Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7368 OF 2013

(Arising out of SLP (C) No. 31402 of 2011)

MINU ROUT & ANR. … APPELLANTS

VS.

SATYA PRADYUMNA MOHAPATRA & ORS. … RESPONDENTS

J U D G M E N T

V. Gopala Gowda, J.

Leave granted.

2.This appeal is filed by the appellants who were claimants

before the Additional District Judge-cum-4

th

MACT,

Jagatsinghpur, Odisha (in short ‘the Tribunal’) in MAC case

No.6 of 2005, questioning the correctness of the judgment

and award dated 27.07.2011 passed by the High Court of

Orissa, Cuttack in MACA No. 594 of 2010, wherein it has

affirmed the judgment and award of the Tribunal holding

Page 2 C.A.@ SLP (C) No. 31402 of 2011

that the award of compensation of Rs.2,00,000/- in favour

of the appellants along with interest at the rate of 6% per

annum from the date of filing of the claim application till

actual payment, is legal and valid and the same is not

vitiated either on account of impropriety or illegality.

The correctness of the same is challenged in this appeal

urging certain relevant facts and grounds.

3. Brief facts of the case are mentioned hereunder for the

purpose of appreciating the case and to examine whether the

appellants are entitled for enhancement of compensation

claimed by them in this civil appeal. The first appellant

is the wife of the deceased Susil Kumar Rout and the second

appellant is the son of the deceased (minor at the time of

the accident). On account of a head on collision between

the car of the deceased bearing registration No. OR 09 C

6463 and a truck bearing registration No. OR 09 C 7165 on

National Highway 5 near Uraili Chhaka on 08.11.2004, the

deceased sustained injuries and was declared brought dead

at Jajpur Hospital. It is the case of the appellants that

the road was wide and spacious and the accident was due to

the rash and negligent driving of the driver of the

offending truck. It is claimed by the appellants that at

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the time of the accident, the deceased was having good

health and was earning a sum of Rs.5000/- per month which

was mostly contributed to the appellants for their

livelihood.

4. During the time of hearing, the owner of the truck was

arrayed as a party and was served with notice but he

remained absent and did not contest the proceedings.

Respondent No. 1, the driver also did not file any counter

statement despite notice being served on him and he was set

ex-parte. Respondent No.2, the New India Assurance Company

filed its statement of counter opposing the claim of the

appellants taking the plea that the claim petition is not

maintainable and the claim is barred by limitation. The

averments regarding the age and income of the deceased were

denied, and so also, the averments regarding the manner in

which the accident occurred as described in the claim

petition. It was pleaded by the Insurance Company that the

averments made by the appellants in the claim petition

regarding the manner in which the accident took place are

false and fabricated. They have claimed that the accident

was not due to sole negligence of the driver of the

offending truck, by placing strong reliance upon the

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charge-sheet filed by the Dharmasala police, who seized

both the vehicles. Therefore, it is stated that both the

drivers of the car and the truck were responsible for

causing accident amounting to contributory negligence on

the part of the deceased Susil Rout. The accident occurred

on account of head on collision between the two vehicles.

Due to the death of the deceased- husband of the first

appellant, the charge-sheet submitted against him was

deleted.

5. Four issues were framed by the Tribunal on the basis of

the pleadings and the case went for trial on behalf of the

appellants. The first appellant was examined as PW-1. In

support of their claim, she produced and marked the

documents namely, Exh.1 charge-sheet filed in GR 114 of

2004 before the S.D.J.M., Exh.2 three seizure lists,

Exh.3 Zimanama, Exh. 4 inquest report, Exh.5 post mortem

examination report and Exh.6 the copy of driving licence of

the deceased. Apart from her, three other eye witnesses

were examined, and they supported the claim of the

appellants. None were examined on behalf of the Insurance

Company to prove its case before the Tribunal. The

Tribunal, on the basis of appreciation of pleadings and

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evidence on record, has answered the issue Nos. 1, 2 and 3

together and partly accepted the case of the appellants.

