1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Satya Dev Gupta and Anr. Vs. Abdul Raseed and Anr. S.B. CIVIL MISC. APPEAL NO. 207/1997 against the judgment and Award dated 18.12.1996 passed by the learned Judge, Motor Accident Claims Tribunal, Rajsamand in Civil Misc. Case No.106/1990. DATE OF JUDGMENT :: 30.4.2008 PRESENT HON'BLE MR. BHANWAROO KHAN,J. Mr. Dilip Kawadia, for the appellant. Mr. Dhanpat Choudhary on behalf of Mr. B.S. Rajpurohit, for the respondents. BY THE COURT : The appellants, who are father and mother of deceased Naresh Gupta, who while driving the scooter on 22.10.1989 at about 7.00 p.m. On Kankroli State Highway met an accident and collided with Truck No.RJY-4223 which was parked by the side of the road, at once started moving 2. reverse and collided with the scooter. The accident so happened resulted in death of scooter driver Naresh Gupta. The claimants filed a claim petition before the Motor Accident Claims Tribunal, Rajsamand, who vide judgment dated 18.12.1996 treating the joint and contributory negligence of both parties determine the claim of Rs.75,000/- in favour of the appellants, against which the appeal has been preferred for enhancement of the claim amount. The respondent No.2 Insurance Company submitted a reply with the averments that because of breach of the conditions as provided in the policy, they are not liable to pay compensation as scooter driver was not having driving licence. The Tribunal framed three issues. On behalf of the claimants, three witnesses were examined. No one was produced on behalf of the respondents. The Tribunal after evaluating and analysing the evidence, documentary as well as oral, decided the claim petition in favour of the appellants as aforesaid. Both the parties were heard and the file was gone through. 3. Learned counsel for the appellant pleaded that the Tribunal has not decided correctly the monthly income of the deceased and looking to the age of the dependents i.e. mother and father, the proper multiplier was not given and only lump-sum amount of Rs.1,25,000/- was decided, which is against the evidence produced and also against the statutory provision provided in Second Schedule under Section 163-A of the Act. Moreso, from the evidence tendered, it cannot be inferred that there was any negligence on the part of the deceased because the truck was parked on the road itself without having any back light on and it started running reverse without any warning. The deceased while driving the scooter with a speed of 20-25 kms. per hour collided with the truck which was without back parking light, which started moving reverse without warning. There was dark and it was impossible for the deceased to see the truck. In such circumstances, the entire responsibility was of the truck driver and not of deceased. The total claim should have been given as decided by the Tribunal but holding 50% liable for negligence, the Tribunal awarded only 50% claim which is against the oral as well as 4. documentary evidence. Further learned counsel for the appellants argued that there is no provision by which consolidate amount of interest can be awarded. The Tribunal has committed illegality by giving consolidate amount of interest on the claim due. The interest should have been allowed to the appellants on the claim amount at the prevailing rate of interest as per law. Learned counsel for the respondent supported the judgment delivered by the Tribunal and pleaded that as per site-memo prepared by the Investigating Officer after the First Information Report, reveals that the truck was parked half below the road and half on the road, which is a National Highway. The scooter driver himself has seen the truck parked on the road, but with his own negligence having high speed collided with parked truck and succumbed to the injury received. The truck was stationary and never moved. It was after thought and just to fasten the liability of the truck, a theory of moving reverse was created. It was stated that the truck moved reverse without any warning whereas from the evidence itself it is 5. found that truck was parked stationary and it was scooter driver, who collided with the truck. The joint and contributory negligence was wrongly fixed on the truck. Hence, the total liability should have been on the Insurance Company and not on the truck driver. Learned counsel for the Insurance Company pleaded that the award given is rational and justifiable. From the evidence of AW-2 Mishri Lal, who was pillion-rider on the scooter at the relevant time has admitted in cross-examination that from the distance of 5-7 fts. he could see the parked truck moving reverse. The scooter was being driven at speed of 20-25 kms. per hour. The accident occurred in the month of October at about sun-set. The visibility in the month of October at about sun-set remains for an ordinary man at about 20-25 fts. and with a speed of 20-25 km. a scooter driver if vigilant can very well stop his scooter. The truck as per site-memo (Ex.-1) was parked half on the road and half below the road, covering a distance of 3 fts. of the road and rest of the road was available for traffic. It is true that the truck was not having back parking light so this failure on the part of the driver also speaks 6. about the negligence of the driver in maintaining the truck. Though the truck was properly parked but at the same time it was duty of the driver to have switched on the parking light. Had there been so the scooter driver would have avoided the accident but at the same time he also while driving the scooter did not take proper care and failed to maintain the precaution required and thereby he also committed the negligence. The Tribunal has rightly arrived at the conclusion of contributory and joint negligence of deceased and truck driver on the basis of evidence on record and while doing so it has committed not any illegality. On behalf of the claimant, deceased was 25 years of age, a certificate of salary of Rs.1650/- per month was submitted. Of-course, additional earning amount of Rs.500/- was also alleged, but the same has not been found to be proved. The monthly salary of Rs.1650/- after deducting 1/3rd of personal expenses of deceased comes out to be Rs.1100/-. The dependency of the mother and father looking to their age which is more than 50 years and below 55 years, the multiplier of 11 years as per Schedule if gives 7. the total claim comes out to be Rs.1,45,200/-. Besides this, the love loss of the parents which is quantified as Rs.5000/-. The total claim comes out to be Rs.1,50,200/-, out of which 50% can be given to the claimants because of contributory negligence of the deceased. The love loss amount of Rs.25,000/-as decided by the Tribunal is in higher side which has been quantified Rs.5000/- as aforesaid. So in all total compensation comes out to be Rs.1,50,200/-, 50% of which becomes Rs.75,100/-. The claimants-appellants are entitled for thes aid amount. The consolidate amount of interest of Rs.25,000/- as decided by the Tribunal is against the statutory provisions. There is no such provision by which consolidate amount of interest can be fixed. There must be rate of interest. The payment of interest is burdened only to ask for early payment of the due amount and if consolidate amount is fixed then it would be desired and sweet will of the party to fix the time of payment. There would be no pressure for early payment. Therefore, instead of consolidate amount of interest only rate of interest is to be fixed which would be continued till the final payment is 8. made. Hence, the appellants are entitled the rate of interest on the due amount which is fixed as decided by the Tribunal to be 12% p.a. Resultantly, the appeal filed by the appellants is partly allowed and the awarded claim of Rs.75,100/- is decided in favour of the appellants and against the respondents. The appellants are entitled to receive interest @ 12% p.a. on the due amount from the date of filing of the claim petition till realisation. (BHANWAROO KHAN) J. RM/