IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 583 of 2005 The Oriental Insurance Company Ltd. .. Appellant Vs Sri Sohan Pokhriyal & two others …Respondents Sri V.K. Kohli, learned Senior Advocate assisted by Sri I.P. Kohli, advocate for the appellant Sri Sobhit Sharia, advocate for the respondent No. 1 Sri Nanak Chand Gupta, Advocate for respondents No. 1 and 3 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellant/Insurance Company against the judgment and award dated 06.10.2005 passed by M.A.C.T./Additional District Judge/F.T.C.-IV, Dehradun in M.A.C.C. No. 104 of 2003 whereby the Tribunal awarded a sum of Rs. 6,69,000/- in favour of the claimant. 2. Brief facts of the case are that on 23.01.2003 at about 11:30 a.m., the claimant/injured was traveling along with his companion – Vijaypal on Scooter No. CHB/460 from Haridwar to Bahadurabad. The scooter was being driven by Vijaypal and the injured was traveling as a pillion rider. After crossing Haridwar, at a distance of 3 kms, one tractor, which was being driven by its driver in a rash and negligent manner, suddenly moved from the side of Vijaypal, due to which the Scooter was collided with the tractor and both the riders of scooter received serious injuries. The claimant/injured was admitted in the Government Hospital, Haridwar and thereafter he was referred to Jollygrant Hospital, Rishikesh for better treatment. In this accident, the claimant sustained serious injuries. At the time of the accident, he was 32 years of age and was working in the Garhwal Mandal Vikas Nigam and used to earn Rs. 3,500/- a monthly salary. Therefore, the claimant/injured filed claim petition before the Tribunal concerned for Rs. 10 lacs as compensation. 3. In order to support his case, the claimant/injured has produced himself as P.W. 1, Smt. Sushma Maithani (P.W.2), Dr. Charitesh Gupta (P.W.3), Vijay Pal (P.W.4), Ganeshi Devi (P.W.5) and Rajesh Sharma (P.W.6) in support of his case. The claimant has further submitted injury report, first information report, medical bills, hospital bills etc. in support of his case. 4. Sri Irfaan and Sukhal contested the claim petition by filing their combined written statement before the Tribunal concerned. In support of their case, they have produced insurance papers, vehicle registration certificate, licence etc. They have further pleaded that the driver of the tractor was an experienced driver and the said accident was took place due to negligence of the scooter driver. Therefore, the claim petition was liable to be dismissed against them. 5. The Oriental Insurance Company Ltd. also contested the claim petition by filing its written statement denying the allegation made in the claim petition. It has also pleaded that the amount of compensation is very excessive. It has further pleaded that the owner of the scooter and Insurance Company of Scooter are the necessary parties and the claim petition is liable to be dismissed for non-joinder of necessary parties. 6. The Tribunal on the basis of the pleadings of the parties framed following issues, which reads as under:- 1. Whether the accident took place due to rash and negligent driving of Tractor UA08/6830? If it is so, its effect? 2. Whether the accident took place due to rash and negligent driving of Motor Cycle No. CHB/4060? If it is so, effect? 3. Whether the claim petition was defective due to non joinder of party of the owner/driver of the Motor Cycle? 4. To what amount of compensation, if any the claimants are entitled to get, and against whom? 7. The Tribunal after hearing learned counsel for the parties and perusing the entire material available on record decreed the claim petition to the tune of Rs. 6,69,000/- in favour of the claimant vide judgment and award dated 06.10.2005. 8. Feeling aggrieved by the aforesaid judgment and award, the appellant/Insurance Company filed this appeal before this Court. 9. Heard Sri Sri V.K. Kohli, learned Senior Advocate assisted by Sri I.P. Kohli, advocate for the appellant, Sri Shobhit Saharia, advocate for the respondent No. 1, Sri Nanak Chand Gupta, Advocate for respondents No. 2 and 3 and perused the record. 10. Learned counsel for the appellant has firstly argued before me that in this case, it is quite established from the evidence available on record that the part of the driver of the scooter in causing the accident cannot be ignored. It has been submitted before me that the diver of the scooter had sufficient opportunity to see the tractor coming from the opposite direction and the learned Tribunal without considering this aspect has committed an error by deciding this issue that the driver of the tractor was held to be negligent solely. 11. Learned counsel for the respondent has made the rival contention that the impugned judgment passed by the Tribunal is absolutely justified. He was submitted that the evidence nowhere indicates that the driver of the scooter had been negligent and rash in any manner, at the time of the accident. It has been submitted that it is in no way the case of contributory negligence. 