The evidences of PW-2 and PW-4 are taken into consideration

by the Tribunal and recorded the finding holding that the

appellants did not produce FIR but on the other hand they

have suppressed the same. The Tribunal placed reliance

upon the charge-sheet-Exh. 1 and other documentary evidence

referred to supra and held that due to negligence of both

the drivers of the vehicles, there was a head on collision

of both the vehicles and the accident occurred. The

appellants have placed strong reliance on the documents

Exhs.1 to 5 produced by them in their evidence after

adverting to the fact that neither the owner of the car nor

the driver of the truck came forward to adduce evidence to

prove the plea taken by the Insurance Company that there

was contributory negligence on the basis of the documentary

evidence on record and the so called admission of PW-4. The

Tribunal has recorded the finding of fact on the

contentious issue No. 1, and held that the accident

occurred due to head on collision between the two vehicles

and both the drivers are equally responsible for the

occurrence of the accident. Therefore, the Tribunal

recorded a finding of fact in this regard and held that

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appellants who are the legal heirs of the deceased are

entitled to get compensation to the extent of 50% for the

fault of the offending truck and held that the owner of the

truck and the Insurance Company both are liable to pay 50%

of the compensation to the appellants. Accordingly, issue

Nos. 2 and 3 were also decided in favour of the appellants.

The Tribunal quantified the compensation accepting the age

of the deceased as 35 years on the basis of post mortem

examination report - Exh.5 and applied multiplier of 16 to

the multiplicand to quantify the loss of dependency by

taking the monthly salary of the deceased at Rs.3,000/- in

the absence of documentary evidence. Out of this amount,

1/3

rd

was deducted towards personal expenses of the deceased

and the amount was quantified at Rs.3,84,000/-. Out of this

amount again, 50% was deducted towards alleged contributory

negligence of the deceased husband of the first appellant

and the Tribunal awarded Rs.1,92,000/- towards the loss of

dependency. To this amount, under the conventional heads,

Rs.5000/- and Rs.3000/- was awarded towards funeral

expenses and loss of estate, love and affection

respectively and thereby in total, a compensation of

Rs.2,00,000/- with interest at the rate of 6% per annum was

awarded to the appellants. The appellants were aggrieved by

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the inadequate compensation awarded by the Tribunal in its

judgment. The correctness of the same was questioned by

them by filing an appeal before the High Court seeking

enhancement of compensation. The High Court has passed a

cryptic order without adverting to and appreciating the

pleadings and evidence, and assigning any reason whatsoever

to hold that the reasons assigned by the Tribunal on the

contentious issue Nos. 1 and 2 do not suffer from

impropriety and illegality. The correctness of the same is

challenged in this appeal urging the following grounds.

6. It is contended by the learned counsel for the

appellants that the High Court has not considered the

evidence produced on record to show that the accident took

place on account of rash and negligent driving of the

driver of the truck, which is proved by examining the three

eye-witnesses PW-2 to PW-4. The Tribunal, without

considering the testimony of the eye witnesses has

erroneously placed reliance upon Exh.1 the charge-sheet

which was filed against both the drivers of the car as well

as the offending truck. Further, it has held that there is

50% contributory negligence on the part of the deceased.

PW-3 was not examined by the police during the course of

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investigation and PW-2 had stated in his evidence that the

car was also driven in high speed. It is urged by the

learned counsel for the appellants that the Tribunal,

without there being any rebuttal evidence adduced by either

the owner of the truck or his driver or any other

independent witness to prove the alleged fact of

contributory negligence on the part of the deceased, has

erroneously recorded the finding of fact on the contentious

issue No. 1 and held that there is contributory negligence

on the part of the deceased. Therefore, it is urged by the

learned counsel that the approach of the Tribunal in

appreciating the evidence on record without there being any

evidence on record adduced by the Insurance Company about

the negligence of the deceased is erroneous. The Tribunal

has placed reliance on the charge-sheet filed against both

the deceased and the driver of the offending vehicle and

has held that there was contributory negligence of the

deceased which resulted in head on collision between the

two vehicles. This fact is not established by producing any

evidence by the Insurance Company availing the defence of

the insured. PW-1 who was traveling in the car has narrated

how the accident occurred. The other eye witnesses who have

witnessed the accident have also deposed in favour of the

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appellants. They have stated that on account of rash and

