SUMITRA DEVI Vs. DINESH KUMAR

JUDGEMENT

(1.) THE appeal is against the dismissal of the petition for compensation for death of a male aged 26 years. He was said to be a Upavaid in medicine having accreditation through an institute in Allahabad to do medical practice. The accident had taken place on 27.11.1991 in a collision with the second respondent's scooter which was driven by the first respondent. The case had not been registered and only after a complaint before the Magistrate on 28.9.1992 was lodged nearly two months after the accident the case was directed to be investigated. The fact of accident itself was not denied. The first respondent admitted that the second respondent's scooter had been left to him for effecting repairs. He was attending to the failure of brakes and when he had taken the vehicle and riding it, he dashed against the scooter driven by the deceased in spite of best care on account of the failure of brakes. The tribunal dismissed the petition on a reasoning that mere evidence by the eye witness PW -2 could not be believed and if there was not even a case registered for two months it was un -believable that the accident had taken place.

(2.) THE tribunal has, in my view, adopted a reasoning which is wholly un -tenable. It has omitted to deal with the admission made by the first respondent himself that the accident had taken place while he was driving the scooter and that his brakes failed. Evidently, it was a case of the respondent putting the vehicle on road which was not road worthy and which was previously known to be defective by having been entrusted to him on a complaint that the brakes were not working. The first respondent ought not to have driven the vehicle on road without attending to the brakes. It was not as if the mistake was not already known. On the other hand, it was a case of the mistake having been specifically informed to the first respondent when he was driving the vehicle. It is a clear case of negligence on the part of the first respondent. The second respondent is the owner and third respondent is the insurer who is bound to take the responsibility in the consequences of the accident resulting in death of the person. The tribunal had assessed Rs.1,43,850/ - by applying differential multiplier of 5 for a dependence of Rs.16,000/ - and Rs.11,000/ - for reducing dependence. The choice of differential multiplier has been adversely criticized by the Supreme Court in Puttamma and others Vs. K.L. Narayana Reddy and another : AIR 2014 SC 706. I would take an average income of the deceased at Rs.3,000/ - apply a deduction of 1/2 and re -determine the compensation as under: -