IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 316 of 1997 VIJAY SINGH & ORS V/S BHANWAR SINGH & ORS Mr. DILIP KAWADIA, for the appellant / petitioner Mr. BS RAJPUROHIT & Ms. HEMLATA for Mr. CHAITANYA GEHLOT, for the respondent Date of Order : 18.5.2009 HON'BLE SHRI N P GUPTA,J. J U D G M E N T The claimants have filed the present appeal seeking enhancement of the compensation awarded by the learned Tribunal, being Motor Accident Claims Tribunal, Rajsamand, vide judgment dt. 30.1.1997, awarding a total amount of Rs. 66,290/- by way of compensation, on account of death of one Lal Singh, father of the appellants. The necessary facts are, that according to claim petition, on 5.3.1993 the deceased had gone to village Gunjol for some condolence, and at that time, between Kankroli and Nathdwara, near Nirmal Marble factory, the delinquent bus was being driven rashly and negligently, and hit the deceased on the National Highway, as a result of which he died on the spot. First Information Report No. 55/93 in this regard was registered. According to the claimants the deceased was 55 years of age, and was earning Rs. 2500/- per month from agricultural and dairy farming, out of which he was spending Rs. 300/- on himself, and balance amount was being paid to the family members, and he could have lived upto age of 80 years, and thus compensation has been claimed for another 25 years. Likewise, compensation has been claimed on other counts also. The claim was contested by the insurer by filing written statement, wherein it was pleaded, that since the insured did not inform about the accident, they do not admit the accident to have occurred by rash and negligent driving of the vehicle, on the relevant date, resulting into death of the deceased. The other defendants remained exparte. The learned trial court framed four issues, and as appears from the memo of issues, that the issues have been framed with total non application of mind, inasmuch as some blank proforma, that might be lying available with the Court, has been placed on the file, by filling in the blanks therein. Therefore, nothing much turns on the frame of the issues as such. 2 During trial the claimants examined the claimant Govind Singh himself, and produced one Prem Singh, claiming himself to be eye witness, and also produced the copy of the F.I.R., Post Mortem Report, Site Inspection Note, Site Plan, Insurance Cover, Driving License etc. The defendants did not lead any evidence in rebuttal. The learned trial court, purportedly deciding issue no. 1, assuming it to be regarding negligence, found, that the evidence of Prem Singh does not inspire confidence, and from the material on record it appears, that the deceased suddenly appeared on the road from behind city bus, as a result of which the accident occurred, and therefore, the deceased was also found to have contributed in the accident, to the extent of 30%, while the bus driver was held liable to the extent of 70%. Then, deciding issue no. 2 it was found, that in the post mortem report the age of the deceased is mentioned to be 65 years, and while in the claim petition it has been mentioned to be 55 years. Then, Prem Singh has deposed the age to be 60 years, and has deposed ignorance if the deceased were of 70 years. Then it is considered, that in the claim the income has been pleaded to be Rs. 2500/-, per month after deducting personal expenditure to the extent of Rs. 300/-, dependency has been claimed at Rs. 2200/-. Considering this, without giving any categoric finding about the age, so also about 3 the income of the deceased, and dependency, the consolidated amount of Rs. 40,000/- has been assessed as compensation for the loss of dependency, and loss to the estate. Then, a huge amount of Rs. 40,000/- has been assessed as compensation to the three claimants for the loss of love and affection. Then, Rs. 4000/- has been assessed for performance of last rites, and a consolidated amount of Rs. 10,000/- has been assessed by way of interest pendente-lite. Thus a total compensation awardable has been assessed at Rs. 94,700/-, and making deduction to the extent of 30%, for the contribution of the deceased in the accident, the claimants have been found entitled at Rs. 66,290/-, out of which after deducting the amount received by way of interim compensation, award for rest amount has been passed. Assailing the impugned judgment it is contended, firstly that there was no issue on the question of contributory negligence, therefore, the learned trial court could not have recorded the finding on the contributory negligence. It was submitted, that rather a look at the frame of issue no. 1 shows, that even the question of negligence was not in issue, rather only factum of accident was in issue, and therefore, there was no occasion for the learned trial court to record the finding in the manner recorded. Then, regarding issue no. 2, it was submitted, that the learned Tribunal was required to record a 4 categoric finding about the age of the deceased, income of the deceased, and to have selected appropriate multiplier, and to have applied it accordingly, and should have made calculations of the awardable compensation, instead of awarding lump sum amount, as awarded, under different heads. It was submitted, that the learned Tribunal was not distributing charities, or bounties, but was supposed to award, what the claimants were legally entitled to, and therefore, the impugned award is clearly bad. With this, it was submitted, that since the claimants have deposed, that the dependency of the claimants was to the extent of Rs. 2200/- per month, and since the deceased was 55 years of age, the appropriate multiplier of 8 to 10 was required to be employed, and accordingly the compensation was required to be assessed. The learned counsel for the insurer supported the impugned award. I have gone through the record, and have considered the submissions made by the learned counsel. At the outset I am constrained to observe, that the whole matter has been taken by the learned Tribunal in a wholly