SUPREME COURT OF INDIA
Before: Justice Sudhansu Jyoti Mukhopadhaya and Justice V. Gopala Gowda, JJ.
SYED SADIQ And Others
versus
Divisional Manager, UNITED INDIA INSURANCE COMPANY LIMITED .
CIVIL APPEAL NOS.662-664 OF 2014 (ARISING OUT OF SLP(C) NO(s). 16739-16741 OF 2012)
16.01.2014
i. Motor Vehicles Act, 1988, S. 166 – Permanent disability – Functional disability or loss of earning capacity – Required to be sensitive while dealing with manual labour cases where loss of limb is often equivalent to loss of livelihood – Earning capacity – Impact of – Vegetable vendor – Might not require mobility to the extent that he sells vegetables at one place – However, the occupation of vegetable vending is not confined to selling vegetables from a particular location – Often involves selling vegetables in the cart which requires 100% mobility – Even by conservative approach, if we presume that the vegetable vending by the appellant claimant involved selling vegetables from one place, the claimant would require assistance with his mobility in bringing vegetables to the marketplace which otherwise would be extremely difficult for him with an amputated leg – Considering that the appellant claimant is still capable to fend for his livelihood once he is brought in the marketplace, we determine the disability at 85% to determine the loss of income. [Para 7]
ii. Motor Vehicles Act, 1988, S. 166 – Income – Proof of – Vegetable vendor – It is difficult for us to convince ourselves as to how a labour involved in an unorganised sector doing his own business is expected to produce documents to prove his monthly income – No reason for the Tribunal and the High Court to ask for evidence of monthly income of the claimant – Going by the present state of economy and the rising prices in agricultural products, vegetable vendor is reasonably capable of earning Rs 6500 per month. [Para 9]
iii. Motor Vehicles Act, 1988, S. 166 – Compensation – Income – Claimant 24 years old earning his livelihood by vending vegetables – Self-employed – 85% functional disability – Entitled to 50% increment in future prospects of income. [Para 10]
iv. Motor Vehicles Act, 1988, S. 166 – Compensation – Permanent disability – Amputation of right leg – Medical expenses – May be required to change his artificial leg from time to time – Rs 1 lakh awarded for medical costs and incidental expenses including future medical costs.
v. Motor Vehicles Act, 1988, S. 166 – Compensation – Permanent disability – Leg amputated – Vegetable vendor aged about 24 yrs – 85% functional disability – Income taken at Rs. 6500/- – Rs 17,90,100 under the head of loss of future income including 50% increase in future – Cost of litigation Rs 25,000 – Medical and incidental costs Rs 1,00,000 – Loss of amenities Rs 75,000 – Loss of marriage prospects Rs 50,000 – Pain and suffering Rs 75,000 – Cost of artificial leg Rs 50,000, thus claimant entitled to total compensation of Rs 21,65,100 with interest @ 9% p.a.
vi. Motor Vehicles Act, 1988, S. 166 – Negligence – Contributory negligence – Claimants while moving on the highway were moving on the middle of the road – Tribunal held claimants also contributed to the accident to the extent of 25% – Set aside – Tribunal arrived at the above conclusion only on the basis of the fact that the accident took place in the middle of the road in the absence of any evidence to prove the same – Therefore, contribution of the appellant claimants in the accident is not proved. [Para 29]
vii. Motor Vehicles Act, 1988, S. 166 – Compensation – Permanent disability – Functional disability – Loss of earning capacity – Manual labour – Court should be sensitive in such cases – Sustained type-3 compound fracture of the right femur, fracture of tibia, fracture of middle shaft tibia and fibula – Dr had stated that the claimant has suffered from permanent disability of 69% to lower limb – High Court took functional disability at 25% – However, while determining the disability of the claimants in motor accidents cases, this Court might be sensitive about the functional disability involved and the nature of the occupation, particularly, if the occupation involves manual labour – High Court erred in determining the functional disability on the lower side – Claimant is a vegetable vendor take his monthly income at Rs 6500 – Functional disability at 35% – Increment on future income at 50% – Multiplier at 18 – Entitled to Rs 7,37,100 [(Rs 6500 × 35/100 + 50/100 × 35/100 × Rs 6500) × 12 × 18] under the head of “loss of future income” – Cost of litigation Rs 25,000 – Pain and suffering Rs 60,000 – Medical and incidental charges Rs 1,00,000 – Loss of amenities Rs 40,000 – Future medical expenses Rs 15,000 – Total Rs 9,77,100. [Para 18, 19, 20, 21]
JUDGMENT
V. Gopala Gowda, J.— Leave granted. This appeal is filed by the appellants questioning the correctness of the common judgment and final order dated 31-10-2011 passed by the High Court of Karnataka at Bangalore in Syed Sadiq v. G. Thippaiah MFA No. 1131 of 2011, decided on 31-10-2011 KAR, urging various facts and legal contentions in justification of their claim.