negligent driving of the driver of the offending truck, the

accident took place. In fact, PW-2 has stated in his

evidence that he was going to his village on his bicycle

and the accident took place within a distance of 15 feet

away from him. Two other persons who have witnessed the

accident were examined in the case in support of the claim

of the appellants. It is urged in their evidence that they

had helped the injured persons by shifting them to the

Jajpur Hospital. PW-3, who is a betel shop owner, whose

shop is situated near the place of accident, has stated in

his evidence that there were six persons in the car and

that he was not examined by the police. PW-4 deposed that

he had seen the accident from a little distance from market

where 10 to 20 persons were present at that time. He has

stated in his evidence that the truck was in a high speed

and there were six persons inside the car who sustained

injuries. The driver of the car sustained grievous

injuries and was conscious when he was taken to Jajpur

Hospital on a trekker and later succumbed to injuries. The

evidence of this eye witness has not been properly

considered both by the Tribunal and the High Court, while

recording the finding on the relevant contentious issue

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Page 10 C.A.@ SLP (C) No. 31402 of 2011

No.1. Therefore, the findings recorded on the issue No.1 by

the Tribunal is erroneous in law, and the same concurred

with by the High court without re-appreciating evidence on

record, and therefore, is liable to be set aside. The

compensation awarded by the Tribunal towards the loss of

dependency was at Rs.3,84,000/- for the reason that the

appellants did not produce documentary evidence to prove

the monthly income of the deceased at Rs.5000/- as claimed

by them. Therefore, the Tribunal has taken Rs.3000/- per

month as salary of the deceased, even though he was

entitled for more than Rs.6000/- per month as the job of a

driver is a skilled job. The aforesaid relevant fact

should have been taken into consideration by the Tribunal

in the absence of documentary evidence placed on record to

quantify the reasonable compensation. The Tribunal was

required to consider the claim of the appellants by taking

reasonable amount towards the monthly salary for which the

deceased was entitled to in law and on that basis the

Tribunal should have quantified and awarded just and

reasonable compensation towards loss of dependency. That

has not been done in the case in hand by the Tribunal.

Therefore, it is urged by the learned counsel that the

Tribunal has committed an error on fact by taking Rs.3000/-

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Page 11 C.A.@ SLP (C) No. 31402 of 2011

as monthly salary of the deceased for determination of

multiplicand by ignoring the fact that the job of a driver

is a skilled job. The Tribunal should have taken Rs.6000/-

per month as the salary of the deceased and 1/3

rd

should

have been deducted from his monthly salary towards his

personal expenses.

7. Out of the total compensation of Rs.3,84,000/- under the

head loss of dependency, 50% was deducted on the ground of

equal contributory negligence on the part of the deceased

and the Tribunal has erroneously awarded Rs.1,92,000/-

towards the loss of dependency. It is further contended

that the aforesaid legal contentions urged on behalf of the

appellants are not examined by the High Court while

exercising its appellate jurisdiction. It has passed a

cryptic order without re-appreciating the facts, legal

evidence on record and law on the question. Therefore, it

is contended that the impugned judgment is vitiated both on

facts and law and hence, the same is liable to be set

aside.

8. The learned counsel on behalf of the Insurance Company

has sought to justify the impugned judgments of both the

Tribunal as well as the High Court contending that the

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Page 12 C.A.@ SLP (C) No. 31402 of 2011

Tribunal being a fact finding authority, on proper

appreciation of both oral and documentary evidence,

particularly, the evidence of PW-3 and PW-4 who were eye

witnesses, and have deposed that there was contributory

negligence, has rightly affirmed so. The PW-2, who has stated

in his evidence that the car was coming in a speed and there

was a head on collision between the two vehicles, on the

basis of documentary evidence Exh.1 the charge-sheet, the

finding of fact recorded by the Tribunal, regarding

contributory negligence on the part of the deceased is based

on proper appreciation of facts and legal evidence.

