Rajasthan High CourtSultan Singh vs The N I C on 23 November, 2011Author:Mohammad RafiqBench:Mohammad RafiqIN THE HIGH COURT OF JUDICATURE FOR 
RAJASTHAN
BENCH AT JAIPUR.

O R D E R

1)	S.B. CIVIL MISC.APPEAL NO.2072/2004. 

Sultan Singh & Ors. 
Vs. 
The National Insurance Co.Ltd. & Ors. 

2)	S.B. CIVIL MISC.CROSS OBJECTION NO.136/2011. 

Sultan Singh & Ors. 
Vs. 
The National Insurance Co.Ltd. & Ors. 
Date of Order :-                November 23, 2011.

HON'BLE MR.JUSTICE MOHAMMAD RAFIQ
Shri Dinesh Kumar Garg for the claimant-appellants. 
Shri Pyare Lal for the respondent-Insurance Co.
******
BY THE COURT:-1)		The appeal has been preferred by the claimant-appellants dissatisfied with the quantum of compensation awarded by the learned Motor Accident Claims Tribunal, Dholpur dated 10/9/2004 whereby, the Tribunal awarded a sum of Rs.2,10,000/- as compensation, out of which, Rs.1,26,000/- awarded in favour of the claimant appellants holding 40% composite negligence on the part of deceased-Neeraj and 60% on the part of the driver of the offending vehicle i.e. the truck.2)		Contention of Shri Dinesh Kumar Garg, learned counsel for the claimant-appellants is that deceased-Neeraj was pillion rider on the scooter being driven by his uncle Shri Govind Singh. It was the Truck bearing No.HR-38/G-3206, which was insured with the respondent insurance company, which hit the scooter being driven by its driver rashly and negligently. Learned Tribunal erred in law while holding 40% composite negligence on the part of deceased-Neeraj and 60% on the part of the truck-driver and awarded a meager amount of compensation of Rs.1,26,000/- in favour of the claimants. It was further argued that the learned Tribunal has arrived at the conclusion of holding the deceased 40% contributory negligence for two reasons. First is that the learned Tribunal in para 7 of the award observed that according to the contents of the first information report, it does not reveal that actually Govind Singh was driving the scooter; rather, it appears that deceased-Neeraj himself was driving the scooter and second is that looking to the nature of injuries sustained by deceased-Neeraj due to which he ultimately died, it cannot at all be accepted that deceased-Neeraj himself was not driving the scooter. Had the scooter was being driven by Govind Singh at the time of accident with the truck, he would have certainly received some injuries, which were rather received by deceased-Neeraj. That apart, when a question was given to Govind Singh in cross-examination, he could not show any injury on his body. Learned counsel in this connection has referred to the contents of the FIR wherein it is mentioned that it was only Govind Singh, who had come to fill the petrol in the scooter at the petrol pump and not his nephew Neeraj for getting the petrol and when they came on the highway on the scooter, truck hit the scooter being driven by the driver in a rash and negligent manner. Resultantly, Govind Singh was thrown away on the other side whereas, Neeraj was crushed by the truck. In the first information report itself it was stated by informant Govind Singh that it was Neeraj unfortunately, who came in front of the truck. The truck was in so high speed that it after hitting the scooter, dashed with the dividers and as a result of which, it was turned turtle. It is also argued that Tribunal was not justified in not awarding any compensation under the head of pain and suffering to mother, father, two brothers and one sister. Deceased was eldest son of the parents i.e. appellants No.1 & 2. Award of Rs.18,000/- cumulatively for pain and suffering and funeral expenses etc. is rather quite low. Deceased was student of 10th standard and his father is having a restaurant, which was also being managed by his son-Neeraj and that his son's contribution to the family would not be merely of Rs.1500/- per month. The appeal therefore be allowed and the compensation be suitably enhanced.3)		Shri Pyarelal, learned counsel appearing for the insurance company has opposed the appeal and argued in his cross-objection that the compensation has been awarded on higher side and it should be reduced. The insurance company should be exonerated from its liability. It was argued that if otherwise, this court is not persuaded to entertain this cross-objection then also, finding of the learned Tribunal holding composite negligence on the part of deceased-Neeraj only to the extent of 40%, may be set-aside. The contributory negligence should be in the ratio of 50 : 50.4)		Upon hearing learned counsel for the parties and perusing the award, I find that the findings recorded by the Tribunal as to the contributory negligence are not based on evidence but rather on inferences. The language of the FIR is not such as has been interpreted by the learned Tribunal. The FIR was lodged by Shri Govind Singh, uncle of deceased-Neeraj within 1½ hours of the incident. It cannot therefore be said that there was any tutoring or manipulation in concocting story or any story was concocted. What he has stated is that he had gone taking with him his nephew Neeraj to the petrol pump for getting the petrol filled in the scooter and after getting the petrol, they came on the highway. Suddenly, a Truck bearing No.HR-38/G-3206, which is insured with the respondent insurance company, hit the scooter being driven by its driver in a rash and negligent manner; in that, the truck was in a very high speed that it after hitting the scooter, dashed with the dividers and resultantly, it was turned turtle. As a result of which, Govind Singh was thrown away on the other side whereas, Neeraj was crushed under the tires of the truck and the scooter was also badly damaged. He in this very FIR has stated that he as a result of the forced hit from the truck, was thrown on the other side at a distance. Merely because, no injury was found proved on his person, it does not mean that he was not driving the scooter and there is no evidence to the contrary by the insurance company. It cannot be a presumption that Neeraj, who was aged only 17 years, would not have managed the affairs of a restaurant. Even otherwise, Tribunal could not proceed on assumption or inferences ignoring the evidence, which has remained unrebutted.5)		Finding of the Tribunal as to the contributory negligence on the part of deceased-Neeraj should therefore be reversed.6)		Coming now to the quantum of compensation, I find that as far as contribution of Rs.1,92,000/- towards loss of dependency on the basis of accepted income of the deceased to be Rs.1500/- per month does not call for any interference; however, mother and father should be held entitled to receive amount of compensation of Rs.10,000/- each per month for pain and suffering (Rs.20,000/-) and two brothers and one sister each should be held entitled to receive compensation of Rs.5000/- (Rs.15,000/-) under this head. A sum of Rs.5,000/- should additionally be awarded for funeral expenses thus in all, Rs.40,000/- (20,000+15,000+5,000) is liable to be enhanced.7)		In the result, the appeal is allowed, whereas the cross-objection is dismissed. The award of the Motor Accident Claims Tribunal, Dholpur dated 10/9/2004 is modified in terms that the finding of the Tribunal as to the contributory negligence on the part of deceased-Neeraj is reversed. The award amount of Rs.2,10,000/- is thus enhanced to Rs.2,32,000/- (1,92,000 + 40,000). Appellants are held entitled to receive interest on the enhanced amount of compensation @7.5% from the date of filing claim petition.(MOHAMMAD RAFIQ), J.ani