2. The necessary relevant facts are stated hereunder to appreciate the case of the appellants and also to find out whether the appellants are entitled for the relief as prayed for in these appeals. On 14-2-2008, all the three appellant claimants in the appeals herein were proceeding on the left side of the road by pushing the motorcycle bearing Registration No. KA 16 2404 since it was punctured. When the appellant claimants came near Coper Petrol Bunk, opposite to Jai Hind Hotel, a tractor bearing No. KA 16 T 8219 8220 came from the opposite direction on its right side in a rash and negligent manner and dashed into the motorcycle and the appellant claimants. This resulted in all the appellant claimants sustaining grievous injuries. The appellants filed MV Cases Nos. 149, 147 and 148 of 2010 respectively before the Motor Accidents Claims Tribunal, Chitradurga (for short “the Tribunal”). The Tribunal awarded different awards in the three different appeals which had been heard together by the High Court of Karnataka.
3. Since the injuries suffered by the three appellants are different, we are inclined to decide upon the appeals individually. As far as injuries sustained by the appellants in the road accident are concerned, there is no dispute that the accident occurred on 14-2-2008 due to the rash and negligent driving of the tractor-trailer bearing Registration No. KA 16 T 8219 8220 by its driver. The appeals therefore, are confined to determining whether the quantum of compensation which was enhanced by the High Court from that of the Tribunal is just and proper or whether it requires further enhancement in the interest of justice. We take up the appeals one at a time.
Civil appeal arising out of MFA No. 1131 of 2011 (MVC No. 149 of 2010)
4. It is evident from the material and legal evidence produced on record that the appellant claimant in this appeal had sustained injuries to the lower end of the right femur and his right leg was amputated. Further, he had sustained injury over his left upper arm. The injuries sustained by him and the treatment taken by him are evident from the wound certificate, Ext. P-6; discharge cards, Exts. P-7 and P-8; disability certificate, Ext. P-12; x-ray films, Ext. P-218 and was further supported by oral evidence of the appellant claimant and the doctors examined as PW 1 and PW 4 respectively.
5. PW 4, Dr Rajesh had stated in his evidence that the appellant claimant had suffered disability of 24% to the upper limb and 85% to the lower limb. The Tribunal, however, had considered the disability of the appellant claimant caused to whole body at 30%. The High Court however, taking into consideration the amputation of the right leg of the appellant claimant, determined the disability at 65% without assigning any proper reason for coming to this conclusion. Therefore, we intend to assign our reasons to hold that the High Court has erred in concluding the disability at 65%.
6. This Court in Mohan Soni v. Ram Avtar Tomar (2012-2)166 PLR 420 (SC), 2012 2 SCC 267, has elaborately discussed upon the factors which determine the loss of income of the claimant more objectively. The relevant paragraph reads as under:
“11. In a more recent decision in Raj Kumar v. Ajay Kumar 2011 1 SCC 343 this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paras 10, 11 and 13 of the judgment in Raj Kumar, this Court made the following observations: (SCC pp. 349-50)
‘10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. 2010 10 SCC 254 and Yadava Kumar v. National Insurance Co. Ltd. 2010 10 SCC 341)
***
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.'”
(emphasis in original)
7. Further, the appellant claims that he was working as a vegetable vendor. It is true that a vegetable vendor might not require mobility to the extent that he sells vegetables at one place. However, the occupation of vegetable vending is not confined to selling vegetables from a particular location. It rather involves procuring vegetables from the wholesale market or the farmers and then selling it off in the retail market. This often involves selling vegetables in the cart which requires 100% mobility. But even by conservative approach, if we presume that the vegetable vending by the appellant claimant involved selling vegetables from one place, the claimant would require assistance with his mobility in bringing vegetables to the marketplace which otherwise would be extremely difficult for him with an amputated leg. We are required to be sensitive while dealing with manual labour cases where loss of limb is often equivalent to loss of livelihood. Yet, considering that the appellant claimant is still capable to fend for his livelihood once he is brought in the marketplace, we determine the disability at 85% to determine the loss of income.
