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BALWANT SINGH & ORS v MOHAN SINGH & ORS - CMA Case No. 651 of 2007 [2007] RD-RJ 925 (19 February 2007)

S.B. Civil Misc. Appeal No.651/2007

(Balwant Singh & Ors. Vs. Mohan Singh & ors.)

Date of Order :: 19th February 2007


Mr. Manish Pitaliya for the appellants. ....

Having heard learned counsel for the appellants and having examined the impugned award dated 24.04.2006 made by the Motor Accidents Claims Tribunal [Additional District

Judge (Fast Track) No.4], Udaipur in Claim Case

No.703/2004, this Court is clearly of opinion that the instant appeal by the claimants does not merit admission.

The parents, wife and minor daughter of the vehicular accident victim Dilip Talesara, about 31 years in age and said to be earning Rs.5,000/- per month, claimed compensation under Section 166 of the Motor Vehicles Act with the submissions that on 06.12.1999 at about 4:00 p.m. the victim, while riding his scooter from Lakhmawaton-Ka-Guda to

Udaipur sustained injuries on being hit by a mini truck bearing registration No. RJ27 G 1791 and succumbed on the spot; and that the accident was caused by rash and negligent driving of the said mini truck. The insurer of the truck contested on the submissions, inter alia, that the accident was caused by the fault and mistake of the victim alone and in any case, he was responsible for contributory negligence. After framing of issues and taking evidence led by the parties, the Tribunal observed in issue No.1 relating to the responsibility towards accident that no eyewitness was produced by either of the parties but then referred to a report made on 10.12.1999 by the Surveyor of the insurer NAW-1 Laxminarain, the photographs of the site produced by him, and the site inspection memo and found that the accident occurred on a 15 ft. wide road having 4 ft. wide footpath on either side; that there was a bridge 20 ft. ahead the point of incident and the truck was found lying down the road after smashing through the western side wall of the bridge; that the incident occurred at a curve and slope 3 ft. inside the road from the eastern side; and that there were no marks of application of brakes. The

Tribunal noticed the observations made in the survey report prepared by NAW-1 Laxminarain on 10.12.1999 that the truck was climbing uphill and the scooter was coming downwards; and that on the slope, the scooterist came on to the truck in a brisk speed; that the truck driver took the vehicle to the extreme left-hand side and yet the scooterist collided with the truck that hit against the bridge and fell down the road. The

Tribunal held that the scooterist was coming in a brisk speed downwards and the truck was also in a higher speed else it would have stopped upon application of brakes at the spot; and in the circumstances of the case, held that the accident occurred for the contribution of both the drivers and put such negligence on the part of the victim-scooterist at one-third.

On quantification of compensation, the Tribunal referred to the evidence led by the claimants suggesting that the victim, 31 years of age, had the qualification of M.Com. and was earning Rs.5,000/- per month while working as salesman with one M/s. Shanker Automobiles as stated in the certificate

Ex.27; but found that the certificate was issued by none other than the grandfather of the victim though the claimant-father attempted to conceal this relationship. The Tribunal noticed from the tax returns of the firm concerned that in its profit and loss account for the year ended 31.03.1999, salary payment was shown at Rs.26,400/-; and for the year ended 31.03.2000 it was shown at Rs.60,000/-. The Tribunal also noticed that according to the claimant Balwant Singh, father of the deceased, there were two persons working in the said firm and for this reason observed that the salary of the victim alone could not have been Rs.5,000/- per month.

After the discussion aforesaid, the Tribunal rejected the case of monthly income of the deceased at Rs. 5,000/- but then observed that he had passed in second division; and on notional basis took his income at Rs.3,600/- per month and deducting one-third wherefrom, took loss of contribution at

Rs.2,400/- per month and thus taking annual multiplicand at

Rs.28,800/- applied a multiplier of 17 to assess pecuniary loss at Rs.4,89,600/-; and then deducted one-third on contributory negligence of the victim and allowed pecuniary loss to the claimants at Rs.3,26,400/-. The Tribunal further allowed

Rs.22,000/- to the claimants towards general damages and also assessed property loss of scooter at Rs.27,000/- but allowed Rs.18,000/- towards compensation in view of contributory negligence of the victim. In this manner, the

Tribunal awarded compensation in the sum of Rs.3,66,400/- and allowed interest at the rate of 6% per annum on the amount payable after adjustment of the amount received under No Fault Liability.

