MINU ROUT & ANR.versusSATYA PRADYUMNA MOHAPATRA & ORS.

                   [2013] 10 S.C.R. 847


                    MINU ROUT & ANR.                           A
                             v.
       SATYA PRADYUMNA MOHAPATRA & ORS.
            (Civil Appeal No. 7368 of 2013)
                   SEPTEMBER 2, 2013
                                                               B
      [G.S. SINGHVI AND V. GOPALA GOWDA, JJ.]

      Motor Vehicles Act, 1988 - s.166- Compensation claim
- Head-on collision between a car and a truck - Driver of the
car died - Tribunal held that there was contributory negligence C
on the part of the deceased in causing the accident, therefore,
his dependents i.e. the appellants were entitled to get
dependency compensation only to the extent of 50% for the
fault of the offending truck - Order affirmed by High Court -
On appeal, held: 50% deduction out of the total loss of D
dependency compensation determined by the Tribunal was
not correct - In absence of rebuttal evidence, the Tribunal
erroneously placed reliance upon the charge-sheet filed
against the driver of the offending truck and deceased to hold
there was contributory negligence on the part of deceased E
ignoring the fact that the criminal case against him had
abated - Finding of fact recorded by the Tribunal and affirmed
by the High Court, was erroneous for want of proper
consideration of pleadings and legal evidence by both of
them.
                                                               F
     Motor Vehicles Act, 1988- s.166 - Compensation claim
- Head-on collision between a car and a truck - Husband of
the first appellant, who was working as driver of the car, died
- Deceased was 35 years of age - Dependents of the
deceased i.e. the appellants claimed compensation - G
Tribunal awarded Rs.1,92,0001- towards loss of dependency
and further Rs.50001- and Rs.30001- towards funeral expenses
and loss of estate, love and affection respectively and thus
                            847
                                                               H
    848      SUPREME COURT REPORTS                 [2013] 10 S.C.R.

A    in total, a compensation of Rs.2,00,0001- with interest@ 6%
    p.a - Compensation awarded by Tribunal approved by High
     Court - Justification - Held: Not justified - Appellants entitled
     to enhanced compensation - Judicial notice should have
    been taken of the fact that the post of a driver is a skilled job
8   - Though the claim of appellants was Rs.50001- as monthly
    salary of the deceased, for determining the loss of
    dapendency, the actual entitlement of the salary of the
    deceased should have been taken at Rs. 60001- per month by
    the Tribunal for awarding just and reasonable compensation,
C   which is the statutory duty of the Tribunal and the Appellate
    Court - Further, 30% of future prospects of the decea~ed
    should be added to the monthly income while 1!3rd should
    be deducted towards the personal expenses of the deceased
    - Multiplier of 16 to be applied as deceased was aged 35
    years - Appellants accordingly entitled to amount of
D   Rs. 9, 98, 4001- towards loss of dependency - Further, taking
    into consideration all the expenses incurred for the funeral
    and sudhi ceremonies and towards Joss of love and affection
    by the surviving child and the first appellant wife, award of
    Rs.50,0001- is just and reasonable under the conventional
E   heads- Total compensation thus amounting to Rs.10,48,4001
    - - Insurance Company liable to pay the same as the
    offending vehicle was insured with it alongwith interest @ 9%
    p.a., from the date of application till the date of payment.

