IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO.No. 269/2004. Date of Decision :7th May, 2008. Smt.Lagani Devi. …Appellant. Versus: Bansi Lal and another. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for judgment?1 For the appellant: Mr. Romesh Verma, Advocate. . For Respondent. Mr.B.B.Vaid, Advocate. Sanjay Karol, J. Arguments re-heard. The present appeal arises out of the award dated 6th May, 2004 passed by Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr titled as Smt.Lagani Devi Vs. Bansi Lal and another dismissing the claimant’s petition filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act). The appellant’s son Harish Dharma, while driving Motor Cycle No.HPS-8809 on the National Highway No.22 at about 7 P.M. met with an accident with vehicle No.HP-28-0397 near the Nirsu Dutt Nagar, Tehsil Rampur, District Shimla, H.P. Harish Dharma died on the spot and Rajesh Kumar (PW-4) the pillion rider sustained injuries and after falling on the road became unconscious. Heaving the sound of the accident the nearby villagers came and arranged for medical 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 assistance. The matter was reported to the Police and a criminal investigation was initiated against the respondents. PW-4 regained consciousness in the hospital and the deceased was cremated. The appellant being the mother of the deceased as claimant filed the claim petition seeking compensation of Rs.10 lakh. The vehicle was not insured and in defence the respondents took the stand that the accident took place due to rash and negligent driving of the motor cycle by the deceased. Therefore nothing was payable to the claimant. Based on the pleadings of the parties, the trial Court framed the following issues: 1. Whether the deceased died due to rash and negligent driving of vehicle having registration No.28-0397 ?. …OPP. 2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled and against whom …OPP. 3.Whether the claim petition is not maintainable and deceased died due to his own negligence as alleged, if so its effect?. ..OPP. 4.Whether the petitioner is estopped by his own act and conduct to file the present petition ?. …OPR-1. 5.Relief. In support of its case, the claimant examined herself as PW-1,Jia Lal (PW-2), resident of the area of the place of occurrence of accident, Dev Raj (PW-3) and Rajesh Kumar (PW-4) pillion rider. The respondents in order to prove its case examined Sh. Bansi Lal (RW-1) and Sh.Balbir Chauhan (RW- 3 2),(he was the Cleaner of the truck at the relevant time) and Head Constable Shri Chaman Lal (RW-3), who had investigated F.I.R.No 197/2001 in relation to the same accident. Based on the material on record, the court below dismissed the claimant’s petition on the ground that it was the deceased himself who had been negligent in driving the motor cycle and the accident occurred due to his negligence. Therefore on the basis of contributory negligence no compensation could be awarded. I have heard learned counsel for the parties and also perused the record. PW-1 and PW-4 have proved that the deceased was 23 years of age and was studying M.Com. through H.P. University, Shimla In Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and others, 2002 ACJ 1720, the apex Court had held as under: “9 Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendant’s negligence is decided. The standard of reasonable man is as relevant in the case of plaintiff’s contributory negligence as in the case of defendant’s negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following 4 observation of the High Court of Austrlia in Astley v. Austrust Ltd., (1999) 73 ALJR 403, is worthy of quoting: “A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff’s share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is only one of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.” 10. It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does 5 not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling v. Cooper, (1931) AC 1 at page 9, Lord Hailsham said: “Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence; the plaintiff has no right to complain of in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances” (Emphasis supplied) Keeping in view the ratio of law laid down by the Apex court, the testimonies needs to be examined. PW-1, PW-2 and PW-3 have not witnessed the occurrence of the accident. Therefore, in order to ascertain negligence of the deceased the sworn testimonies of PW-4, RW-1 and RW-2 needs to be examined. According to PW-4 the accident took place on 29th December, 2001 when it was dark. He has recognized the offending truck being driven by respondent-Bansi Lal. He deposed that respondent No.1 was driving the vehicle, which had only one light, in a zig-zag manner. The truck collided with the motor cycle as a result of which he sustained injuries and became unconsciousness and the deceased died at the spot. The vehicle was being driven by the driver of the truck on the wrong side and the accident occurred due to his 6 negligence. In cross-examination, he specifically denied the suggestion put to him that the motor cycle was being driven in a rash and negligent manner. In spite of the extensive