12. The record reveals that the scooter was being driven by one – Vijaypal and the respondent No. 1 – Sohan Pokhriyal – claimant was a petition rider on the scooter. The claim petition indicates that on 23.01.2003 at about 11:30 a.m., when the scooter No. CHB/4060 being driven by Vijaypal was going from Haridwar to Bahadurabad, the claimant was sitting as a pillion rider and ahead of Haridwar at about 3 kms, the tractor coming from the opposite direction dashed the scooter without applying any horn, due to which the claimant and Vijaypal fell down on the road and the claimant became unconscious. The Tribunal framed issue Nos. 1 and 2 in this regard. The issue No. 1 is as to whether the accident was caused on account of rash and negligent driving of the tractor and if it is so, its effect and issue No. 2 is a to whether the accident was caused on account of rash and negligent driving of the motorcycle/scooter No. CHB/4060, if it is so, its effect? 13. The Tribunal after considering the evidence available on record decided the aforesaid issues by observing that the accident was caused by sole rash and negligence of the driver of the tractor. It has also observed that the driver of the scooter had not contributed any rash and negligence in this accident. 14. Now, on a close scrutiny of the evidence, it appears that document 71C/2 – site plan and 71C/1/3 – technical inspection report of the scooter are on record and the site plan 71C1/2 shows that the tractor had to take a turn towards the side orad leading to Pithwali Road i.e. the place of accident which leads to three side i.e. from Haridwar to Bahadurabad and towards Pithwali Road. The scooter driver had seen the tractor coming from opposite direction from a reasonable distance. The pleadings of the claimant is that the tractor took a sudden turn towards Pithwali Road and by that time, the Scooter had crossed 2/3rd portion of that crossing. Therefore, by taking a sudden turn by tractor driver, the accident took place but the manner in which the accident had taken place clearly indicates that had the driver of the scooter/motorcycle been vigilant then he could have very much avoided the accident. The driver of the scooter had seen the tractor coming from the opposite direction from a reasonable distance and the driver of the scooter/motorcycle also knew this fact that he had to cross that crossing, where three roads are meeting. Therefore, the driver of the scooter/motorcycle should have also taken a care and caution in driving the scooter at the place of the accident. 15. In case, of contributory negligence, the accepted principle is that the contributory negligence arises when there has been some act or omission on the claimant’s part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as “negligence”. Negligence ordinarily means breach of a legal duty, but when used in the expression “contributory negligence”, it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in pat as an “author of his own wrong”. The decree of want of care constitutes contributory negligence and it varies with a circumstances and the factual situation of the case. 16. In the circumstances of present case and keeping in view of the dictum of ‘Res ipsa loquitor’, the claimant has no right to complaint, if in the agony of the collision, the driver of the tractor fails to take some steps which might have resulted to a collusion, unless the claimant also shows that the driver of the scooter/motorcycle had also observed reasonable care and caution at the place of the accident. Keeping in view the topography of the place of accident, it is established that the scooter/motorcycle driver also did not reasonable care in avoiding the accident. The driver of the scooter/motorcycle at the time of crossing the road and in view of this particular fact that the tractor was coming from the opposite direction, had to observe the reasonable cautious and care, but the circumstance in which the accident had taken place clearly indicating towards this aspect that the driver of the scooter/motorcycle also contributed the rash and negligence in this accident. 17. My view further gets strength by the evidence that the technical inspection report of the scooter No. 71C1/3 further indicates that the rear brakes in the scooter/motorcycle were found to be weak. The technical inspection report of the tractor is also available on record, which is document NO. 71C 1/4 and this report shows that there was no technical defect in the tractor. Therefore, in the light of this aspect that the scooter was having weak brake, the rash and negligence on the part of the scooter/motorcycle driver cannot be brushed aside. 18. Now, I come to this point as to howmuch percentage of the rash and negligence has been contributed by the driver of the scooter/motorcycle in this accident. It is true that the tractor is bigger vehicle and the tractor driver also should have taken a reasonable care and caution in turning its tractor towards the by pass road. The driver of the tractor also must have seen the scooter coming from the opposite direction and the it had also crossed approximately 2/3rd of the by pass road at the time of the accident. Had the tractor driver been vigilant then he could have given a pass to the scooter driver. But it appears that the driver of the tractor was also rash and negligent and without giving any proper indication to take a turn to the by pass road, the driver of the tractor all of a sudden turned his tractor, which resulted this accident. Therefore, the rash and negligence on the part of the tractor driver is certainly on higher footing. 