Therefore, the same cannot be termed as erroneous and does

not call for interference by this Court. Further, it is

urged that the quantum of compensation awarded by the

Tribunal under the heading of loss of dependency at

Rs.1,92,000/- in the absence of documentary evidence to prove

the monthly income of the deceased, is legal.

9. On the basis of the rival factual and legal contentions

urged by the learned counsel on behalf of the parties, the

following points would arise for consideration of this Court:

1. Whether the finding of fact recorded by

the Tribunal on the contentious issue No.1

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Page 13 C.A.@ SLP (C) No. 31402 of 2011

holding that contributory negligence on the

part of the deceased driver Susil Rout and

award of compensation at Rs. 1,92,000/-, the

same being affirmed by the High Court in its

judgment, is erroneous in law and warrant

interference in this appeal?

2.Whether the appellants are entitled to

enhanced compensation?

3. What award?

Answer to point No.1 :

10. This point is required to be answered in favour of the

appellants for the following reasons:-

It is an undisputed fact that the accident took place on

08.11.2004 at about 11.45 p.m on account of head on collision

between truck bearing registration No. OR09-C-7165 and the

car driven by the deceased bearing registration No. OR 09-C-

6463. The Jajpur Police Station has registered FIR against

both the drivers of the offending vehicle and the car. After

investigation of the case, charge-sheet Exh.1 GR 114 of 2004

was filed before the S.D.J.M Jajpur against the first

respondent and the deceased, and on account of his death the

case was abated and therefore, the Tribunal has committed

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Page 14 C.A.@ SLP (C) No. 31402 of 2011

error in law in coming to the conclusion in the absence of

rebuttal evidence that there was contributory negligence of

50% on the part of the deceased.

11. The case of the appellants is that the accident took

place on account of rash and negligent driving of the

offending truck by its driver. The offending truck was coming

from opposite direction to the car. In the car, there were

six persons traveling including the first appellant. The

first appellant was examined as P.W.1 and other three eye

witnesses were also examined as P.W.2 to P.W.4, who supported

the version of P.W.1. They have narrated in their evidence

that the accident occurred on 8.11.2004. P.W.2 has stated in

his evidence that the accident took place within 15 feet away

from the place, when he was going to his village in his

bicycle. Two other eye witnesses were also examined as P.W.3

and P.W.4 who have also deposed before the Tribunal stating

that Susil Rout got grievous injuries on account of the

accident and was shifted to the Jajpur Hospital, where he was

declared dead. They have also deposed that the occurrence of

the accident was on account of rash and negligent driving of

the truck. There was head on collision between the offending

truck and the car.

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Page 15 C.A.@ SLP (C) No. 31402 of 2011

12. P.W.3 was a betel shop owner, whose shop is situated

near the spot of the accident. Though he was not examined by

the Investigating Officer in the police case he is examined

before the Tribunal whose evidence is required to be accepted

for the reason that the same is not rebutted by the

respondents. P.W.4 has stated in his cross examination that

he saw the accident from a little distance from the market

place, where about 10 to 20 persons were present. He has

further deposed that the truck was in a high speed and the

people traveling in the car sustained injuries and the driver

of the car Susil Rout suffered grievous injuries and

succumbed to the same. He was conscious when he was taken to

the Jajpur Hospital on a trekker. The Tribunal, on

appreciation of the oral and documentary evidence, has

recorded the erroneous finding by placing strong reliance

upon the charge-sheet-Exh.1 without considering the fact that

the criminal case was abated against the deceased and

further has made observation in the judgment that the

appellants had not produced the FIR. Therefore, it has held

that there was 50% contributory negligence on the part of the

deceased driver in causing accident. The Tribunal ought to

have seen that non production of FIR has no consequence for

the reason that charge sheet was filed against the truck

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Page 16 C.A.@ SLP (C) No. 31402 of 2011

driver for the offences punishable under Sections 279 read

with Section 302 of IPC read with the provisions of the M.V.

