IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 43 of 2004 Reserved on : 26th August, 2008 Date of Decision: 4th September, 2008 Prem Lata Dutta and another Appellants Versus Ajay Kumar Rana and others Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.Ajay Sharma, Advocate. For respondents No. 1 &2: Mr.Jagdish Thakur, Advocate, vice Mr. N.K.Thakur, Advocate. For respondent No.3 : Dr. Lalit Sharma, Advocate. Sanjay Karol, J. Claimants have filed the present appeal against the award dated 1st November, 2003 passed by Motor Accident Claims Tribunal, Una, in MAC Petition No. 8/2001, titled as Smt. Prem Lata Dutta and another vs. Ajay Kumar Rana and others. Claimants Smt. Prem Lata Dutta and Shri Santokh Singh are the parents of deceased Shri Anil Dutta. On 1.11.2001 Shri Anil Dutta and Shri Santokh Singh, claimant No.2 were travelling on Scooter No. HP-20- 6970 from Una to Haroli when Scooter No. HP-20-9907 being driven by Shri Ajay Kumar Rana – respondent No.1 herein came from behind and after Whether the reporters of Local Papers are allowed to see the Judgment? 2 overtaking, without any signal suddenly turned to the extreme left side of the road as a result of which the scooter being driven by Shri Anil Dutta collided with the scooter of Shri Ajay Kumar Rana and in the said accident Shri Anil Dutta sustained injuries and died after some time. The claimants filed Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) claiming compensation of a sum of Rs.10 lacs. In the Claim Petition, it was specifically averred that respondent No.2 Shri Desh Raj Rana father of respondent No.1 being an influential person, under pressure got a false FIR registered against the deceased Shri Anil Dutta for having driven the scooter in a rash and negligent manner. The Scooter was insured and by a separate written statement the Insurance Company also opposed the claim petition. Based on the pleadings of the parties the Tribunal framed the following issues:- 1. Whether Anil Dutta, the deceased, died because of rash and negligent driving of scooter No. HP-20-9907? OPP 2. Whether the petition is incomplete, vague and does not disclose any cause of action? OPR 3 3. Whether the driver of the scooter in question was not holding a valid driving licence at the time of accident, if so its effect? OPR-3 4. Whether the claim petition has been filed in contravention of the provisions of Motor Vehicle Act as alleged, if so its effect? OPR-3 5. Whether the petition is collusive, if so its effect? OPR-3 6. Whether the petition is not maintainable? OPR 1&2. 3 7. Whether the respondents No.1 & 2 have been impleaded unnecessarily as parties in the petition? OPR 1& 2. 8. Whether the petitioners are entitled to compensation, if so against whom and how much? OP Parties. 9. Whether the deceased had himself contributed towards the accident by his own negligence, if so its effect? OPR 1 &2. 10. Relief.” Appreciating the material on record, the Tribunal held that the deceased Shri Anit Dutta was equally negligent and contributed to the accident and that respondent No.1 alone was not responsible for the same. Fifty percent negligence was attributed to deceased Shri Anit Dutta. On merits, the Tribunal found that as on the date of the accident the deceased was 22 years, he was self-employed and was working as a government contractor and also as an agent of Life Insurance Corporation. The income of the deceased was taken to be Rs.3000/- per month, out of which 1/3rd was deducted as an expense incurred by the deceased on himself and the remaining 2/3rd was taken as contribution made towards his parents. Taking Rs.24,000/- (Rs.2000 x 12) as the annual contribution of the deceased and keeping in view the age of the claimants by applying the multiplier of ‘11’ a total compensation of Rs.2,64,000/- was determined. Since the deceased was found to be negligent to the extent of 50%, therefore, in all the claimants were awarded Rs.1,37,000/- alongwith interest @ 9% per annum. Rs.10,000/- was separately awarded as conventional amount. Since the vehicle was insured, therefore, the Insurance Company was held liable to pay the awarded amount. 4 The present appeal has been filed by the claimants seeking enhancement of compensation and also challenging the findings on Issue No.1 with regard to contributory negligence. No appeal has been filed by any of the respondents including the Insurance Company. Mr. Ajay Sharma, learned counsel for the appellants-claimants has assailed the impugned award on the ground that the same is based on surmises and conjectures and is contrary to the record. Mr. Jagdish Thakur, learned counsel appearing for respondents No.1 and 2 has supported the award for the reasons set out therein. Dr. Lalit Sharma, learned counsel for respondent No.3, however, has strongly urged that keeping in view the ratio of law laid down by the Apex Court in Donat Lousi Machado