By way of this appeal, the claimants seek to question:

(i) the finding on contributory negligence of the victim with the submissions that the Tribunal has been in error in its appreciation of evidence and particularly in relying upon the so-called report of the surveyor made as late as on 10.12.1999 whereas the accident occurred on 06.12.1999 and there was no reason for not relying upon the police investigation papers that show exclusive negligence on the part of the truck driver; and (ii) the quantum of compensation as being too low with the submissions that the Tribunal has been in error in not taking the income of the deceased at Rs.5,000/- per month in the face of unrebutted testimony to that effect and in not providing for future prospects. The submissions are bereft of substance.

So far the responsibility towards accident is concerned, it is true that the Tribunal has proceeded to observe as if relying more on the surveyor's report and has erroneously assumed that the surveyor has made the report immediately after the incident but even when the said report is removed out of consideration, it remains undeniable that the accident occurred for head-on collision of the two vehicles and usually such incidents occur for omission of care and caution on the part of both the on-coming drivers. The victim taking his scooter on a highway has not kept to his extreme left and then seems to have taken to a bit of speed due to the downward slope and seems to have faulted in negotiating the curve.

These facts cannot be overlooked altogether and some contribution to the accident on his part cannot be ignored.

However, the truck climbing uphill also took to a higher speed and, as rightly observed by the Tribunal, proceeded about 20 ft. ahead the point of incident before hitting against the bridge and falling down. In the overall scenario, the opinion formed by the Tribunal on one-third contributory negligence of the deceased cannot be said to be illogical or unjustified or unreasonable.

Moreover, in the present case, even if such finding on contributory negligence of the deceased is left out of consideration, this Court is clearly of opinion that the ultimate award as made by the Tribunal in the sum of Rs.3,66,400/- cannot be said to be on the lower side and, therefore, there appears no reason to interfere with the finding of the Tribunal.

It remains undeniable that the claimants have failed to produce any reliable evidence on the income of the deceased though he was 31 years of age and said to have done M.Com.

In respect of his earning, the claimants produced nothing but made up evidence in the form of a salary certificate from the grandfather of the deceased and then attempted to conceal their relationship. Then, the firm concerned allegedly making payment of salary of Rs.5,000/- per month to the victim had shown total payment on salary in its profit and loss account for the year ended 31.03.1999 only at Rs.26,400/-. The accident occurred on 06.12.1999 and the said firm has shown payment of salary at Rs.60,000/- in the next year ended on 31.03.2000.

Then, father of the deceased i.e., son of the owner of said firm, admitted that there were two persons working in the firm.

By no stretch of arguments, the salary income of the deceased could be taken at Rs.5,000/- per month on the basis of the facts available on record. No other source of income of the deceased has been stated. In this view of the matter, the

Tribunal does not appear justified even in taking notional income of the deceased at Rs.3,600/- per month; and, therefore, the assessment of pecuniary loss at Rs.4,89,600/- before deduction of one-third on contributory negligence has itself been much on the higher side.

The submission about want of rebuttal does not appear apposite to the fact situation of this case where the so-called unrebutted evidence is nothing but of concoction and rather the claimants do not appear forthright while claiming compensation. A reasonable estimate on the income of the deceased particularly for the purpose of assessing loss for the claimants is dependant upon a variety of facts, factors and circumstances; and want of rebuttal could also be one of the circumstance relevant; yet cannot be taken decisive of the point in every case. For that matter, in a given case even an admission of the non-applicants about the income and contribution might not be taken conclusive; because ultimately just compensation admissible in each individual case is to be assessed, considering an overall picture. In the fact situation of the present case, what to say of reliance upon, the so-called uncontroverted evidence does not inspire confidence at all; and the Tribunal has not committed any error in rejecting the same. The Tribunal has of course erred, in favour of the claimants, in taking notional income of the deceased at a higher figure of Rs. 3,600/- per month.

Question of any addition on future prospects does not arise in this case for the deceased has not been shown in any settled job or employment; rather the aspect of reasonable earnings of the deceased itself remains obscure and a matter of serious doubt. As noticed, the source of earning of the deceased as a salesman in the firm of his grandfather does not inspire confidence and then, there is no other evidence on his income.

It could readily be seen that if the finding on contributory negligence stands and then compensation is calculated with application of relevant principles, the ultimate award of compensation in favour of the claimants would only be lesser than that allowed by the Tribunal at Rs.3,66,400/-.

The appeal fails and is, therefore, dismissed summarily. [DINESH MAHESHWARI], J.



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