- (1.) All the appeals arise out of the same accident that resulted in death of a scooterist. The appeal in FAO No.2617 of 1996 is for enhancement of compensation for the death of the scooterist, aged 29 years, where the claimants were widow, two minor children and mother. The Court had assessed the compensation at Rs. 1,15,200/-. The owner is in appeal in FAO No.2412 of 1996 on a plea that the award is wrongly passed against the owner and the liability must have been fastened only on the insurer. The contention was that the accident was a result of deceased himself ramming into a stationary tractor and there was no proof of negligence. Consequently, there is no cause of action for prosecuting the claim. In any event, the driver had a valid driving licence and the Tribunal was in error in relying on an evidence that the endorsement of licence was made subsequent to the accident. The contention of the owner was that even a Clerk, who was examined from DTO's office, did not place any document and merely spoke about the alleged endorsement to drive a scooter as having been made subsequent to the accident. The counsel would place reliance on the document filed in Court and contended that it did not contain the date of endorsement of the driving licence. According to him, the driver had a valid driving licence. There is also a Civil Revision No.4426 of 1999 that challenges the award of compensation for damages to the scooter assessed at Rs. 8,500/-.
(2.) The accident had taken place on 10.05.1995. The averment in the petition was that the claimant was going on the scooter on GT Road and when he reached in the area of village Teora near Teora on the GT Road, the respondent No.1 who was driving the tractor trolley rashly and negligently and without blowing any horn and violating all the traffic rules caused the accident. In evidence, PW2 had narrated that he saw the deceased overtaking him in his scooter, while he himself was riding a cycle. A tractor was being driven ahead of him and the tractor driver suddenly applied the brake and he lent a graphic description of the fact that the collision happened only when the tractor driver suddenly applied the brake and the scooterist rammed against the tractor. The counsel for the owner argued that the recital in the petition that the tractor which was being run on the wrong side must be taken as a vehicle coming from the opposite direction and PW2 himself gave evidence to the effect that the tractor was going ahead of the scooter and the collision took place when the driver of the tractor suddenly applied the brake. I cannot dissect the expression "driving by the driver on the wrong side" to mean that the vehicle was coming from the opposite direction. All the expressions that would constitute a negligent driving are put forth in the petition, namely, of a person, who was driving rashly and negligently without horn, driving on the wrong side and violating all traffic rules. It is typically an inartistic pleading and if we must look for any clarity, it could come only from the evidence of a witness which cannot be said to be inconsistent with pleadings. On the other hand, it explains the pleading in its perspective. The witness's statement was clear that the tractor was going ahead with a trolley attached and it had suddenly applied brake when the scooterist rammed into it. The driver himself had his own version to give that at the relevant time he was not actually driving the tractor but the vehicle had remained parked on the kacha berm of the of the road and the accident had resulted by a recklessly driving of the scooterist. If there were two versions relating to how the vehicle was being driven, I would go with the version given by a person, who spoke about the negligent driving, more particularly, when that was the approach adopted by the Tribunal. But a person who rammed his vehicle from behind ought to be surely taken as a person contributing to the accident. A careful driving of a scooter does not result in collision. Certain amount of negligence ought to be there and I would hold that the Tribunal was not justified in casting the entire responsibility for the accident only on the driver of the tractor. A tractor does not require to sound horn. By the very nature of its size and a trailer on tow, it cannot be driven fast. If it could be driven rashly, any other person using the road at the same time ought to apply appropriate caution not to come by harm. In this case, if there was evidence that scooterist hit him from behind, I will apportion equal responsibility for the accident and hold the deceased to have contributed to the accident by 50%.
(3.) As regards the claims, the contention that the deceased was himself running a trading company called DK Trading Company, apart from the shop where he was working as a Commission Agent. The claimants produced telephone bills that showed a bi-monthly billing of Rs. 6,000 to Rs. 8,000/- for two consecutive billing periods. This was to lend support for a claimant's plea that he was a trader and he was earning about Rs. 8,000/- per month. The Tribunal, while considering this evidence, reasoned that he was not an income tax assessee. He had also no saving bank account or any amount with the post office. The telephone bills showed that the bills had been raised in his name. The telephone bills could not prove the nature of business activity that he had. The Tribunal, therefore, took the income of the deceased at Rs. 1,000/- per month and assessed the contribution to the family at Rs. 600/- per month. I am of the view that the Tribunal's assessment of income was erroneous. If the wife was giving evidence that her husband was doing his own business as DK Trading Company and was also giving a statement that her husband was a Commission Agent having a shop and if her evidence must be discounted at all, it could be only about her assessment that her husband was earning about Rs. 8,000/- per month. This is on account of the fact that he was not an income tax assessee. There was also evidence that he had shares worth about Rs. 50,000/- and he had investment in some private Company called Golden Forest Company. The counsel for the Insurance Company points out that even the scooter that he was driving was not his own and it had been purchased in the name of his father by borrowing from a bank. He was supporting a family of widow, minor children and mother. I am prepared to assume that he was earning Rs. 5,000/- per month. In the the decision of the Supreme Court in Reshma Kumari and others Versus Madan Mohan and others, decided on 02.04.2013, the question raised was whether a determination of the multiplicand under 1988 Act provided for criterion particularly as regards determination of future prospects. The Supreme Court was reaffirming the principle of law laid down in Sarla Verma Versus Delhi Transport Corporation and another, 2009 6 SCC 121 with reference to future prospect and observed that the Court should have appropriate regard to the observations of the Supreme Court in Sarla Verma's case in paragraph 24. After this decision in a still later yet another judgment delivered in Rajesh and others Versus Rajbir Singh and others in Civil Appeal No.3860 of 2013, dated 12.04.2013, the Supreme Court was looking for a dilution of standards of proof and has held that even to persons in unorganized sector, who are self-employed, there ought to be a prospect of increase. The Court was reaffirming what was stated in Santosh Devi Versus National Insurance Company Limited and others, 2012 2 RCR(Civ) 882 that even a self-employed person should be provided with a prospect of increase by 50% if he was less than 40 years of age. I take the average income at the death at Rs. 5,000/- and take the prospect of increase at another 50% and take the average income at Rs. 7,500/-per month. I will apply a 1/4 th deduction and take the contribution to the family at Rs. 5,625/- per month. I will adopt a multiplier of 17 and take the loss of dependency at Rs. 11,47,500/-. Although there have been recently attempts to revisit Sarla Verma to allow for a higher compensation for loss of consortium and loss of love and affection, considering the fact that the accident took place 1995, I will take the conventional head as was normally understood and provide Rs. 10,000/- for loss of consortium and Rs. 5,000/- for each of the minor children for loss of love and affection. I will also provide for Rs. 5,000/- for funeral expenses and Rs. 2,500/- for loss to estate. On the whole, the total compensation would be Rs. 11,75,000/-. Consistent with my finding that the claimant himself had contributed to the accident, I will make abatement of 50% of the amount as assessed and take the amount liable to be paid at Rs. 5,87,500/-. This amount shall be divided amongst all the claimants, namely, widow, minor children and mother in the ratio of 2:2:2:1.;