8. The appellant claimant in his appeal further claimed that he had been earning Rs 10,000 p.m by doing vegetable vending work. The High Court however, considered the loss of income at Rs 3500 p.m considering that the claimant did not produce any document to establish his loss of income. It is difficult for us to convince ourselves as to how a labour involved in an unorganised sector doing his own business is expected to produce documents to prove his monthly income. In this regard, this Court, in Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. 2011 13 SCC 236, has held as under:
“13. In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a coolie and was earning Rs 4500 per month at the time of the accident. This claim is reduced by the Tribunal to a sum of Rs 3000 only on the assumption that the wages of a labourer during the relevant period viz. in the year 2004, was Rs 100 per day. This assumption in our view has no basis. Before the Tribunal, though the Insurance Company was served, it did not choose to appear before the court nor did it repudiate the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning to be a sum of Rs 3000 per month. Secondly, the appellant was working as a coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant.
14. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time.
15. In the present case, appellant was working as a coolie and in and around the date of the accident, the wage of a labourer was between Rs 100 to Rs 150 per day or Rs 4500 per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs 4500 to Rs 3000 per month. We, therefore, accept his statement that his monthly earning was Rs 4500.”
9. There is no reason in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant claimant. On the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning Rs 6500 per month.
10. Further, it is evident from the material evidence on record that the appellant claimant was 24 years old at the time of occurrence of the accident. It is also established on record that he was earning his livelihood by vending vegetables. The issue regarding calculation of prospective increment of income in the future of self-employed people, came up Santosh Devi v. National Insurance Co. Ltd., (2012-3)167 PLR 803 (SC), 2012 6 SCC 421, wherein this Court has held as under:
“14. We find it extremely difficult to fathom any rationale for the observation made in para 24 of the judgment in Sarla Verma v. DTC, (2009-3)155 PLR 22 (SC), that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naïve to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life.
15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put in extra efforts to generate additional income necessary for sustaining their families.
16. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that the salary of a Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.
17. Although, the wages/income of those employed in unorganised sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the government employees and those employed in private sectors, but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching clothes. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason, etc.
18. Therefore, we do not think that while making the observations in the last three lines of para 24 of Sarla Verma judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30% increase in his total income over a period of time and if he/she becomes the victim of an accident then the same formula deserves to be applied for calculating the amount of compensation.”
Therefore, considering that the appellant claimant was self-employed and was 24 years of age, we hold that he is entitled to 50% increment in the future prospect of income based upon the principle laid down in Santosh Devi case.
11. Further, regarding the use of multiplier, it was held in Sarla Verma v. DTC, (2009-3)155 PLR 22 (SC), which was upheld in Santosh Devi case, as under:
“42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the Table above (prepared by applying Susamma Thomas9, Trilok Chandra10 and Charlie11), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is, M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.”
Therefore, applying the principle of Sarla Verma in the present case, we hold that the High Court was correct in applying the multiplier of 18 and we uphold the same for the purpose of calculating the amount of compensation to which the appellant claimant is entitled to.
12. With respect to the medical expenses incurred by the appellant claimant, he has produced medical bills and incidental charges bills marked as Exts. P-25 to P-201 and prescriptions as Exts. P-202 to P-217 on the basis of which the Tribunal awarded a compensation of Rs 60,000 under the head. However, considering that the appellant might have to change his artificial leg from time to time, we shall allot an amount of Rs 1,00,000 under the head of medical cost and incidental expenses to include future medical costs.
13. Thus, the total amount which is awarded under the head of “loss of future income” including the 50% increment in the future, works out to be Rs 17,90,100 [(Rs 6500 × 85/100 + 50/100 × 85/100 × Rs 6500) × 12 × 18].
14. Further, along with compensation under conventional heads, the appellant claimant is also entitled to the cost of litigation as per the legal principle laid down by this Court in Dr. Balram Prasad v. Dr. Kunal Saha & Ors…. 2014 1 SCC 384. Therefore, under this head, we find it just and proper to allow Rs 25,000.
15. Hence, the appellant claimant is entitled to the compensation under the following heads:
Towards cost of artificial leg Rs 50,000 Towards pain and suffering Rs 75,000 Towards loss of marriage prospects Rs 50,000 Towards loss of amenities Rs 75,000 Towards medical and incidental costs Rs 1,00,000 Towards cost of litigation Rs 25,000
16. Also, by relying upon the principle laid down by this Court in MCD v. Uphaar Tragedy Victims Assn. 2011 14 SCC 481, we find it just and proper to allow interest at the rate of 9% per annum.