Act. The Insurance Company, though claimed permission under

Section 170(b) of the Motor Vehicles Act, 1988 from the

Tribunal to contest the proceedings by availing the defence

of the owner of the offending vehicle, it did not choose to

examine either the driver of the truck or any other

independent eye witness to prove the allegation of

contributory negligence on the part of the deceased Susil

Rout on account of which the accident took place as he was

driving the car in a rash and negligent manner. In the

absence of rebuttal evidence adduced on record by the

Tribunal, the Tribunal should not have placed reliance on the

charge-sheet-Exh.1 in which the deceased driver was mentioned

as an accused and on his death; his name was deleted from the

charge sheet. The Tribunal has referred to certain stray

answers elicited from the evidence of P.W.2 and P.W.3 in

their cross-examination and placed reliance on them to record

the finding on issue no.1. For the aforesaid reasons, the

findings and reasons recorded by the Tribunal on the

contentious issue No.1 holding that there is contributory

negligence on the part of the deceased driver in the absence

of legal evidence adduced by the Insurance Company to prove

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the plea taken by it that accident did not take place on

account of rash and negligent driving of the truck driver is

erroneous in law. The Tribunal has accepted the part of oral

evidence of the eye witnesses regarding the scene of accident

and it has erroneously placed reliance upon the charge-sheet-

Exh.1, which was filed against the driver of the offending

truck and deceased to hold there was contributory negligence

on his part by ignoring the fact that the criminal case

against the deceased was abated. Therefore, we have to hold

that the finding of fact recorded on issue No.1 by the

Tribunal and affirmed by the High Court in the impugned

judgment, is erroneous for want of proper consideration of

pleadings and legal evidence by both of them. Accordingly,

we have answered point No.1 in favour of the appellants in so

far as the finding recorded by the Tribunal on the question

of contributory negligence of 50% on the part of the deceased

is concerned.

Answer to point Nos. 2 and 3 :

13. The appellants claimed compensation under the heading

of loss of dependency as they were all dependents upon the

earnings of the deceased Susil Rout. It is an undisputed

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fact that Susil Rout was working as a driver of the car which

is a skilled job. Appellants have stated in the claim

petition and in the evidence of PW-1 that the deceased was

earning Rs.5,000/- per month. The oral evidence of PW-1 is

not accepted by the Tribunal, solely for the reason that the

appellants did not produce documentary evidence to prove the

monthly salary of the deceased as Rs.5,000/- per month as

claimed by them. However, it had taken monthly income of the

deceased at Rs.3,000/-, for the purpose of determining the

multiplicand. Out of Rs.3,000/- p.m., 1/3

rd

amount was

deducted towards personal expenses of the deceased and

arrived at Rs.3,84,000/- towards loss of dependency. Out of

that compensation, 50% was deducted towards contributory

negligence on the part of the deceased and Rs.1,92,000/- was

awarded under the above heading. The compensation awarded by

the Tribunal is approved by the High Court, which is not only

erroneous in law but also suffers from error in law. The

Tribunal ought to have taken the salary of the deceased

driver at Rs.6,000/- by taking judicial notice of the fact

that the post of a driver is a skilled job. Though the claim

of the appellants is Rs.5000/- as monthly salary of the

deceased for the purpose of determining the loss of

dependency, the actual entitlement of the salary of the

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deceased should have been taken at Rs.6000/- per month by the

Tribunal for awarding just and reasonable compensation, which

is the statutory duty of the Tribunal and the Appellate

Court. In view of the law laid down by this Court in

Santosh Devi vs. National Insurance Company Ltd. & Ors.