cross-examination, nothing could be extracted to prove and establish that it was the deceased who was negligent in driving the motor cycle and that the accident occurred for that reason. RW-1, no doubt, has deposed that the accident took place at a spot where there was a width of the road was about 30-40 feet and the accident occurred due to the rash and negligent driving of the motor cyclist and RW-2 has corroborated this version of RW-1. But, however, both the respondents’ witnesses have contradicted themselves. The respondent No.2 has denied the fact that immediately after the accident both he and RW-1 had fled away from the spot, which fact categorically stood admitted by RW-1. Further, both these witnesses have admitted that the vehicle was having a mechanical problem and had to be driven in a zig- zag manner. The vehicle was being driven at night. PW-4 has deposed that the vehicle was having one light. The respondents’ witnesses have also contradicted in giving description of the place of occurrence of the accident. According to RW-2 the road was levelled but as per RW-1 there was gradient and the vehicle was coming uphill. Admittedly, the deceased and the injured were not taken to the hospital by the respondents. The injured regained 7 consciousness after few days of hospitalization and treatment. Sh. Chaman Lal (RW-3) who carried the investigation has deposed that at the time of the investigation, he had not seen RW-1 and RW-2 at the spot as they had fled away from the scene of occurrence. According to him, the truck was parked on the wrong side and the motor cycle was also lying flat on the wrong side. This also proves that the vehicle was being driven by the respondent No.1 in a rash and negligent manner. The witness has proved that the respondent- driver had been negligent in driving the vehicle at the time of accident. He had been driving the vehicle with one head light in a zig-zag manner and on the wrong side of the road. The contributory negligence as alleged has not been proved at all. Except for the self serving statement of the respondent that the deceased was driving the motor cycle in a rash and negligent manner there is nothing to prove the same. Even their statements are vague and unspecific. What was the speed of the motor cycle and on which side of the road was the same being driven has not been stated? In my view, the court below has seriously erred in dis-believing the version of Rajesh Kumar (PW-4) while arriving at its conclusion that the post mortem report was not produced by the claimant to wriggle out the charge of drunkenness of the deceased. The same is not even borne out from the record. The court has decided the matter on the 8 basis of conjectures. The statement of PW-4 is clear, consistent, cogent, reliable and trust worthy. Keeping in view the totality of the circumstances, it is quite evident that the respondents have been negligent in driving the truck at the relevant time and it cannot be said that the deceased died due to his own negligence. The deceased was 23 years of age at the time of the accident. He was a student of M.Com. and studying in H.P. University ,Shimla. He was un-married and died due to the accident. The deceased had also successfully completed his diploma in Computer course from NIIT, Saproon Solan. PW-1, no doubt, has stated that her son was taking private tuition and earning Rs.5,000/- per month. But, however, in her cross-examination she has also admitted that she occasionally used to send money for his expenses and even the deceased occasionally used to send some amount to her. It cannot be said that there is cogent material on record to show the exact income of the deceased. In this background, the annual income of the deceased has to be worked on the basis of guess work. The Government fixed the income of daily waged employee to be Rs.100/- per day which comes to Rs.3,000/- per month and Rs.36,000/- per annum. The deceased was studying M.Com and also taking tuition. His income in any case had to be more than that of the daily wager. Therefore, the same can be fixed at the minimum amount which he would have been 9 earning. The deceased would have been spending at last 1/2 of this amount on himself. Therefore, the dependency would be 1/2 of the said amount. I may record that the notional income has been assessed on the lower side though the deceased had a potential of having a higher earnings. He was a graduate, studying M.Com. and had obtained diploma in Computer. The dependency of the claimant is assessed to be Rs.1,500x12= Rs.18,000 per annum. The claimant, on the date of the accident was 49 years old, in my view, the multiplier of 13 can be safely applied while determining the exact amount of compensation payable to the claimant. The claimant, therefore, shall be entitled to a sum of Rs.2,34,000/- (Rs.1500x12=Rs.18,000x13=Rs.2,34,000) The claimant shall also be entitled to interest from the date of the petition at the rate of 6% per annum till the receipt of the entire payment. The claimant shall also be entitled conventional charges quantified at Rs.25,000/- on all counts. The award dated 6th May, 2004 is set aside and the appeal is accordingly allowed. (Sanjay Karol), Judge. May 7, 2008(R) 10