and others vs. Ravindra and others, (1998) 8 SCC 633 and this Court in Oriental Insurance Company Limited vs. M.A.C.T. Kangra and others, Latest HLJ 2007 (HP) 1311, the findings of the Tribunal that the deceased was spending only 1/3rd of his income on himself has to be corrected for the same being the amount which was actually being spent by the deceased for the upkeep of his parents. I have heard the learned counsel for the parties and also perused the record. The Tribunal below has held that it was a case of composite negligence and the deceased Shri Anil Dutta was negligent upto 50%. Perusal of the award would show that the said finding is not borne out from the evidence (oral and documentary) produced by the parties on record. The claimants examined five witnesses, namely, Dr.Pujan Jaswal (PW-1), Shri Ramesh Chand (PW-2), Shri Rakesh Kumar (PW-3), Shri Karnail Singh (PW-4), Shri Santokh Singh (PW-5) and respondent No.1 has examined himself as RW-1. 5 PW-4 has placed on record copy of FIR No.34 dated 11.1.2001 under Sections 279, 304-A, IPC (Ext.P6). PW-5 has categorically deposed that on 11.1.2001 he was going to Haroli alongwith his deceased son who was driving the scooter. At about 11 a.m. when they had reached a place known as Jhalera near Shiv Mandir, scooter bearing No. HP-20-9907 came from behind at a high speed and after overtaking without any signal all of a sudden turned to the extreme left towards the link road as a result of which their scooter collided and both the riders fell on the road and sustained injuries. His son Anil Dutta suffered injury on his head and other parts of the body and was rushed to the hospital, in a vehicle belonging to Veterinary Hospital, from where he was referred to PGI Hospital, Chandigarh, but, however, he died on the way. He was brought back and his post-mortem was got done. In the meanwhile, respondent No.2 being politically influential, in collusion with the police officials manipulated the registration of a false case. After registration, the police never made any enquiries from him. As against this evidence, respondent No.1 examined himself and deposed that he was travelling in his scooter from Una to Badhera and when he reached near the temple at Jhalera he stopped his scooter to meet his newspaper hawker. Immediately thereafter, a scooterist who was coming from the back side hit him as a result of which both he and the scooterist alongwith pillion rider fell down on the road. The accident took place as the scooterist hit him from behind. He was shifted to the Hospital at Una and was also referred to PGI, Chandigarh. The police never interrogated him with regard to the accident. In cross-examination he admitted that temple and the abadi on the left side of the road are about 10-15 ft. below the road level and there is no abadi on the road side. He also admitted that the place where he had stopped the scooter, there is a road which goes towards the temple and 6 the abadi. He denied the suggestion that the accident occurred due to his fault as he suddenly turned left without any signal as he had wanted to take the road towards the temple. Importantly, he admitted that police came to the hospital after about 2 hours of the accident and only took his licence and did not record any statement. He has admitted that his father was President of the BJP Haroli block and the local MLA belonged to the political party which was in the government at that time. He also admitted that his mother was Pradhan of the village. He however, denied the suggestion that in order to save himself a false FIR was registered against the deceased. From his statement, it is evident that his parents were politically influential persons. It is also evident that the police did not interrogate him. I find that his statement cannot be taken to be true. He has contradicted the record. FIR Ext.P-6 records that same was got registered on the statement made by respondent No.1 whereas he has deposed that no statement was recorded. Further the version given in the FIR is totally different from the one deposed in the Court. In the FIR, it is so stated that in order to save himself from a bus which was coming from opposite direction he had to apply the brakes of his scooter as a result of which the scooter being driven by the deceased collided with his scooter. In the Court, however, he has given a totally different version. It is apparent that no investigation took place after the registration of the FIR as is evident from the statement of PW-4, according to whom the FIR was kept as untraced. The police ought to have investigated the matter thoroughly. PW-5 was witness to the incident. The possibility of the accused having exercised influence in getting a false FIR registered against deceased Shri Anil Dutta cannot be ruled out. The Tribunal has arrived at its conclusion only on the basis of the registration of the FIR