SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 1/7 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. 1. S.B. CIVIL MISC. APPEAL NO.331/1996 Smt. Shashi Sharma and anr. Versus Devi Singh and ors. 2. S.B. CIVIL MISC. APPEAL NO.330/1996 Smt. Naina Devi and ors. Versus Devi Singh and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr. Bhupendra Bhatnagar, }for the appellants.. Mr.Sheetal Kumbhat } Mr.R.K.Mehta, for the Insurance Company. None present for the owner and driver. DATE OF JUDGMENT : 1st December, 2009. JUDGMENT 1. These two appears arise out of award td.1.12.1995 passed by the MACT, Rajsamand deciding claim case No.137/1991 – Smt. Shashi Sharma V/s Devi Singh and ors. and claim case No.138/1991 - Smt. Naina and ors. V/s Devi Singh and ors. SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 2/7 2. In an accident which occurred on 11.6.1988 at around 3.30 p.m, when the deceased Dr. Surendra Sharma was going on along with another deceased compounder Govind Ram on his scooter No. RNH 9282 from Tatgarh to Bhim, they met with a truck No. RNW 1161 and as a result of said accident, both these persons aged 31 and 28 years respectively lost their lives. Both were Government servants. 3. The learned Tribunal held that both the vehicles were at fault, namely, scooter driver being doctor Surendra Singh to the extent of 20% and driver of the Truck Devi Singh to the extent of 80%. 4. Being aggrieved by the said award, the claimants have approached this Court by way of present appeals seeking enhancement of compensation awarded by the Tribunal and also on the ground that the Tribunal has wrongly held the driver of the scooter liable for the said accident to the extent fo 20%. 5. Mr. Bhupendra Bhatnagar, the learned counsel appearing for the claimants urged that from perusal of the site plan in question, it would be clear that the driver of the scooter Dr. Surendra Singh was going on in his own site i.e. left hand side of the road and the truck in question coming from front side, hit him from the front and dragged the said scooter for 147 ft. and the truck was found by the police authorities on the wrong side of the road, therefore, no case of SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 3/7 contributory negligence of the driver of the scooter could be inferred. He also submitted that the learned Tribunal has erred in granting adhoc compensation only to the extent of Rs.2 lacs for the death of said Dr. Surendra Sharma and Rs.1,48,000/- for the death of compounder Govind Ram. He, however, does not dispute that as per the provisions of Section 95 of the old Motor Vehicles Act, 1939, liability of Insurance Company, namely, New India Assurance Company would be limited. The owner of the truck, despite service, is not represented in this Court. Mr. Bhatnagar therefore, prays that suitable enhancement in compensation deserves to be granted. He relied upon the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) and ors. V/s Delhi Transport Corporation and anr. reported in MACD 2009 (SC) 353 and the decision of this Court in the case of Vimla Devi and ors. V/s Hari Singh and ors. reported in 2003(1) WLC (Raj.) 468. 6. Mr. R.K. Mehta, learned counsel appearing for the Insurance Company does not oppose the submissions on merits of the case. However, he submits that in view of uncontested limited liability of the Insurance company which has already been discharged by the Insurance Company, the respondent – Insurance Company does not have much role to play in the present matter now. SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 4/7 7. Having heard the learned counsels at some length and upon perusal of the record, this Court finds considerable force in the submissions of the learned counsel for the appellants. The learned Tribunal appears to have been swayed, albeit wrongly, that merely because at the site of the accident, the scooter was found to be 6 ft. on the right of the extreme left corner of the road, therefore, the said scooter driver Dr. Surendra Sharma contributed to the said accident and almost ran into the truck coming from other side. This Court has perused the site plan and does not find any basis for this finding of the learned Tribunal. On the contrary, the truck coming from other side viz. the left side of the road came almost on the middle of the road which is said to be 21 ft. wide and hit the said scooter from the front and dragged the said scooter along with dead bodies for more than 140 ft. The bodies were found strewn under the truck. After so much of dragging, rash and negligent driving of the driver of the truck is clearly seen from the record. Therefore, the findings of the learned Tribunal of 20% contributory negligence of the driver of the scooter is liable to be set aside and same is accordingly set aside. 8. That as far as amount of compensation is concerned, the grant of adhoc compensation by the learned Tribunal also cannot be appreciated. Both the deceased persons were Government servants and proof of their income was very much available on record. The salary last drawn by the deceased Dr. Surendra Sharma was 3300/- SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 5/7 and that of compounder Govind ram was 1650/-. Though they died way back in the year 1988 due to said accident, but looking to the their age of 31 years and 28 years respectively, future prospects of increase in their income also was required to be taken into consideration. Recently, the Hon'ble Supreme Court in the case of Sarla Verma V/s Delhi Transport Corporation and anr. (supra) has held that in such cases where the age of the deceased Government servant is less than 45 years, adhoc 50% enhancement in salary income determined by the learned Tribunal can be granted. Since the learned Tribunal instead of going into the income computation has awarded adhoc compensation, this Court would recompute the compensation as under: IN THE CASE OF DECEASED DR. SURENDRA SHARMA Rs.3300 – 1100 (1/3rd) = 2200x 12 x 16 = Rs.4,22,400/- Add 50% increase for future prospects = Rs.2,11,200/- of increase in income. ---------------- TOTAL Rs.6,33,600/- ----------------- IN THE CASE OF DECEASED GOVIND RAM Rs.1650 – 550 (1/3rd) = 1100x 12 x 17 = Rs.2,24,400/- Add 50% increase in future prospects = Rs.1,12,200/- of increase in income -------------------- TOTAL Rs.3,36,600/- --------------------- SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 6/7 9. Rounding off the aforesaid loss of contribution of income to the family on account of said death under other heads of loss of love and affection, funeral expenses etc., this court considers it expedient to round off the said compensation to Rs.6,50,000/- in the case of death of Dr. Surendra Sharma and Rs.3,50,000/- in the case of death of compounder Govind Ram. 10. Though the said compensation would be payable by the owner and driver of the vehicle, namely, the respondent No.1 Devi Singh and respondent No.2 Rajendra Prasad C/O Sharma Goods Transport, Beawar, in view of considerable lapse of time after the said accident in the year 1988 and since the owner is not represented here, it is directed that the learned Motor Accident Claims Tribunal, Rajsamand will issue attachment of properties of owner of the offending truck, namely, Sharma Goods Transport, Beawar and realize the said sum out of said attachment/auction proceedings, if the amount of compensation is not deposited by the owner of the vehicle and pay the same to the claimants in equal proportion by account payee cheques. The said process should be completed within a period of 3 months from today and compliance report be sent to this Court. Copy of this order may be sent to all the parties and Tribunal and record of the case may be sent back to the Tribunal immediately. The parties may appear before the Tribunal in the first instance on 28.12.2009. SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009 7/7 11. Both the appeals are accordingly allowed. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.18 and 19 Ss/-