SARLA DIXIT Vs. BALWANT YADAV

JUDGEMENT

(1.) THE appellants, who were the original claimants in Claim Petition No.9 of 1976 before the Motor Accidents Claims Tribunal, Gwalior, have felt aggrieved by the order passed by the High Court of Madhya Pradesh, Jabalpur, Bench Gwalior in civil Misc. Appeal No. 174 of 1977 by which, according to the appellants, the High Court only marginally enhanced the compensation payable by Respondents 1 and 2 to the appellants. They have obtained special leave to appeal under Article 136 of the Constitution of India from this Court and that is how this appeal was placed for final hearing before us.

(2.) A few relevant facts leading to these proceedings may be noted at the outset. Appellant 1 is the widow of late Captain Rama Kant Dixit who died on 16.3.1975 in a road accident. Appellant 2 was the minor daughter of Appellant 1 who by now has become major as she was aged 14 years in 1985 when petition for special leave to appeal was moved in this Court. It is the case of the appellants that late Capt. Rama Kant Dixit was hit by the offending truck owned by Respondent 1 which was driven at the relevant time by Respondent 2. The truck was insured against third party risk by Respondent 3. that on the relevant date of the accident the deceased was aged 27 years and was serving as Captain in Indian Army. He was going on 16.3.1975 at about 11.00 a.m. from Chandra Prasth Colony side towards Mall Road, Morar, within the city of Gwalior. That at that time Respondent 2 was driving the aforesaid truck and was coming from the side of Gola -Ka -Mandir and was proceeding towards at locality known as J and K. The said road was a public road admeasuring 25 ft. in width and was running from west to east, the truck was proceeding from west to east going towards eastern side where locality J and K was situated. On the said road intersection No.7, another public road, was proceeding from north to south and it was known as Indraprastha Road. The deceased at the relevant time was driving a scooter carrying a pillion -rider, appellants' Witness 7, one Ramji Sharma. It is the case of the appellants that while the scooter had entered the intersection and was proceeding southwards on the said road Respondent 2 driving the truck from the western side came in high speed and dashed against the scooter resulting in instantaneous death of Appellant 1's husband Capt. Rama Kant Dixit. On account of the said accident the appellants having lost the sale breadwinner filed the aforesaid claim petition before the Gwalior Tribunal under section 110 -A of the Motor Vehicles Act, 1939. In the said claim petition originally Appellant No.1's mother -in -law, that is, mother of deceased Rama Kant Dixit was also joined 4s one of the claimants but pending the proceedings, she expired and the appellants continued the claim petition also as her heirs with the result that thereafter remained as claimants only the present two appellants. The claimants putforward total claim of Rs. 6,12,524/ - on various heads against the respondents. However, the Tribunal after computing the compensation payable to the appellants sliced it down by 75% on the ground that deceased Rama Kant was guilty of contributory negligence to the extent of 75% and the truck driver was negligent only to the extent of 25% and awarded in all Rs. 42,569/ - to the appellants. Respondents 1 and 2 were made liable to make good the said amount. Respondent No.3, the insurance company was exonerated by the Tribunal as it was found that at the relevant time the offending truck was being driven by Respondent 2 who was not having any driving licence. The appellants being aggrieved by the said award of the Tribunal preferred the aforesaid appeal before the High Court of Madhya Pradesh, Jabalpur, Bench Gwalior. It may be noted that so far as Respondents 1 and 2 were concerned they preferred Cross First Appeal No. 178 of 1977 challenging the award of the Tribunal against them and also to the extent Respondent 3 was exonerated of its liability to meet the awarded claim. Appellants did not press their challenge to the finding of the Tribunal exonerating Respondent 3, the insurance company, of its liability to meet the claim of the appellants. So far as Respondents 1 and 2 are concerned, their challenge to the award of the Tribunal exonerating Respondent 3, the insurance company, was rejected by the High Court. Consequently, the only contest in appeal before the High Court centered round the question about the computation of proper compensation to be awarded to the appellants which in its turn also included the question whether any amount could be sliced down from the computed compensation on the ground of contributory negligence of deceased Rama Kant.

(3.) IN the present appeal learned counsel for the appellant -claimants vehemently contended that the award of compensation as granted by the High Court In appeal was too much on the lower side. That the High Court had not applied the correct principles in computing compensation in such fatal accidents' cases and that once it was held that the accident was caused all account of sale negligence of Respondent 2, driver of the truck, looking to the young age of the deceased and his future prospects in life the High Court should have granted appropriate compensation to the appellants. That award of Rs. 54,000/ - was to say the least extremely conservative and was too low. On the other hand, learned counsel for Respondents 1 and 2 tried to support the award of compensation as granted by the High Court and while supporting the same learned counsel for the respondents also sought to challenge the finding of the High Court that deceased Rama Kant was not guilty of any contributory negligence. It was tried to be submitted that the Tribunal was right in taking the view that deceased Rama Kant was guilty of contributory negligence to the extent of 75% and consequently in any case the amount awarded by the High Court was not required to be enhanced, even though it may not be reduced as there is no cross -appeal by Respondents 1 and 2. So far as the exoneration of Respondent 3, the insurance company, is concerned, the said finding reached by the Tribunal as well as the High Court could not be assailed by Respondents 1 and 2 as they have not filed any cross -appeal before this Court challenging that part of the appellate decision rendered by the High Court against them.