against the deceased. In my view, this cannot be 7 the basis for determining contributory negligence, particularly when the matter was not investigated at all. Statement of PW-5 is clear and convincing and even in cross- examination nothing has come out which would render his version to be doubtful. Therefore, I am of the considered view that the Tribunal has seriously erred in holding the deceased to have contributed in the negligence of the accident, therefore, the findings of fact are reversed and it is held that the deceased had not contributed in the accident by his own negligence. The findings on Issue No.8 are reversed to that extent. It is proved on record that the Shri Anil Dutta died in an accident which is clear from post-mortem report Ext.P-1. On the question of income of the deceased and the dependency, PW-2 has proved the registration of the deceased as Class-D contractor in terms of registration letter Ext.P-2. He has deposed that in the year 1999-2000 the payment of Rs.41,487/- was made to the deceased for the work executed by him for the department. The aforesaid payment was made after deduction of Rs.1223/- and Rs.1087, as income tax and sales tax, respectively and also as Rs.5437/- as security deposit. In the year 2001-2002 works amounting to Rs.1,26,426/- was carried out by the deceased and after deductions payment of Rs.83,399/- was also made to him as per Ext.P-4. According to him, in due course the deceased would have become Class-A contractor. PW-5 has deposed that the deceased who was working as a government contractor with IPH department was also doing business as an agent of Life Insurance Corporation and was contributing Rs.10,000/- to the family. It has also come on record that as on the date of the accident the age of the claimant No.1, mother was 50 years and father was of 59 years. 8 As per certificate Ext.P-5 deceased earned a commission of Rs.3003.55 in the year 1998-99, Rs.6904.20 in the year 1999-2000 and Rs.760.40 paise in the year 2000-2001. It is thus proved on record that the deceased was self-employed and was having regular income. He was young man of 22 years, was enterprising and had a bright future, capacity and potential to increase his earnings manifold. The Tribunal below took into consideration the principles laid down by the Supreme Court in General Manager, Kerala State Road Transport Corporation vs. Mrs. Susamma Thomas and others, AIR 1994 SC 1631, Lata Wadhwa and others vs. State of Bihar and others, 2001 ACJ 1735 and U.P.State Transport Corporation vs. Trilok Chandra, 1996 ACJ 831, and considering the age and the work of the deceased determined the income of the deceased to be Rs.3000/- per month, which normally is that of a skilled worker. In my view, the very basis of arriving at such a conclusion is faulty. The deceased was a registered government contractor and having regular income. He was not a skilled worker employed by the government on daily wages. Considering the entire material on record, the income of the deceased can safely be fixed to be Rs.8100/- per month. Applying the principles of ratio of law laid down in Oriental Insurance Company Limited vs. M.A.C.T. Kangra and others (supra), 1/3rd of the said amount can be said to have been contributed by the deceased for the family towards his parents. Therefore, a sum of Rs.32,400/- (Rs.2700 x 12) is the amount which the deceased can be said to have been contributed to his family. The dependency is fixed as such. 9 The Tribunal below has applied the multiplier of ‘11’ while determining the compensation. This multiplier is on the higher side and keeping in view the age of the claimants, multiplier of ‘8’ can be said to be just and fair. Therefore, the claimants, in my considered view, would be entitled to Rs.2,59,200/- (Rs.32400 x 8) as compensation payable to them. The Tribunal has awarded a sum of Rs.10,000/- as conventional amount. The claimants shall also be entitled to that also. PW-5 has deposed that a sum of Rs.20,000/- was spent for performing the last rites and also expenses incurred for conveyance. After the accident the deceased was taken to the Hospital at Una and thereafter was being taken to PGI, Chandigarh, when on the way he succumbed to his injuries and was brought back to the District Hospital, Una, where the post- mortem was conducted. There is no cross-examination on this point and I see no reason that the claimants would falsely depose with regard to the same. Even in the absence of any documentary evidence with regard to actual expenses incurred for cremation/conveyance etc., I feel that a sum of Rs.20,000/- ought to be awarded for the same. Ordered accordingly. For the foregoing reason, the appeal is accepted. The award is modified to the aforesaid extent. It is ordered that the claimants shall also be entitled to interest as awarded by the Tribunal. September 4, 2008 (Sanjay Karol) (C) Judge.