17. Hence, the total amount of claim the appellant claimant becomes entitled to is Rs 21,65,100 with interest @ 9% per annum from the date of application till the date of payment.
Civil appeal arising out of MFA No. 1132 of 2011 (MVC No. 147 of 2010)
18. The appellant claimant in this appeal has sustained type-3 compound fracture of the right femur, fracture of tibia, fracture of middle shaft tibia and fibula. The injuries sustained and the treatment taken by the appellant claimant are evident from discharge card, Ext. P-225; photographs marked as Exts. P-227 to P-234; disability certificate marked as Ext. P-236; x-ray films, Ext. P-574 supported by the oral evidence of the claimant and the doctor examined as PW 3 and PW 4 respectively. PW 4 Dr Rajesh had stated in his evidence that the appellant claimant has suffered from permanent disability of 69% to lower limb. The High Court has taken his functional disability at 25%. However, while determining the disability of the claimants in motor accidents cases, this Court might be sensitive about the functional disability involved and the nature of the occupation, particularly, if the occupation involves manual labour. Therefore, we hold that the High Court erred in determining the functional disability of the appellant in the present appeal on the lower side. Since, the appellant claimant in the present appeal is also a vegetable vendor like the appellant claimant in civil appeal arising out of MFA No. 1131 of 2011, we take his monthly income at Rs 6500 on average and for the reasons recorded in that appeal, we determine the functional disability of the appellant claimant in the present appeal at 35%. Considering his age, and based on the legal principle laid down by this Court in the cases mentioned supra, we hold his increment on future income at 50% and the multiplier at 18. Therefore, he is entitled to Rs 7,37,100 [(Rs 6500 × 35/100 + 50/100 × 35/100 × Rs 6500) × 12 × 18] under the head of “loss of future income”.
19. The amount awarded by the Tribunal and the High Court under other conventional heads have not been disputed by the appellant claimant by producing contrary evidence. Therefore, the amount awarded under those heads shall remain constant. Based on the reasoning given by us in the earlier appeal, the appellant claimant is also entitled to the cost of litigation at Rs 25,000.
20. Hence, the appellant claimant is entitled to compensation under the following heads:
Towards pain and suffering Rs 60,000 Towards medical and incidental charges Rs 1,00,000 Towards loss of amenities Rs 40,000 Towards future medical expenses Rs 15,000 Towards cost of litigation Rs 25,000
21. Therefore, the appellant claimant is entitled to a total sum of Rs 9,77,100 with interest @ 9% per annum based on the principle laid down by this Court mentioned supra.
Civil appeal arising out of MFA No. 1133 of 2011 (MVC No. 148 of 2010)
22. The appellant claimant in this appeal has identified himself as a cleaner of lorries by profession. As per the wound certificate, Ext. P-219, it has been established that the appellant claimant has sustained fracture on middle 1/3rd of the right humerus and comminuted fracture at the junction of upper 1/3rd and middle 1/3rd of the right tibia. The injuries sustained by him and the treatment taken by him is evident from the disability certificate marked as Ext. P-221, x-ray film marked as Ext. P-222 which is supported by oral evidence of the claimant and the doctors examined as PW 2 and PW 4 respectively. PW 4 Dr Rajesh has stated in his evidence that the claimant has suffered 22% permanent disability to the upper limb and 29% to the lower limb. The High Court has calculated the functional disability to 13%. We are inclined to hold that the High Court has erred in ascertaining the functional disability to such a low percentage considering that the appellant claimant earns his livelihood through manual labour. It is evident from the material evidence produced on record that the appellant claimant has suffered from comminuted fracture in the accident as a result of which he will not be able to bend, stretch or rotate his right hand. He will also not be able to lift heavy material which is so essential to carry on with his business to earn his livelihood. Therefore, we are inclined to observe that the appellant claimant suffers from a functional disability to the extent of 85%.
23. Further, the appellant claimant has claimed that he has been earning Rs 5000 p.m by working as a cleaner of the lorry. The Tribunal assessed his monthly income at Rs 3000. The High Court, considering his age and his profession as a cleaner, assessed his income at Rs 3500. However, based on the Karnataka State Minimum Wages Rules, 2012-2013, the appellant claimant is entitled to Rs 4246 per month. Since, no written record of his income could be produced before the Court, we take his income, as per Revised Minimum Wages Rule at Rs 4246 rounding it off as Rs 4300 per month. Further, an amount of Rs 700 can be added as daily barter charges. Therefore, his monthly income amounts to Rs 5000.