F       The husband of the first appellant was working as a
    car driver. He died on account of a head-on collision
    between his car and a truck. The second appellant is the
    son of the deceased, who was minor at the time of the
    accident.
G        The appellants filed compensation claim before the
    Motor Accident Claims Tribunal contending that the
    accident took place on account of rash and negligent
    driving of the offending truck by its driver and that at the
    time of the accident, the deceased was having good
H
   · MINU ROUT & ANR. v. SATYA PRADYUMNA            849
                 MOHAPATRA
health and earning a sum of Rs.5000/- per month which      A
was mostly contributed to the appellants for their
livelihood. The owner of the truck did not contest the
proceedings. Respondent No. 1, driver of the truck, also
did not file any counter statement. Respondent No.2,
New India Assurance Company, however, opposed the          B
claim of the appellants, contending that there was
contributory negligence on the part of the deceased in
causing the accident.
    The Tribunal held that the accident occurred due to
head on collision between the two vehicles and both the C
drivers were equally responsible for the occurrence of
the accident, and, therefore, the appellants were entitled
to get compensation to the extent of 50% for the fault of
the offending truck. The Tribunal accepted the age of the
deceased as 35 years and applied multiplier of 16 to D
quantify the loss of dependency by taking the monthly
salary of the deceased at Rs.3,000/-. Deducting 1/3rd
amount towards personal expenses of the deceased, the
amount was thus quantified at Rs.3,84,000/-. Out of this
amount, 50% was deducted towards alleged contributory E
negligence of the deceased husband of the first appellant
and thus Rs.1,92,000/- was ultimately awarded by the
Tribunal towards Joss 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 thus in total, F
a compensation of Rs.2,00,000/- with Interest @ 6% per
annum was awarded to the appellants.
    The appellants were however not satisfied with the
amount awarded by the Tribunal and filed appeal before
the High Court which however, affirmed the judgment and    G
award of the Tribunal, and therefore the instant appeal.
    Allowing the appeal, the Court
   HELD:1. "rhe Tribunal committed error in law in
cominq to the conclusion in the absence of rebuttal        H
    850     SUPREME COURT REPORTS            [2013] 10 S.C.R.


A   evidence that there was contributory negligence of 50%
    on the part of the deceased. The Tribunal 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
B   further making observation in the judgment that the
    appellants had not produced the FIR. 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 driver for the offences punishable
C   under Sections 279 read with Section 302 of IPC read with
    the provisions of the Motor Vehicles Act, 1988. 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
D   choose to examine either the driver of the truck or any
    other independent eye witness to prove the allegation of
    contributory neg1igence on the part of the deceased. In
    the absence of rebuttal evidence adduced on record by
    the Tribunal, the Tribunal should not have placed reliance
E   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
    also placed reliance on certain stray answers elicited
    from the evidence of P.W.2 and P.W.3 in their cross-
F   examination. The findings and reasons recorded by the
    Tribunal while 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 the plea taken by it that accident did
    not take place on account of rash and negligent driving
G   of the truck driver is erroneous in law. The Tribunal
    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
H   criminal case against the deceased was abated.
     MINU ROUT & ANR. v. SATYA PRADYUMNA                   851
                 MOHAPATRA
Therefore, the said finding of fact recorded by the               A
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. [Paras
10, 12] [860-H; 861-G-H; 862-A-H; 863-A]
     2. The appellants claimed compensation under the             B
 heading of loss of dependency as they were all
dependents upon the earnings of the deceased who was
working as a driver of the car which is a skilled job. The
oral evidence of the first appellant, PW-1, is not accepted
by the Tribunal, solely for the reason that the appellants        C
did not produce documentary evidence to prove the
monthly salary of the deceased as Rs.5,000/- per month
as claimed by them. 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          D
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 satary of the
deceased, for the purpose of determining th,e loss of             E
dependency, the actual entitlement of the salary of the
deceased should have been taken at Rs.6000/- pe,f month
by the Tribunal for awarding just and reas'~nable
compensation, which is the statutory duty of the Tribunal
and the Appellate Court. 30% of future prospects of the           F
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, 1/3rd should be deducted
towards the personal expenses of the deceased, then the
remaining amount would come to Rs.5,200/- per month.              G
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 mentiqned in the post
mortem report, which is produced as Exh.5. If the 16
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    852     SUPREME COURT REPORTS              [2013] 10 S.C.R.


