IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR

BEFORE

HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL

ON THE 27 th OF OCTOBER, 2022

MISC. APPEAL No. 1263 of 2016

BETWEEN:-

• 1. SMT. SHANTI W/O LATE SHRI KRISHNA @ KISHAN RATHOR, AGED ABOUT 26 YEARS, AGYARAM RATHORE KA MAKAN L.I.G. 195 DARPAN COLONY THATIPUR MURAR GWALIOR (MADHYA PRADESH)
• 2. KUMARI NANDANI D/O LATE KRISHNA @ KISHAN RATHORE, AGED ABOUT 7 YEARS, OCCUPATION: THROUGH MINOR MOTHER SMT. SHANTI PURANI BASTI BHIND AT PRESENT AAGYARAM RATHORE KA MAKAN L.I.G.195 DARPAN COLONY THATIPUR MURAR (MADHYA PRADESH)
• 3. KUMARI PAYAL D/O LATE KRISHNA @ KISHAN, AGED ABOUT 3 YEARS, OCCUPATION: THROUGH MINOR MOTHER SMT.SHANTI PURANI BASTI BHIND AT PRESENT AAGYARAM RATHORE KA MAKAN L.I.G.195 DARPAN COLONY THATIPUR MURAR (MADHYA PRADESH)
• 4. BHAWANI SHANKAR S/O LATE KRISHNA @ KISHAN, AGED ABOUT 1 YEARS, OCCUPATION: THAROUGH MINOR MOTHER SMT.SHANTI PURANI BASTI BHIND AT PRESENT AAGYARAM RATHORE KA MAKAN L.I.G.195 DARPAN COLONY THATIPUR MURAR (MADHYA PRADESH)
• 5. SMT.RAMJANKI W/O LATE DEVLAL RATHORE, AGED ABOUT 61 YEARS, PURANI BASTI BHIND AT PRESENT AAGYARAM RATHORE KA MAKAN L.I.G.195 DARPAN COLONY THATIPUR MURAR (MADHYA PRADESH)

.....PETITIONER

(BY SMT. MEENA SINGHAL-ADVOCATE FOR THE APPELLANTS)

AND

1. KHURSHEED ALAM S/O SHRI MAJID KHAN KATRA

2

SHAMSHER KHAN TAKIYA AJAD GUN ITAWA UP (UTTAR PRADESH)

2. DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD. JAYENDRAGANJ GWAIOR (MADHYA PRADESH)

.....RESPONDENTS

(BY SHRI KAMAL S. ROCHLANI-ADVOCATE FOR THE RESPONDENT NO.2.)

This appeal coming on for hearing this day, the court passed the following:

ORDER

Aggrieved by the award passed in MACC No.92/15 by Xth Motor Accident Claims Tribunal, Gwalior on 06.09.2016, the claimants/appellants preferred this appeal.

In brief, facts of the case are that husband of the appellant No.1 and father of appellants No.2, 3 and 4 and son of appellant No.5 deceased Kishan @ Kishan Rathore aged about 27 years, who used to do labour job and earned Rs.15,000/ per month. On 17.06.15 he was coming from Mehgaon to Bhind in tractor bearing registration No.U.P.92 R 6772 which was having Bhusa in the trolley and sitting on the mudguard of the tractor, at that time at about 9.30 pm, offending truck bearing registration No.U.P.75/M.0669 came behind the tractor and dashed the tractor trolley, due to which, tractor and trolley turned down. Deceased got seriously injured. On way to hospital he died. Soon after the incident, FIR was lodged against the driver of offending truck bearing registration No.U.P.75/M.0669 at Crime No.38/15 under sections 279, 337, 304-A of IPC. After investigation, charge sheet has been submitted against respondent No.1 driver and owner of the aforesaid offending truck which was insured with respondent No.2/Insurance Company. Appellants/claimants were dependent on the income of the deceased. Due to death of the deceased, they became hand to mouth. They filed an application under Section 166 of Motor Vehicles Act seeking compensation regarding death of the deceased and adduced ocular and documentary evidence on their behalf. Only respondent/Insurance Company adduced the evidence of investigator. Learned tribunal by assessing the income of the deceased Rs.5280/- per month i.e. Rs.63,360/- per annum and by deducting 1/4th and by taking the multiplier of 16 awarded total compensation of Rs.9,85,320/- and was of the opinion that deceased was also liable for this accident and finally awarded 50% of the aforesaid amount i.e. Rs.4,92,660/- in favour of the appellants/claimants.