1

; 30%

of future prospects of the deceased should be added to the

monthly income. If 30% is added to the monthly income, it

would amount to Rs.7,800/- p.m. From the same, 1/3

rd

should

be deducted towards the personal expenses of the deceased,

then the remaining amount would come to Rs.5,200/- per month.

The same is multiplied by 12 amounting to Rs.62,400/- which

would be the multiplicand. The same must be multiplied by

16 multiplier as the Tribunal has taken the age of the

deceased at 35 as mentioned in the post mortem report, which

is produced as Exh.5. According to the decision of this Court

in Sarla Verma vs. Delhi Transport Corporation

2

, the

multiplier of 16 taken by the Tribunal for computation of

loss of dependency is correct. If the 16 multiplier is

applied to the multiplicand of Rs.62,400/-, it comes to

Rs.9,98,400/- which amount is awarded towards the loss of

dependency of the appellants. We have answered point No.1 in

favour of the appellants holding that the finding recorded by

1

2012 (6) SCC 421

2

(2009) 6 SCC 121

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the Tribunal that there was 50% contributory negligence of

both the drivers of the offending truck and the deceased, is

erroneous and further 50% deduction out of the total loss of

dependency compensation determined by the Tribunal is not

correct. Therefore, we have to hold that the appellants are

entitled to the full amount of Rs.9,98,400/-. Further, the

Tribunal has erroneously awarded a sum of Rs.5,000/- for

funeral expenses without taking into consideration the actual

amount required to be spent towards funeral expenses and

obsequies ceremonies. The Tribunal has also inadequately

awarded Rs.3,000/- towards loss of love and affection. The

Tribunal also erred both on facts and in law as it has

completely ignored the fact that the deceased died leaving

behind him the first appellant-the widow, his mother and two

minor children, who have lost the love and affection of their

father. Therefore, this Court, after taking into

consideration all the expenses incurred for the funeral and

sudhi ceremonies and towards loss of love and affection by

the surviving child and the first appellant wife, by applying

the decision in the case of Kerala State Road Transport

Corporation vs. Susamma Thomas

3

, awards Rs.50,000/- which is

just and reasonable under the conventional heads. If

3

(1994) 2 SCC 176

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Rs.50,000/- is added to the compensation awarded for the loss

of dependency, the total compensation comes to

Rs.10,48,400/-. The Insurance Company is liable to pay the

same as the offending vehicle is insured with it and the same

is an undisputed fact. The Insurance Company is also liable

to pay interest at the rate of 9% per annum, from the date of

application till the date of payment in view of the decision

of this Court in Municipal Council of Delhi vs. Association

of Victims of Uphaar Tragedy

4

.

14. Accordingly, we allow the appeal in the following

terms:

I) The impugned judgments and awards of

the Tribunal and the High Court are set aside.

II) We award Rs.10,48,400/ with 9%

interest per annum payable from the date of filing the

application till the date of payment.

III)The compensation awarded shall be apportioned

between the appellants - Minu Rout and Sumit Kumar

Rout, equally as the remaining appellants Ratnamani

Rout and Rohit Kumar Rout died during the pendency of

the proceedings and their names have been deleted by

the High Court of Orissa on 22.8.2011.

4

(2011) 4 SCC 481

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IV)We direct the Insurance Company to deposit 50% of

the awarded amount with proportionate interest in any

of the Nationalized Bank of the choice of the

appellants for a period of 3 years. During the said

period, if they want to withdraw a portion or entire

deposited amount for their personal or any other

expenses, including development of their asset, then

they are at liberty to file application before the

Tribunal for release of the deposited amount, which

may be considered by it and pass appropriate order in

this regard. The rest of 50% amount awarded with

proportionate interest shall be paid to the appellants

by way of a demand draft within six weeks from the date

of receipt of a copy of this order after deducting the

amount if already paid.

There will be no order as to costs.

………………………………………………………… J.

[G.S. SINGHVI]

………………………………………………………… J.

[V. GOPALA GOWDA]

New Delhi,

September 2, 2013

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