IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No.241 of 2004 along with Cross Objections No. 282/2005 Reserved on: September 12, 2008 Date of Decision : October 1, 2008 Managing Director, HRTC and another …Appellants. Versus: Sito Devi and others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. N. K. Thakur, Advocate For respondent 1 & 3: Mr.Jagdish Thakur, Advocate, For respondents 4 & 5: Mr. B. B. Vaid, Advocate For respondent No.6 : Mr. B. M. Chauhan, Advocate SANJAY KAROL, JUDGE The present appeal arises out of an Award dated 26.4.2004 passed by the Motor Accidents Claims Tribunal, Hamirpur, H. P., whereby compensation amounting to Rs.3,65,000/- was awarded in favour of the claimants and the liability to pay the same was fastened in equal ratio upon the New India Assurance Co. Ltd., and the present appellants. The claimants being the wife, mother and minor daughters of the deceased Shri Rakesh Kumar filed a claim petition under Section 166 of the Motor Vehicles Act (hereinafter 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 referred to as ‘the Act’) alleging that on 10.12.2000, deceased Shri Rakesh Kumar was travelling as pillion rider on Scooter bearing No. HP-2-2016, being driven by Shri Sunil Kumar, respondent No.4 herein and owned by Shri Anant Ram Kaundal, respondent No.5 herein. When they reached near a place called Bassi, District Hamirpur, on seeing the bus coming from the opposite side, respondent No.4, who was driving the Scooter in a rash and negligent manner lost control and the Scooter fell down causing injuries on the head and other parts of the deceased Shri Rakesh Kumar, who ultimately died due to the same. The driver and the owner of the scooter filed a joint reply admitting the fact that the scooter was being driven by Shri Sunil Kumar and the deceased was the pillion rider at the time of the accident. However, negligence was denied and the fault was attributed to respondent No.7 herein, the driver of the Bus No.HP-22-569, who was allegedly driving the bus in a rash and negligent manner. The impact of the accident was such that the scooter was dragged for a distance of about 30 feet and the right leg of the deceased got crushed under the tyre of the bus. The New India Assurance Co., respondent No.6 herein filed a separate reply denying the negligence of the driver of the Scooter and also disputing the validity and the effectiveness of the driving licence held by Shri Sunil Kumar at the time of the accident. Common reply was filed on behalf of Shri Sher Singh driver of the bus, owned by the Himachal Road Transport 3 Corporation, pleading that the accident took place only due to the rash and negligent driving of Shri Sunil Kumar. Based on the pleadings of the parties, the trial Court framed the following issues :- 1) Whether the accident of Bus No.HP-22-569 and Scooter No.HP-20-2016 leading to the death of Rakesh Kumar allegedly pillion rider occurred due to contributory negligence and rashness driving on the part of the driver of the scooter respondent No.1 and driver of bus, respondent No.6 as alleged? ……OPP 2) If issue No.1 is held in the affirmative, to what amount of compensation, the petitioners entitled and from whom? ……..OPP 3) Whether respondent No.3 is not liable indemnify the insured, respondent No.2 for want of proper Insurance Contract? …….OPR3 4) Relief. Appreciating the material on record (oral and documentary), the Court found that the drivers of both the vehicles i.e. S/Shri Sunil Kumar and Sher Singh were driving their respective vehicles in a rash and negligent manner and thus contributed equally in causing the accident. The Court found that the deceased died as a result of an accident and taking his income to be Rs.3,000/- per month, the loss of dependency was worked-out to be Rs.2,000/- per month and considering the age of the deceased to be 28 years, by applying a multiplier of 15, the total amount of compensation was determined at Rs.3,65,000/-. 50% of the same was directed to be paid by the Insurance Company and the remaining 50% was directed to be 4 paid by the appellants and the Driver Shri Sher Singh, jointly and severally. The claimants have also filed cross-objections which are registered as Cross Objections No. 282/2005 and shall be separately dealt with. I have heard the learned counsel for the parties and also perused the record. Finding of the Court below with regard to the contributory negligence, is purely based on conjectures and surmises, which is evident from the findings reproduced as under:- “All these circumstances taken jointly would reflect that both drivers i.e. Sunil and Sher Singh might have contributed jointly for causing the accident. But they attempted to put blame solely on one another for causing this accident. Rather it appears that Sunil, scooterist and Sher Singh, bus driver both were driving their respective vehicles rashly and negligently and contributed equally in causing this accident. Such conclusion in circumstance of this case would be legitimate for me to draw.” In order to determine as to whether S/Shri Sunil Kumar and Sher Singh were driving their respective vehicles in a rash and negligent manner, the deposition of Smt. Sheelan Devi (PW-2), Shri Lekh Raj (PW-3), Shri Sunil Kumar (RW-6) and Shri Sher Singh (RW-7), is to be considered. 