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SUBHASH RANI & ORS. versus RAM KUMAR

High Court of Punjab and Haryana, Chandigarh

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Subhash Rani & Ors. v. Ram Kumar - FAO-83-1994 [2006] RD-P&H 4838 (27 July 2006)

FAO No.83 of 1994 - 1 -

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

******

FAO No.83 of 1994

Date of decision: July 19, 2006.

Subhash Rani & Ors.

...Appellant(s)

v.

Ram Kumar & Ors.

...Respondent(s)

Present: Shri Shish Pal Laler, Advocate for the appellants.

Shri Narender Sura, Assistant Advocate General, Haryana for the respondents.

Surya Kant, J. (Oral)

This appeal has been preferred by the claimants against the award dated July 21, 1993 passed by the Motor Accident Claims Tribunal, Karnal whereby their claim petition has been partly allowed and they have been granted compensation of Rs.4,07,232/- on account of death of Banarasi Dass in a vehicular accident which took place on 5.3.1992. The appellants are widow, minor son and mother, respectively, of the deceased.

Banarasi Dass was working as an Agriculture Development Officer in the Agriculture Department, Government of Haryana; on 5.3.1992, he had gone to village Jalmana on official duty; at about 3 p.m., he boarded bus no. HRV-4627 belonging to Jind Depot of the Haryana FAO No.83 of 1994 - 2 -

Raodways in order to reach Assandh; the bus was being allegedly driven at a very fast speed and in a rash and negligent manner by the first respondent; when the bus reached near Kaithal Chowk, Banarasi Dass came near to the rear window of the bus and in order to get down he made a request to stop the bus; the first respondent allegedly stopped the bus but immediately re- started the same with a jerk as a result of which Banarasi Dass fell from it and received multiple injuries; Bhola Nath (PW8), who happened to be present at the chowk and witnessed the occurrence, took Banarasi Dass to Civil Hospital, Assandh but he succumbed to the injuries on the way; said Bhola Nath thereafter got a case registered with the police vide FIR Ex.PA.

Alleging that they were fully dependent upon the deceased, the appellants file a claimed petition for the grant of compensation of Rs.10 lacs.

There is no dispute with regard to the fact that the deceased was 37 years of age at the time of the fatal accident and was drawing salary of Rs.4411/- per month and if House Rent Allowance and Medical Allowance are excluded, then his monthly salary was Rs.4241/-.

The Tribunal after holding that the deceased must be spending 1/3rd

of salary towards his personal expenses, worked out the dependency @ Rs.2828/- per month, i.e. Rs.33936/- per year, and by applying the multiplier of 16, calculated the total compensation as Rs.5,42,976/-.

However, the Tribunal further held that the accident took place due to 25% contributory negligence of the deceased, therefore, it applied a cut of 1/4th on the assessed compensation amount and held the appellants entitled for a sum of Rs.4,07,232/- only.

Aggrieved, the appellants have preferred this appeal.

FAO No.83 of 1994 - 3 -

I have heard Learned Counsel for the parties and perused the record with their assistance.

Learned Counsel for the appellants has made two-fold submissions. Firstly, it is argued that, no evidence to prove negligence on the part of the deceased, which might have contributed to the cause of the accident, has been produced, therefore, the Tribunal ought not to have deducted 1/4th

of the compensation amount. Secondly, it is contended that, having regard to the family responsibilities of the deceased, he could not have spent 1/3rd

of his salary towards personal expenses and on the principle of equitable distribution, a cut of 1/4th only ought to have been applied.

On the other hand, Learned State Counsel defends the order of the Tribunal so far as it holds the deceased partly responsible for causing the accident in question. It is contended by him that in a case of contributory negligence, the Tribunal was justified to apportion the loss between the parties. Reliance has been placed by him on a judgment of the Hon'ble Supreme Court in the case of Municipal corporation of Greater Bombay v. Shri Laxman Iyer & Anr.,

The recapitulation of the occurrence, as noticed by the Tribunal while deciding Issue No.1 and in para 6 of the impugned award, may be summarized as follows:-

There is no dispute that the deceased had boarded the bus No.HRV-4627, which was going to Assandh. It is also proved that he wanted to alight the bus at Kaithal Chowk and when the driver of the bus applied sudden brakes, it caused a jerk as a result of which he fell down from the bus. According to Learned State Counsel, the nature and manner of the accident does suggest that even before the bus could stop, the FAO No.83 of 1994 - 4 -

deceased stood up and wanted to get down and when the brakes were applied, he fell down and received injuries. Learned State Counsel argues that the deceased should have firstly informed the Conductor that he wanted to alight at a particular bus stop and ought to have waited till the bus was stopped. It is, thus, contended by him that the Tribunal has rightly held that the deceased, by acting in a negligent manner, also contributed in the occurrence.

In order to appreciate the contention raised on behalf of the respondents, it may be assumed that the deceased did not remain seated as he wanted to get down at the Kaithal Chowk, yetit cannot be overlooked that no evidence has been led by the first respondent to show that the deceased did not make any request to stop the bus before he started getting down at Kaithal Chowk. The Conductor of the bus could have some 'special knowledge' in this regard but he has not been produced in the witness box. It is not the case of the driver that the Kaithal Chowk was not an officially declared bus stop. If the driver of the bus is aware that the bus is nearing a bus stop, it was his paramount duty to slow down the speed in such a manner that the bus would have stopped with normal application of brakes. The driver of the bus was expected to know that there might be some other passengers also to alight at that bus stop. The manner in which the bus passengers were making hue and cry to slow down the speed as deposed by Bhola Nath (PW8) and the way the brakes were applied giving a strong jerk, due to which the deceased lost control while getting down from the bus, speaks in volume about the manner in which the first respondent was driving or stopped the bus. It is also apparent that the bus had hardly stopped when it was re-started with a jerk which simply shows that the FAO No.83 of 1994 - 5 -

driver or conductor did not even bother as to whether the passengers have got down or not. In this view of the matter, there appears to be no basis to hold that the deceased acted in a negligent manner and/or contributed in the accident. The findings returned by the Tribunal to the extent that 25% negligence was attributable to the deceased for causing the accident in question, thus, has no factual or legal foundation. The same is consequently set aside.

As far as the second contention raised on behalf of the appellants is concerned, it has come on record that the deceased was required to maintain and look after his aged mother, wife and a minor son.

In a society like ours where, on account of social and emotional bondage, the well being and care of the parents as well as responsibility to provide education and basic facilities to the children falls on the shoulders of an earning hand, it does not appear convincing that the deceased would have spent 1/3rd

of the salary towards his personal expenses. In a family of four members like this, it would have been more appropriate to equally distribute the income. By applying this principle, I am of the considered view that the deceased would have been spending 1/4th

of the income towards his

personal expenses. In this manner, the monthly dependency of the appellants comes out to Rs.3181/-, i.e. Rs.38172/- per year. The multiplier, as applied by the Tribunal, appears to be totally justified. The appellants are, thus, held entitled for a compensation of Rs.6,10,752/-. Since it has been held that no negligence can be attributed to the deceased for causing the accident in question, no deduction out of the compensation amount can be made and they are held entitled to receive the entire amount of compensation. It is further directed that the appellants shall also be paid FAO No.83 of 1994 - 6 -

interest @ 6% per annum on the enhanced amount of compensation.

In the terms aforesaid, the appeal stands disposed of.

No order as to costs.

July 19, 2006. [ Surya Kant ]

kadyan Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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