Appellants/claimants preferred this appeal on the ground that learned tribunal erred in assessing the income of the deceased and taking into account the contributory negligence. As per SALSA guidelines on the date of incident i.e. 17.04.2015 income of the unskilled labour was of Rs.6239/-. Besides this, claimants have adduced evidence to this effect that offending vehicle dashed the tractor from behind. There was no contributory negligence on the part of the deceased in the aforesaid accident. Despite this, learned tribunal deducted 50% award towards the head of contributory negligence.

Learned counsel for the insurance company during arguments submitted that learned tribunal rightly assessed the income and rightly deducted 50% amount of the award on the basis of contributory negligence.

Heard the learned counsel for the parties and perused the record.

On perusing the record, it is quite clear that soon after the incident, FIR was lodged by one Ramdatt Rathore, wherein, he has specifically stated that deceased was travelling in the tractor bearing No. U.P.92R6772 and driver of the offending truck bearing registration No.UP75/M.0669 came in rash and negligent manner dashed the tractor trolley, due to which, tractor trolley turned down. Deceased who was sitting on the mudguard fell down and he got serious injuries. On the way, he died. In support of the application, wife of the deceased-Smt. Shanti Devi examined herself and Ramakant as an eyewitness. Eyewitness Ramkant specifically stated that deceased was travelling along with Bhusa on the tractor trolley bearing registration No. UP92R6772. Tractor was driven slowly. At 9.30 pm driver of the offending truck bearing No.UP 75/M0669 came driving rashly and negligently and from behind dashed the tractor trolley, due to which, tractor trolley turned down. Deceased and Kamlesh got severe injuries. Deceased died. During cross-examination respondent could not carve out any discrepancy so that his evidence could be disbelieved. Besides this, as far as accident is concerned, insurance company has not adduced any evidence regarding accident took place.

Looking to the facts and circumstances of the case and the evidence came on record, learned tribunal erred in assessing the income of the deceased and came to the conclusion that due to contributory negligence of the deceased this accident took place. Consequently, the appeal filed by the appellants/claimants is partly allowed. This Court is of the opinion that in place of income assessed by the learned tribunal Rs.5280/-, it should be Rs.6239/- as per SALSA guidelines and amount deducted by the claims tribunal i.e. 50% as a contributory negligence should be added while calculating the award.

Hence, the annual income of the deceased comes to Rs.74,868/- (6239x12=74868). After deducting 1/4 towards personal expenses, the compensation comes to Rs.18,717/- (Rs.74868/4=18717, Rs.74868- Rs.18717=56151), by taking multiplier of 17 and adding 40% towards future prospects (in light of decision of Apex Court in the case of National Insurance Co. Ltd Vs. Pranay Sethi, 2017 ACJ 2700(SC) since deceased was aged about 27 years at the time of accident), his award amount comes to Rs.13,36,394/- (56151x17+381827=1336394/-). Adding Rs.77,000/- towards other heads (in light of decision of Apex Court in the case of Pranay Sethi (supra), the total compensation comes to Rs. Rs.14,13,394/-. Thus, the claimants are entitled for total compensation to the tune of Rs.14,13,394/-. The Claims Tribunal has awarded compensation of Rs.4,92,660/-. Thus, the appellants-claimants are held entitled to receive enhanced amount of Rs.9,20,734/- (Rs.14,13,394-Rs.4,92,660)) in addition to the amount of compensation already awarded by the Claims Tribunal. Hence, the finding regarding contributory negligence is hereby set aside. Other terms and conditions of the award as well as interest part shall remain intact.

The enhanced amount of compensation is in excess to the valuation of appeal, the difference of the Court fee (if not already paid) shall be deposited by the appellants-claimants within two weeks' from today and proof thereof shall be submitted before the Registry. Thereafter, Registry shall issue the certified copy of the order passed today.

The judgment and award passed by the Tribunal is modified to the extent indicated above.

Parties are directed to bear their own costs.

VANDANA VERMA 2022.10.28 17:00:41 -07'00'

(DEEPAK KUMAR AGARWAL) JUDGE

Van