5 As per the version of PW-3, the scooter being driven by Shri Sunil Kumar down hill was at a high speed and the accident occurred due to his fault. The scooter collided with the bus and fell down on one side and the deceased who came under the bus was dragged for a quite distance. Even though the presence of this witness at the spot has not been sufficiently explained but, however, the fact of the matter is that he is a friend of the deceased and does not personally know any of the drivers of the vehicles in question. He has no reason to depose falsely against them. Shri Sunil Kumar (RW-6) has totally blamed the driver of the bus Shri Sher Singh. When he saw the bus being driven by respondent No.7 at a high speed on the wrong side, he brought the scooter on the side of the road but, however, the bus collided his scooter causing the accident. In cross- examination, he admitted that the bus was coming up hill and he was driving the scooter down hill. He admitted the total width of the road to be 15 feet and metalled portion 10 feet. He admitted that an FIR under Sections 304-A and 279 IPC was registered against him for having driven the scooter in a rash and negligent manner. He denied the suggestion that he was driving the scooter in a rash and negligent manner which resulted into skidding of the scooter. He has further deposed that he was on his way from the Bhoranj Hospital when someone from behind shouted for him. He slowed down the scooter and when he turned around 6 to see who it was, the deceased suddenly jumped and sat on the scooter. As against his statement, statement of Shri Sher Singh (RW-7) inspires more confidence. He has stated that when he reached at a place called Bassi, scooter being driven by Shri Sunil Kumar come down hill at a very high speed in a rash and negligent manner due to the same Shri Sunil Kumar lost control and tilted on one side and the scooter along with its pillion rider were dragged for a considerable distance. However, according to him, the scooter did not collide with the bus as seeing the speed of the scooter he had stopped the bus on one side of the road. The police came at the spot and after taking into account the prevailing situation, an FIR was registered only against Shri Sunil Kumar, as the accident had occurred due to the rash and negligent driving of the scooter on his part. To me this witness does not appear to be a truthful witness for the simple reason that he has materially contradicted the version of Smt. Sheelan Devi (PW-2), the mother of the deceased. According to PW-2, she was standing on the road at Bassi Chowk with her deceased son, when Shri Sunil Kumar came on the scooter and asked her son to accompany him, as he had wanted him to campaign for his mother in the elections. Reluctantly her son agreed, but when they went she saw Shri Sunil Kumar driving the scooter in a rash and negligent manner towards Tarakwadi side and after some time learnt about the accident in which her son died. 7 Importantly, no evidence has been led by any of the parties to prove the outcome of the police case registered against Shri Sunil Kumar. No photographs or site plan have been placed on record. From the admission of RW-6, at the place of the accident the road was approximately 15 feet, the bus was on the ascent and the scooter was on the descent. Police case was registered only against Shri Sunil Kumar. PW-2 has deposed that the driver left Bassi Chowk alongwith her son in the scooter which was being driven at a high speed. PW-3, the spot witness has also proved that Shri Sunil Kumar was driving the vehicle at a high speed. Even if the scooter had collided with the bus that by itself would not prove the negligence of the bus driver Shri Sher Singh. Importantly, there is no serious cross-examination to the statement of Shri Sher Singh on the point that after seeing the scooter being driven at a high speed, he stopped the bus on one side of the road. Therefore, in my view, the findings returned by the Tribunal holding the driver of the bus on the point of contributory negligence are contrary to the record and are based on mere conjectures and surmises. The same are set-aside. It is held that it was Shri Sunil Kumar alone who was driving his scooter, in a rash and negligent manner and was responsible for the accident in which the deceased sustained injuries and later on died. The appeal is allowed and the impugned Award is modified accordingly. 8 Cross Objections No. 282/2005 In the cross-objections, the claimants have referred to the decisions rendered in Sunil Kumar vs. Ram Singh Gaud and Ors. {2008(1) ACJ 9}, Kanhaiyalal Kataria & Ors. vs. Mukul Chaturvedi & Ors. {2007(3) ACJ 1972}, Tamilnadu State Transport Corpn. Ltd. vs. S. Rajapriya & Ors. {2005(3) ACJ 1441} and Lata vs. Union of India Insurance Co. Ltd. & Ors. {2005(2) ACJ 857} to contend that the multiplier of 16 applied by the Tribunal is on the lesser side and also the income of the deceased for the purpose of dependency has been assessed on the lower side. Shri Ajaib Singh (PW-4) has proved the salary certificate Ext.PW-4/A and has further deposed that after deduction, the deceased was receiving Rs,3,900/- per month in India and was entitled to the following perks:- “(1) Furnished accommodation with free Water & Electricity. (1) All medical facilities. (2) Travelling and conveyance expenses.” But, however, from his statement, it is evident that the deceased was employed with the firm only till October, 1999 and not thereafter. The evidence does not disclose the latest income of the deceased as on the date of the death, which is December, 2000. In the absence of any complete evidence, in my view, 9 there is no further scope of enhancement of the compensation. No doubt, the age of the deceased was 28 years but, however, one of the claimants i.e. the mother of the deceased was 50 years of age. The multiplier of 15 has been rightly applied by the Tribunal. I see no reason to interfere with the same. In Oriental Insurance Co Ltd., vs. Jashuben and Ors. {2008(4) SCC 162}, the Apex Court has held that it is necessary to consider the earning of the deceased at the time of the accident. The cross-objections are dismissed accordingly. ( Sanjay Karol ), Judge. October 1, 2008. (rana)