19. Keeping in view the dictum of ‘Res ipsa loquitor’ as well as document available on record, I come to the conclusion that the rash and negligence on the part of the tractor appears to be 70% while rest of the rash and negligence of 30% is certainly on the part of the scooter/motorcycle driver. 20. With the above observations, I set aside the finding recorded by the Tribunal observed in the impugned judgment that the rash and negligence is solely on the pat of the tractor driver in this case. 21. Learned counsel for the appellant has further submitted that the multiplier adopted in this case is also on higher side. He has submitted that the Tribunal has adopted the multiplier of ‘17’ and in view of the latest pronouncements of the Hon’ble Apex Court in The New India Assurance Company Ltd. Vs Smt. Kalpana & others reported in (2007) 2 Supreme Court Cases (Cri) 94, T.N. State Transport Corporation Vs S. Rajapriya & other reported in (2005) 6 SCC 276 and The Managing Director, TNSTC Vs Sripriya & others reported in 2007 (5) Supreme 301 a multiplier in this case cannot travel more than ‘3’. 22. Learned counsel for the respondent has submitted that in view of the age of the injured as well as table given under Section163-A of the Motor Vehicle Act, a just and proper multiplier of ‘17’ has been adopted by the Tribunal. 23. I have gone through the judgment of the Hon’ble Apex Court and in the light of the observations made by the Hon’ble Apex Court in the aforesaid decisions as well as keeping in view the age of the claimant, multiplier of ‘13’ would be just and proper in this case. 24. I am, therefore, of the view that the multiplier adopted by the Tribunal as ‘17’ is also liable to be set aside and a multiplier of ‘13’ in this case would be just and proper. 25. The Tribunal has also awarded a sum of Rs. 60,000/- for the nursing/attendant chargers, which also appears to be excessive. Sushma Maithani (P.W.2) has been Produced before the Tribunal and she has stated that she took care of the claimant as a nurse. She has stated in cross- examination that she did not issue any receipt with regard to the money taken by her from the claimant. She has also stated that she was not authorized by the doctor for nursing of the claimant. Therefore, a sum of Rs. 30,000/- would be adequate to award the claimant under the head of nursing/attendant charges instead of Rs. 60,000/- as has been awarded by the Tribunal. 26. The claimant has suffered 50% disability on account of injuries sustained by him in this accident. The claimant has also produced disability certificate issued by the competent authority. The Tribunal has also taken in consideration the disability suffered by the claimant as 50% and I am of the view that the finding recorded by the Tribunal is not be disturbed on this ground. 27. On the basis of the assessment of record, the total (annual income) amount thus comes to Rs. 36,000/- (3,000 X 12) as has been held by the Tribunal and after keeping in view the age of the claimant as well as decisions of the Hon’ble Apex Court (supra) by adopting the multiplier of ‘13’ the amount of compensation comes to Rs. 4,68,000/- (36000 X 13). As the disability suffered by the claimant is 50%, therefore, this amount would be again divided by ½ and thus the amount comes to Rs. 2,34,000/-. 28. As I have already observed that the contributory negligence on the part of the scooter/motorcycle driver is 30%, therefore, the amount upto an extent of 30% from the total amount of Rs. 2,34,000/- would again have to be deducted and thus the amount of compensation, which is to be awarded to the claimant, comes to Rs. 1,63,800/-. The Tribunal has awarded a sum of Rs. 2,33,000/- as medical expenses and I am of the view that this amount appears to be justified keeping in view the documents filed by the claimant pertaining to his medical treatment. The Tribunal has further awarded a sum of Rs. 60,000/- as the future medical expenses and Rs. 10,000/- as pain and suffering and the amount awarded under the aforesaid heads also appear to be justified. However, the amount of Rs. 60,000/- as has been awarded by the Tribunal under the head of nursing/attendant expenses does not appear to be justified and I am of the view that the reduction in this amount to Rs. 30,000/- would be appropriate. Thus the total amount of compensation to be awarded in favour of the claimant, reads as under:- 1. Disability Rs. 1,62,800/- 2. Medical expenses Rs. 2,33,000/- 3. Future medical expenses Rs. 60,000/- 4. Pain and agony Rs. 10,000/- 5. Nursing/attended exp. Rs. 30,000/- TOTAL RS. 4,96,800/- (Rounded Rs. 4,97,000/-) 29. So far as the interest on the amount of compensation indicated by the Tribunal is concerned, it is not to be disturbed. 30. No other point has been pressed by the learned counsel for the parties. 31. With the aforesaid observations, the appeal is partly allowed. The impugned judgment is modified upto the extent mentioned above. The claimant is entitled to get Rs. 4,97,000/- instead of Rs. 6,69,000/- as compensation. 31. The amount, if any, deposited before this Court be remitted to the tribunal concerned. (B.C. Kandpal, J.) 20th May, 2008 ASWAL