1 S.B.CIVIL MISC. APPEAL NO.623/1998. Mst.Bhagwati Devi & Ors. VS Deshram & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL MISC. APPEAL NO.623/1998. Mst.Bhagwati Devi and Others. VERSUS Deshram and Others. 13.11.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.Sunil Kumar Saini on behalf of Mr.Inder Raj Saini, for the appellants. Mr.Tripurari Sharma] Mr.Sriram Yadav ] for the respondents. ***** Heard learned counsel for the parties and perused the award as well as the record the learned Tribunal. In the instant case, the appeal has been preferred by the claimants who are dependents of the deceased Ramjilal who died in a road accident on 15.07.1993. The deceased Ramjilal was aged 40 years at the time of accident as per the finding of the learned Tribunal and was employed with the Khetri Copper Project having a monthly salary of Rs.3,478.13p as per the pay-slip (Exhibit-7). The learned Tribunal came to the conclusion that it was a case of contributory negligence and on that account deducted 50% of the amount computed. The learned Tribunal had computed an amount of Rs.3,50,000/- and reduced the same by half i.e. Rs.1,75,000/- for being paid to the claimants/ appellants. In arriving at the aforesaid figure, the 2 S.B.CIVIL MISC. APPEAL NO.623/1998. Mst.Bhagwati Devi & Ors. VS Deshram & Ors. learned Tribunal took the income of the deceased as Rs.2,800/- and out of which deducted an amount of Rs.1,000/- towards personal expenses. Accordingly, the learned Tribunal took the monthly contribution made by the deceased towards the family as Rs.1,800/- X 12 X 16 (multiplier for a person aged 40 years) = Rs.3,45,600/-. In addition to the aforesaid, the learned Tribunal awarded an amount of Rs.4,400/- as incidental charges. Thus, the total comes to Rs.3,50,000/-. Learned counsel for the appellants submitted that the learned Tribunal had committed an error in giving a finding of contributory negligence on the part of the deceased. He submits that the deceased was on a motorcycle and even if it is assumed for the sake of argument that the deceased was negligent and contributed to the accident with the on coming vehicle which was a TATA 407 Truck, the said vehicle had a greater responsibility for avoiding the accident. He submits that it has come on record that the truck was being driven at a speed of 70 KMs per hour on a narrow village road. He, therefore, submits that the deduction on account of contributory negligence to the extent of 50% in the facts and circumstances is excessive and the same ought to have been reduced, if at all, by only 25% on the ground of contributory negligence. Learned counsel for the appellant further submits that the learned Tribunal has committed an error in not taking into account while assessing the income of the deceased, the deductions which were made by the 3 S.B.CIVIL MISC. APPEAL NO.623/1998. Mst.Bhagwati Devi & Ors. VS Deshram & Ors. deceased towards contribution of provident fund, etc., out of the amount of Rs.3,478.13p and taking the income as only Rs.2,800/- per month. He submits that while computing the loss of income to the family, the deductions which the deceased was making as contribution for the family towards their welfare ought to have been credited towards the contribution to the family and dependency should have been arrived at on the basis of gross income. Learned counsel further submitted that the learned Tribunal has erred in not awarding the loss of consortium, love and affection, funeral expenses, etc. I have heard learned counsel for the parties and perused the record. The contention of the learned counsel for the appellants is that even in the case of contributory negligence the learned Tribunal ought to have apportioned the liability having regard to the size and speed of two vehicles and the amount of caution which both the drivers were required to take more particularly in view of the fact that the accident involves a motorcycle and a truck and learned Tribunal ought to have taken into consideration the principle that heavier the vehicle, the greater the amount of care is required to be taken. In the facts and circumstances which have come in evidence that the Truck of the respondent No.2 was being driven at a speed of about 70 Kms per hour by the driver respondent No.1 at the time of accident on a narrow 4 S.B.CIVIL MISC. APPEAL NO.623/1998. Mst.Bhagwati Devi & Ors. VS Deshram & Ors. road in the village. The negligence on the part of the heavier vehicle, the offending Truck, in my opinion is much greater and even if the deduction on amount of the contributory negligence was to be made, the same ought to have been made of 25% as against 50%, as held by the learned Tribunal. Looking to the fact that the respondents vehicle was the heavier vehicle it required greater care by its driver as compared to the driver of the motorcycle. At the same time, I am in agreement with learned counsel for the appellant that the learned Tribunal has erred in not giving credit for the amount of deductions while computing contribution to the deceased towards his family. If an amount of Rs.1,000/- has been deducted towards personal expenses, the same ought to have been deducted from Rs.3,478.13p – rounded up Rs.3,500/- which was the gross salary as per pay-slip (Exhibit-7) which would make the contribution towards his family as Rs.2,500/-, as against Rs.1,800/-, as held by the learned Tribunal. Accordingly, the compensation on account of the loss of income is assessed as follows:- Rs.2,500/- X 12 X 16 = Rs.4,80,000/-. From the award, I find that the learned Tribunal has not awarded any compensation on account of loss of consortium; and love and affection. Accordingly, in the facts and circumstances of the case, I am inclined to award an amount of Rs.10,000/- to the appellant No.1, widow of the deceased, towards loss of 5 S.B.CIVIL MISC. APPEAL NO.623/1998. Mst.Bhagwati Devi & Ors. VS Deshram & Ors. consortium. So far as the children of the deceased appellants No.2 to 4 are concerned, they would be entitled to an amount of Rs.5,000/- each towards loss of love and affection. Accordingly, the appellants are entitled under this head to an amount of Rs.10,000/- + Rs.15,000/- = Rs.25,000/-. So far as the funeral expenses are concerned, I find that the learned Tribunal has awarded a sum of Rs.4,400/- towards incidental charges which in the facts and circumstances would be adequate. Thus, the total compensation is assessed as under:- Rs.4,80,000/- Add- Rs. 25,000/- (Loss of consortium; & love & affection) -------------------- Rs.5,05,000/- Less- Rs.1,26,250/- (25% of contributory negligence) -------------------- Rs.3,78,750/- Less- Rs.1,75,000/- (Already paid under the award) -------------------- Total Rs.2,03,750/- In the facts and circumstance, the appeal stands allowed. The appellants shall be entitled to an additional amount of Rs.2,03,750/- with interest @ 6% w.e.f. the date of filing of the appeal i.e. 13.05.1998 upto the date of realization. This amount shall be paid by means of a demand draft in favour of the claimants before the learned Tribunal. There shall be no order as to costs. (DALIP SINGH),J. Solanki DS, Jr.P.A.