BANWARI LAL Vs. NASIR HUSSAIN

JUDGEMENT

(1.) THIS appeal has been filed by the claimants for enhancement of compensation and for reversal of finding of contributory negligence recorded by the learned Motor Accident Claims Tribunal, Tonk vide award dt. 17.2.1997. Shri Sandeep Mathur, learned counsel for the appellants has made three fold submissions. His first submission is that since there are six claimants hence as per the judgment of Supreme Court in Sarla Verma & Others vs. Delhi Transport Corporation & Another, : (2009) 6 SCC 121, 1/4th should have been deducted towards the own expenses of the deceased whereas, in the instant case, leaned Tribunal has deducted 1/3rd. His second argument is that the driver could not have been held negligent of contributory negligent to the extent of 50% because he was driving the car, which had hit the truck from behind and the accident took place because truck driver suddenly stopped the truck and truck was halted in the middle of the road on its left side. Truck did not give indication from the backlight. Backlight indicators were not properly working. In this connection, learned counsel referred to the statement of AW3 -Ranveer Singh. He has also cited the Division Bench judgment of this Court in Sohan Lal vs. Balswaroop, : 1987 ACJ 113 and argued that in that case a car hit a stationery truck from behind. Contributory negligence of the car driver was held to be 25%, whereas truck driver was held responsible to the extent of 75%. It was argued that in that case, negligence may be more on the side of the truck driver because he was running the truck, which was suddenly stopped without proper indication. His third submission is that the learned Tribunal erred in law while computing Rs.1500/ - deducted 1/3rd income of the deceased, whereas it should be Rs.1700/ - (Rs.1200 + Rs.500/ -) per month and after making deduction of 1/ 4th, the amount should be 1800 -450 -1350 and 750 -187 -563/ - (1350 + 563 -1913).

(2.) LEARNED counsel for the respondents has opposed the appeal and argued that in view of the statement that has been given by AW3 is concerned, that witness has admitted that he was sleeping in the backside of the car, which means that he woke up after the incident took place in that, he could not have witnessed whether the backlights of the truck were not functioning or the indication was not given by the truck before applying the break. Even otherwise, this witness has admitted that speed of the truck was 50 kmph. and speed of the car was between 40 -45 kmph. That means that neither of the vehicle were running in a high speed. Once the truck was halted, the car driver would have to be careful, therefore would be in a position to immediately apply the break and control his vehicle. The fact that in such a low speed, car could not be stopped, proves that car driver was not exercising proper care and that he was not maintaining proper distance.

(3.) COMING now to the other arguments with regard to 1/3rd deductions, in view of judgment of Supreme Court in Sarla Verma & Others vs. Delhi Transport Corporation & Another, : (2009) 6 SCC 121 in the event of number of dependents being four to six, only 1/4th amount should be deducted towards self expenses of the deceased whereas, in the present case, 1/3rd amount has been wrongly deducted. By maintaining the award of compensation on all other non -pecuniary heads, the award deserves to be enhanced. In the result, the appeal is allowed in part. The award passed by the Motor Accident Claims Tribunal, Tonk dt. 17/2/1997 is modified in the following terms: -