24. Further, considering that the appellant claimant was 22 years of age, the multiplier applicable to his age group is 18 and also based on the legal principle laid down by this Court in various cases, we hold that he is entitled to 50% increment in future loss of income. Therefore, he is entitled to an amount of Rs 13,77,000 [(Rs 5000 × 85/100 + 50/100 × 85/100 × Rs 5000) × 12 × 18].
25. It is pertinent to note that the appellant claimant in this appeal has produced medical bills for Rs 8000. He was treated as an in-patient for 15 days in a private hospital. Therefore, considering the same, the High Court has awarded a sum of Rs 15,000 under the head of medical and incidental expenses. However, considering the fact that the appellant claimant was also required to have conveyance, nourishment and attendant charges for proper recovery of health, we increase the compensation under this head to Rs 50,000. Further, considering the fracture sustained by the appellant claimant and the evidence produced by the doctor, another Rs 5000 awarded by the High Court towards future expenses is upheld by us.
26. Further, towards loss of amenities, the Tribunal has awarded Rs 10,000. However, considering the disability stated by the doctor and the amount of discomfort and unhappiness he has to undergo in the future life, the High Court has awarded Rs 20,000 under this head. We intend to observe that the amount awarded by the High Court under this head is very meagre and inadequate considering the age and the amount of disability. Therefore, under this head, we award a sum of Rs 50,000.
27. Apart from this, based on the reasoning we have already provided above for the two other appellant claimants, the appellant claimant in this appeal is also entitled to compensation under the following heads:
Towards pain and suffering Rs 60,000 Towards medical and incidental expenses Rs 50,000 Towards loss of amenities Rs 50,000 Towards future expenses Rs 5000 Towards cost of litigation Rs 25,000
28. Therefore, the appellant claimant in this appeal is entitled to a total amount of Rs 15,67,000 with an interest of 9% per annum from the date of application till the date of payment.
Contributory negligence
29. On the matter of extent of contribution to the accident, it is held by the Tribunal that the appellant claimants herein should have taken utmost care while moving on the highway. Looking at the spot of the accident, the Tribunal concluded that the appellant claimants were moving on the middle of the road which led to the accident. Therefore, the Tribunal concluded that though the tractor has been charge-sheeted under Sections 279 and 338 IPC, but given the facts and circumstances of the case, the appellant claimants also contributed to the accident to the extent of 25%. The High Court without assigning any reason concurred with the findings of the Tribunal with respect to contributory negligence. We find it pertinent to observe that both the Tribunal and the High Court erred in holding the appellant claimants in these appeals liable for contributory negligence. The Tribunal arrived at the above conclusion only on the basis of the fact that the accident took place in the middle of the road in the absence of any evidence to prove the same. Therefore, we are inclined to hold that the contribution of the appellant claimants in the accident is not proved by the respondents by producing evidence and therefore, the finding of the Tribunal regarding contributory negligence, which has been upheld by the High Court, is set aside.
30. The appeals are allowed accordingly. The appellant claimant in civil appeal arising out of MFA No. 1131 of 2011 (MVC No. 149 of 2010) is awarded a compensation of amount at Rs 21,65,100. The appellant claimant in civil appeal arising out of MFA No. 1132 of 2011 (MVC No. 147 of 2010) is awarded a compensation of amount at Rs 9,77,100. The appellant claimant in civil appeal arising out of MFA No. 1133 of 2011 (MVC No. 148 of 2010) is awarded a compensation of amount at Rs 15,67,000. All the appellant claimants are entitled to interest @ 9% per annum from the date of application till the date of payment.
31. The name of the erstwhile first respondent has been deleted from the array of parties by order of this Court dated 1-7-201314. The Insurance Company remains the sole respondent in this case. Therefore, we direct the Insurance Company to deposit 50% of the awarded amount with proportionate interest within four weeks from the date of receipt of a copy of this order, after deducting the amount if already paid, in any of the nationalised bank of the choice of the appellants for a period of 3 years. During the said period, if they want to withdraw a portion or entire deposited amount for their personal or any other expenses, including development of their asset, then they are at liberty to file application before the Tribunal for release of the deposited amount, which may be considered by it and pass appropriate order in this regard.
32. The rest of 50% amount awarded with proportionate interest shall be paid to the appellant claimants by way of a demand draft within four weeks. The Insurance Company is further directed to submit compliance report before this Court within five weeks.
Comments 5