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Smt. M. Devi v. A.P. Singh - FIRST APPEAL FROM ORDER No. 297 of 1989  RD-AH 1148 (12 October 2004)
Court No. 1
F.A.F.O.No.297 of 1989
Smt. Munni Devi ............. Petitioner.
Ajai Pal Singh & others..................Respondents.
Hon'ble Yatindra Singh, J.
Hon'ble V.S.Bajpai, J.
1. Sri Shiv Mangal Singh ( the deceased ) was going on a scooter on 7.8.1987. He met with an accident with a truck at around about 11 a.m.. He died on the spot. His widow has filed a claim petition under Motor Vehicle Act ( the Act ). It has been dismissed by the Tribunal below on 17 12 1988. Hence the present appeal.
2. We have heard counsel for the appellant and Sri Rajesh Ji Verma, counsel for the respondents.
3. The appellant in order to prove her case has produced herself as PW 1; one Sri Rajendra Kumar who was also going by his own Motor Cycle along with the deceased as PW 2; and one Sri Mahesh Chandra, witness of the spot as PW 3. Respondents in order to prove their case have produced Ram Prasad, driver of the truck as DW 1.
4. Rajendra Kumar PW 2 has stated that the truck in question after overtaking his motor cycle hit the scooter of the deceased from behind. He further stated that the deceased was dragged for some distance by the truck. Sri Mahesh Chand (PW 3) stated that he was owner of New Golden Transport Co. and he saw the accident. He narrated the same thing as has been stated by PW 2. Both of them stated that the truck was being driven negligently. Sri Ram Prasad who has produced himself as DW 1 on behalf of the respondents has not denied that he hit the deceased from behind. There is nothing in his statement to contradict the statement of PW 2 and PW 3. In view of this it cannot be said that there was no negligence on part of the truck driver.
5. Counsel for the respondents submitted that the deceased did not have driving license and as such the entire negligence is of the deceased and not of the truck driver.
6. We have considered the aforesaid submission of counsel for the respondents. It is correct that neither there is any driving licence on the record of the case nor any one has stated that the deceased was having driving license. In view of this it is held that the deceased had no driving licenses. But should it mean that the deceased was negligent? It is a case of contributory negligence.
7. If the deceased had no license then he should not have driven the scooter on a national high way. He ought to have taken license. The deceased was also negligent in this regard. We have already held that it was the truck driver who was driving negligently and hit the scooter from behind. In these circumstances, it is held that it is case of contributory negligence and both the parties were negligent to the extent of half. The next question is what is the compensation payable to the claimant?.
8. The appellant produced herself and stated that the deceased was doing vegetable business and was earning about Rs.5000/- per month. The deceased was not paying income tax. There is nothing to show that he was earning this amount of money. There is no credible evidence regarding his income. In these circumstances it would be appropriate to take notional income of Rs.15,000/- per annum prescribed under Second Schedule of the Act as his income. It is correct that the Second Schedule was not enforced at the time of the accident, however, guidance from the same can be taken. The family dependents would get 2/3rd of this income or Rs.10,000/- per annum. The deceased was aged 42 years and as such multiplier of 15 should be applied. As the deceased was responsible for contributory negligence to the extent of half the claimant is entitled to Rs.75,000/-. The claimant would also be entitled Rs.2000/- for funeral expenses, Rs.5000/- for loss of consortium and Rs.2500/- for loss of estate ( total Rs.84,500). Claimant is also entitled 6% interest on this amount from the date of application till actual payment. We, however, clarify that in case the claimant has already received any amount under Section 92-A of the Old Act (Section 130 of the new Act) then that amount would be adjusted.
9. With these observations, the appeal is partly allowed.
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