of the site map, the Hon’ble Apex Court specifically held as under :

¶44

"23. Be that as it may, the next question is whether the Tribunal was justified in concluding that the Appellant was also negligent and had contributed equally, which finding rests only on the site map (Exh. 2) indicating the spot where the motorcycle was lying after the accident? We find substance in the criticism of the Appellant that the spot where the motor vehicle was found lying after the accident cannot be the basis to assume that it was driven in or around that spot at the relevant time. It can be safely inferred that after the accident of this nature in which the Appellant suffered severe injuries necessitating amputation of his right leg

¶45

(7 of 10)

¶46

[CMA-2523/2007]

¶47

above the knee level, the motorcycle would be pushed forward after the collision and being hit by a high speeding jeep. Neither the Tribunal nor the High Court has found that the spot noted in the site map, one foot wrong side on the middle of the road was the spot where the accident actually occurred. However, the finding is that as per the site map, the motorcycle was found lying at that spot. That cannot be the basis to assume that the Appellant was driving the motorcycle on the wrong side of the road at the relevant time. Further, the Respondents did not produce any contra evidence to indicate that the motorcycle was being driven on the wrong side of the road at the time when the offending vehicle dashed it. In this view of the matter, the finding of the Tribunal that the Appellant contributed to the occurrence of the accident by driving the motorcycle on the wrong side of the road, is manifestly wrong and cannot be sustained. The High Court has not expressed any opinion on this issue, having already answered the issue about the non-involvement of the offending vehicle in favour of Respondent Nos. 2 & 3.

¶48

24. In other words, we are inclined to hold that there is no title of evidence about the motorcycle being driven negligently by the Appellant at the time of accident. The Respondents did not produce any such evidence. That fact, therefore, cannot be assumed. Resultantly, the argument of the Respondents that the Appellant did not possess a valid motorcycle driving licence at the time of accident, will be of no significance. Thus, we hold that there is no legal evidence to answer the issue of contributory negligence against the Appellant."

¶49

In view of above observations of the Hon’ble Apex Court also, it can be safely concluded that the factum of contributory negligence cannot be based solely on the site map in absence of any evidence being led by the respondents and further that the deceased was not having a valid driving licence at the time of accident will be of no significance. The said principle has also been reiterated in the case of Shanti Lal Vs. Ramesh Chandra; 2019 (4) DNJ (Raj.) 1597 , wherein it has been held that merely because the rider of the motor cycle was not having a valid driving

¶50

(8 of 10)

¶51

[CMA-2523/2007]

¶52

licence, the same cannot be a ground to saddle any contributory negligence or liability.

¶53

In the overall analysis of the facts of the present case and the precedential law, this Court is of the specific opinion that the finding of the learned Tribunal holding the deceased also to be negligent for the accident and thereby deducting 30% of the award amount qua contributory negligence cannot be affirmed and the same is hereby set aside.

¶54

So far as the quantum of compensation is concerned, the learned Tribunal has declined to grant any compensation qua future prospects on the ground that the witness has made false statements and no evidence qua future prospects has been led. In the specific opinion of this court, the consideration of the income qua future prospects is not on the basis of the evidence being led qua the said issue but is an essential corollary while computing the income of a deceased. The compensation qua future prospects is a natural consequence based on the rationale that a person who is self-employed is bound to garner his resources and raise his income for a better living. Further, computation of compensation keeping into consideration, the future prospects is a mandate and not a discretion. In National Insurance Co. Ltd. Vs. Pranay

¶55

Sethi; 2017 ACJ 2700 (SC) , the Constitution Bench while deciding on the issue of future prospects devised a fixed standard for granting future prospects and held as under :

¶56

“ Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40 per cent of the established income of the deceased towards future prospects where the deceased was below 40 years and an addition of 25 per cent where the

¶57

(9 of 10)

¶58

[CMA-2523/2007]

¶59

deceased was between the age of 40 and 50 years would be reasonable.”

¶60

In view of the ratio as laid down in Pranay Sethi’s case, denial of compensation qua future prospects by the learned Tribunal is also held to be bad and the finding qua the said issue is also set aside.

¶61

So far as the computation of the income is concerned, the learned Tribunal has computed the same to be Rs.1,800/- per month on the basis of the statements of PW2 Bhunda Ram who has deposed that the deceased was earning Rs.50-60 per day as he was a construction labour. The said finding of the learned Tribunal cannot be interfered with being based on the evidence available on record and the same is affirmed.

¶62

In view of above observations, the award requires recomputation in light of judgments of the Hon’ble Apex Court in the cases of Somwati and Pranay Sethi (supra) .

¶63

For future prospects :
Income per month Rs.1800
Future prospects Rs.720
(40% of income)
Total Rs.2520
Deduction Rs.504
(more than 6 dependents)
Income per month Rs.2016
Income per annum Rs.24,192

¶64

The age of the deceased was 30 years, therefore, a multiplier of 17 will be applied.

¶65

(10 of 10) [CMA-2523/2007]

¶66

(I) Compensation due to 24,192 X 17 Rs.4,11,264/death (Loss of dependency) (II) Loss of Estate 15,000 Rs.15,000/(III)Loss of spousal consortium 40,000 Rs.40,000/(IV)Loss of parental consortium 40,000x5 Rs.2,00,000/to each of the 5 children (V)Loss of consortium to parents 40,000x2 Rs.80,000/(VI) Funeral Expenses 15,000 Rs.15,000/-

¶67

Rs.7,61,264/-

¶68

Total

¶69

Amount awarded by learned Tribunal vide award dated 06.09.2007

¶70

06.09.2007 Rs.2,14,550/Enhanced amount Rs.5,46,714/-

¶71

Round off

¶72

Rs.5,47,000/-

¶73

Accordingly, the appeal is partly allowed. In view of the recomputation of the award done, the respondents are directed to pay an enhanced amount of Rs.5,47,000/- to the appellantsclaimants in addition to award already awarded by the learned Tribunal within a period of two months from today. The said enhanced amount shall carry an interest @6% per annum from the date of filing of the claim petition.

¶74

The appeal is disposed of in the above terms.

¶75

The stay petition also stands disposed of.

¶76

The record of the learned Tribunal be sent back forthwith.

¶77

(REKHA BORANA),J

¶78

70-Sachin/Abhishek/vij/-

Suresh Devi and Ors. v. Pukh Raj @ Pukh Ram and Ors.

Case brief

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Suresh Devi and Ors. v. Pukh Raj @ Pukh Ram and Ors.

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