UNION OF INDIA Vs. HARBANS KOUR

JUDGEMENT

(1.) THIS judgment will dispose of the two cross appeals, LPA No. 15/95 and LPA No. 5/95 directed against the Single Bench judgment of this court dated 28th April, 1995, passed in CIMA No. 165 of 1993. Shortly put and shorn of details: the facts from which the above two appeals emanate are that one Asha Singh died in a vehicular accident on 13.4.1991. He was plying a scooter which collided with Vehicle No. 89 -E -65834 driven by respondent, Kailash Nath of 57 RCC C/O 56 APO. It is admitted that the Vehicle and the scooter were coming from opposite directions when the collision occurred at R.S. Pura - Jammu road. The deceased succumbed to the injuries on 15.4.1991. Appellants in LPA No. 15/95 are the widow and children of the deceased, who filed an application for compensation before the concerned Motor Accidents Claims Tribunal. The case set by the Appellants was that the accident occurred because of the rash and negligent driving of the respondent, Kailash Nath, driver of the aforesaid Vehicle and, as a result of this accident, the deceased passed away. The Tribunal, after analysing all the evidence lead on behalf of the parties, held that the accident occured because of the rash and negligent driving of the driver, Kailash Nath. The Tribunal assessed a compensation of Rs.2.75 lakhs. While concluding the judgment, the learned Tribunal made a deduction of 25% of the total amount of award for contributory negligence of the deceased. It made a further deduction of 20% on account of uncertainties of life and for lumpsum payment. Out of the assessed compensation of Rs.2.75 lakhs, the learned Tribunal passed the net award for an amount of Rs.1.65 lakhs. Against this judgment the respondents did not choose to file any appeal, but the petitioners before the Tribunal, filed an appeal, CIMA No. 165/95. The learned Single Bench of this Court partially allowed the appeal while holding that there was no contributory negligence of the deceased, so the deductions to the extent of 25% on this account were not justified and he thus set -aside the impugned judgment to the extent of the deduction of Rs. 68,750/ on account of contributory negligence and passed the award to the tune of Rs.2,20,000/ -. This judgment was passed on 28th April, 1995. Against this judgment, the aforementioned two cross appeals have been filed. In LPA No. 5/95, the appellants have challenged both the learned Single Bench Judgment as well as the basic judgment passed by the learned Tribunal dated 29.7.1993 to the extent that the judgments are erroneous in law so far as the deductions of 20% have been made on account of uncertainties of life and making the lumpsum payment. It has been contended in the appeal that once the multiple system has been employed and multiple sixteen has been applied, it already took care of uncertainties of life and the lumpsum payment. Therefore, the deduction on account of uncertainty of life and lumpsum nature of payment was not proper. It has been prayed that the whole compensation, as has been assessed by the learned Tribunal Judge, which comes to Rs.2.75 lakhs, be awarded to the appellants instead of only Rs.2.20 lakhs which as been awarded by the learned Single Bench of this Court. This is one side of the picture.

(2.) ANOTHER side is that the respondents in the original claim petition too have filed LPA No. 5/95. They have challenged the learned Single Bench judgment wherein the award passed by the Motor Accidents Claims Tribunal in Claim petition No. 44/91 has been enhanced from Rs.1,65000/ - to Rs.2,20,000/ -. The appellants in this appeal have in para No. 7 contended that, in fact, no liability for causing of the accident can be fastened on the appellant No.2, but, however, because of non -challenging of the award by the appellants at the initial stage, the appellants are limiting their challenge to the judgment of the learned Single Judge to the extent it has enhanced the award which concept is foreign to the factual position. The whole thrust of the appellants is that the finding of the learned Single Judge, that there is no contributory negligence on the part of the deceased, is erroneous in law and has been made without application of mind. According to the present appellants, the finding of the learned Tribunal Judge that there was a contributory negligence is based on correct appreciation of facts so he deducted 25% for the contributory negligence of the deceased.

(3.) WE have called the record of the Motor Accidents Claims Tribunal and have heard learned counsel for the parties in full. We first take up LPA No.15/95.