casual and perfunctory manner, inasmuch as a very solemn duty of framing issues, has been performed in its dereliction only, by simply putting on record a blank 5 proforma, filling in the blanks. I cannot resist myself from observing, that during my inspection of various courts, I have come across umpteen number of cases at different places, where this practice is rampant, and that the officer does not apply himself in the matter of framing issues, and such blank proformas are used for the purpose of placing on record, as issues, even without comprehending the controversy involved in the matter. This practice is required to be seriously deprecated, and is required to be stopped forthwith. A copy of this order, along with necessary instructions, are directed to be circulated to all the Motor Accident Claims Tribunal in the State, to forthwith stop this practice. Then, coming to the merits of the matter, obviously it is established law, that in order to get an award of compensation, it is obligatory on the part of the claimants to establish, that the accident was on account of negligence on the part of the defendant in driving the vehicle in question. In that view of the matter, the claimant was required to establish the negligence, and if from the material on record, the total negligence of the delinquent vehicle is not established, and if it appears, writ large, that the victim had contributed in the happening of accident, then simply on account of improper framing of issues, or even absence of issue, the Tribunal is not expected to shut its eyes towards this aspect of the 6 matter. With this background, coming to the evidence on record, strong reliance was placed on the evidence of A.W. 2 Prem Singh, who has figured as eyewitness. A.W. 2 Prem Singh has deposed, that at about 8 in the night he had gone from his tea stall to give tea in the marble factory. At that time a city bus came from towards Nathdwara, which stopped outside Nirmal Factory, wherefrom the deceased alighted, and came on the side of the road. At that time a Video Coach overtook city bus from behind, and hit the deceased. The deceased was run over by the driver side wheel of the bus, and died on the spot. He has also stated, that when the accident occurred, the deceased was not on the Pucka portion of the road, but was on the Kucha footpath. This is the whole statement in chief, deposed by Prem Singh. Then, in cross examination, he has admitted, that his statements were not recorded by the police, police did come on the spot, but he did not give them out to be an eye witness. Then, he has stated that Lal Singh alighted from the city bus and crossed the road from behind the bus. Then, he has denied the suggestion about the accident having occurred on Pucka portion of the road. He has also stated, that after the impact the “Dhar” portion of the body (lower limb) did not remain on road, nor did the legs remain on the road, rather the entire body fell on the heap of ballast lying on Kacha portion of the road. He has also stated, that Lal Singh took about one second in crossing the road. The bus had hit the back and foot of Lal Singh, 7 as a result of which Lal Singh fell on reverse side. He has also stated that another Lal Singh and Abhay Singh were also there, who also witnessed the incident. Likewise, there were 20-25 labourers, who were waiting on the gate, due to change in the shift. Then, I come to the evidence of Govind Singh, the claimant. He has stated that his father died in the accident, Hari Singh, who is his “Saga Ji” was with his father, who came home and informed about the incident. Then, he has stated that his father alighted at bus stand Gunjol, and was going on the road, and at that time another bus came and hit him, as a result of which he died on the spot. This is the entire oral evidence on record. Then, coming to the F.I.R., which is of not much assistance, as it only records that telephonic information was received about a pedestrian having been hit, and therefore, I.O. went on the spot, and found the things on the spot as have been noticed in the site plan. Then, I come to the site plan and site inspection note, which is Ex. 4. A look thereat shows, that the place of incident is Damar road highway, going from south to north, towards north is Rajsamand, and towards south is Nathdwara and Udaipur. The dead body is lying on the eastern side of the road, in the manner, that the upper portion upto back is lying on the road, while legs are lying on the footpath, and nearby is a heap of earth etc. The head is towards West while legs are towards east, and face is upside and bleeding. The blood is also lying on the Damar road to the 8 extent of 20 ft. from the dead body towards the west on the road, and the delinquent bus is standing at a distance of 20 ft., obviously towards the north. Reading of these three material, being statement of A.W.1, A.W. 2 and Ex.A-4, leaves no manner of doubt in my mind, that Prem Singh is not an eye witness, and he is simply projecting himself to be eye witness. Admittedly he was not examined by the police, and he even did not inform the police about his having seen the incident, apart from the fact, that what he stated is clearly contrary to the things as noticed in Ex.A-4. It is also relevant to notice, that even according to Govind Singh his relation Hari Singh was with the deceased, and it was that Hari Singh who informed about the accident, but for the reasons best known to the claimants, and not disclosed to the Court, this Hari Singh has not been examined. Thus it is clear, that despite reliable eye witness being available, has not been produced, and the Court is left to decide the matter only on the basis of things as appearing from Ex.A-4. If the things are considered from the stand point of Ex.A-4, as appears from the F.I.R. Ex.-2 that the accident occurred at about 8-8.15 in the evening of 5th of March, 1993. Obviously, by then the vehicles moving on the highway, do move with headlights on. As appears from the site plan, that the road, at the place of accident, is 9 straight. Then, even according to Govind Singh, the deceased had alighted at the bus stand, and had crossed the road, and while so crossing, the other bus came and hit him. This circumstance do make the Court to infer, that deceased suddenly emerged from behind the bus on the road, unmindful of the oncoming vehicles, moving on the National Highway-8, which were moving with headlights on, and in that process, the accident occurred. Much was argued by the learned counsel for the appellant, that the bus is available on the wrong side of the road, and the accident is also shown to have occurred on wrong side of the road. True it is, that it is so, but then, it is required to be comprehended, that when the deceased had alighted from the bus, obviously the delinquent bus was required to avail the remaining available passage of the road only, and in that process, the vehicle moving on the highway, in the night, cannot be expected to move measuring road, in millimeters, in the matter of leaving space for the stationary bus. It is also well nigh possible, that the bus driver might have taken care to provide sufficient space to the passengers, who might have alighted from the bus. Thus it cannot be said, that the deceased did not contribute in the accident. Of course, the bus driver was also negligent, inasmuch as in the head light beam he must have seen the deceased, and could have taken care to avoid the accident. It is in the 10 totality of circumstances, in my view, when the Tribunal has found the bus driver to be negligent to the extent of 70%, and the deceased to the extent of 30%, it cannot be said, that the finding requires any interference. Then, I come to the question of quantum. On this aspect again, I am constrained to observe, that the approach of the learned Tribunal, in assessing compensation is seriously deprecated, inasmuch as, Hon'ble the Supreme Court has repeatedly and consistently held, as to how the compensation is to be assessed, and still the learned Tribunal has proceeded to assess compensation, by computing on a lump sum basis, which cannot be sustained. But then, the matter does not end here, inasmuch as if on that count the matter were to be remanded, it would simply prolong the agony, and therefore, exercising powers under O. 41 Rule 24, I have examined the matter on record. So far as the age of the deceased is concerned, of course, the claimants have claimed the deceased to be of 55 years of age at the time of death. The incident occurred on 5.3.1993, and the claim petition has been filed on 26.3.1999, i.e. practically immediately after the accident, and in the claim petition Vijay Singh who claims to be the son of the deceased Lal Singh, has mentioned his age to be 11 47 years, it passes all comprehension, that a person at the age of 8 years would beget a son, and with this, the evidence of Govind Singh shows, that in examination in chief, he has reiterated that the age of the deceased was 55 years, and in cross examination has simply denied the age to be of 70 years. Likewise, so far as Prem Singh is concerned, he disowned his knowledge about the age, as he has stated in cross examination, that the deceased might be of 55 years, or may be 60 years, and he does not know even if he were 70 years. Then, in the post mortem report the doctor has mentioned the age to be 65 years. In my view, in the totality of circumstances, it cannot be said, that the age of the deceased was below 65 years. In any case the age of deceased must be somewhere above 65 years. Then, coming to the aspect of income, in that regard, the only evidence comprises of statement of Govind Singh A.W.1, who has deposed, that the income of deceased was about 2000-2500/- per month, and at the same time has stated, that it was income of all the family members collectively. All family members are living together. Then, he has also stated, in examination in chief itself, that the brothers take other lands for cultivation on share crop basis, and earn from that also, and they earn income as deposed above. He has also stated, that his father was 12 undertaking agricultural operation, and was also selling milk, as the family has three buffaloes, milk whereof was being transported to Udaipur. In cross-examination he has further maintained, that the income deposed was collective income of the family. In my view, the three brothers, as appears from the cause title of the claim, are adult grown up ones of the age of 47, 35 and 33 years respectively at the time of accident. In such circumstances, from the collective income, the contribution of the deceased cannot be assessed at any figure above 25% of the total income, which comes to roughly around Rs. 600/- per month, at the same time personal expenditure is also required to be deducted, and then, for the age group, to which the deceased belonged, even if the multiplier of 5 were to be employed, the loss sustained by the family on account of loss of income of the deceased, comes to a figure, far below Rs. 40,000/-. In that view of the matter, though for different reasons, no interference is required to be made, in the assessment of this amount of compensation. Then, the learned Tribunal has assessed another amount of Rs. 40,000/- on account of loss of love and affection, for which again there is no justification whatever, but then, in absence of any cross objection, on that ground, I am at handicap, in interfering in that part of the award. 13 Then, so far as the award of interest is concerned, out of the awarded amount a sum of Rs. 30,000/- and odd, has been deposited in 1995 itself. Then, for the remaining amount, if the interest were to be calculated at the rate of 6%, the amount payable would come practically to the same amount, as awarded by the learned Tribunal, and then, since the learned Tribunal has awarded the interest @ 12%, which I do not feel inclined to interfere in favour of the appellant, on that ground either. The net result is that I do not find any force in the appeal. The same is, therefore, dismissed. ( N P GUPTA ),J. /Sushil/ 14