A   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. Further 50%
    deduction out of the total loss of dependency
    compensation determined by the Tribunal is not correct.
B   The appellants are entitled to the full amount of
    Rs.9,98,400/-. Further, the Tribunal 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.
C   The Tribunal also inadequately awarded Rs.3,000/-
    towards loss of love and affection. The Tribunal also
    erred both on facts and in law as it completely ignored
    the fact that the deceased died leaving behind him the
    first appellant-the widow, his mother and two minor
    children, who lost the love and affection of their father.
0   Therefore, taking into consideration all the expenses
    incurred for the funeral and sudhi ceremo.nies and
    towards loss of love and affection by the surviving child
    and the first appellant wife, award of Rs.50,000/- is just
    and reasonable under the conventional :heads. If
E   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
F   is also liable to pay interest at the rate of 9% per annum,
    from the date of application till the date of payment. The
    compensation awarded shall be apportioned between the
    appellant nos. 1and 2 equally as the remaining appellants
    died during the pendency of the proceedings and their
G   names were deleted by the High Court. [Paras 13 and 14]
    [863-A-D, F-H; 864-A-G; 865-A-C, F]
       Santosh Devi vs. National Insurance Company Ltd. and
  Ors. 2012 (6) SCC 421: 2012 (3) SCR 1178; Sar/a Verma
H vs. Delhi Transport Corporation (2009) 6 SCC 121: 2009 (5)
     MINU ROUT & ANR. v. SATYA PRADYUMNA                     853
                 MOHAPATRA

SCR 1098; Kera/a State Road Transport Corporation vs.               A
Susamma Thomas (1994) 2 SCC 176 and Municipal
Council of Delhi vs. Association of Victims of Uphaar Tragedy
(2011) 4 sec 481 - relied on.
                      Case Law Reference:
                                                                    B
     2012 (3) SCR 1178         relied on              Para 13
     2009 (5) SCR 1098         relied on              Para 13
     (1994) 2 sec 116          relied on              Para 13
     (2011) 4 sec 481          relied on              Para 13       c
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7368 of 2013.
    From the Judgment & Order dated 27.07.2011 of the High
Court of Orissa at Cuttack in MACA No. 594 of 2010.                 D
     Chittaranjan Mishra, R.P. Singh Yadav, Debasis Misra for
the Appellants.
    Amit Kumar Singh for the Respondents.
     The Judgment of the Court was delivered by                     E

     V. GOPALA GOWDA, J. 1. Leave granted.
       2. This appeal is filed by the appellants who were
claimants before the Additional District Judge-cum-4th MACT,
Jagatsinghpur, Odisha (in short 'the Tribunal') in MAC case         F
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 that the award of
compensation of Rs.2,00,000/- in favour of the appellants along     G
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.                   H
    854      SUPREME COURT REPORTS                  [2013] 10 S.C.R.


A       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
B 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
c 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 the time of the accident, the deceased
0 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
E 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.
  RespondentNo.2, the New India Assurance Company filed its
  statement of counter opposing the claim of the appellants
F 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
G 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
H
     MINU ROUT & ANR. v. SATYA PRADYUMNA                     855
       MOHAPATRA [V. GOPALA GOWDA, J.]
charge-sheet fil~d by the Dharmasala police, who seized both         A
the vehicles. Th~refore, 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 Susi~ Rout. The accident occurred on account of
head on collision between the two vehicles. Due to the death         B
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 C
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 licenc_e of the deceased. Apart D
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 evidence on record, has answered the issue Nos. 1, 2 and E
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- F
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 G
evidence-after adverting to the fact that neither the owner of the
car nor the 1driver 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
                                                                     H
    856      SUPREME COURT REPORTS               [2013) 10 S.C.R.


A 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.
s Therefore, the Tribunal recorded a finding of fact in this regard
  and held that 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
c 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
0
  deceased at Rs.3,000/- in the absence of documentary
  evidence. Out of this amount, 1/3rd 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
E 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
F 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 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
G 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
H
      MINU ROUT & ANR. v. SATYA PRADYUMNA                      857
        MOHAPATRA [V. GOPALA GOWDA, J.]
impropriety and illegality. The correctness of the same is             A
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
                                                                       8
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       C
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
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          D
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       E
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             F
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           G
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 appellants. They have stated that on account of rash and
negligent driving of the driver of the offending truck, the accident   H
    858      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   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
B   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
c   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
D   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 No.1.
    Therefore, the findings recorded on the issue No.1 by the
    Tribunal is erroneous in law, and the same concurred with by
E   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
F   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
G   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
H   should have quantified and awarded just and reasonable
       MINU ROUT & ANR. v. SATYA PRADYUMNA                     859
         MOHAPATRA [V. GOPALA 'GOWDA, J.]
 compensation towards loss of dependency. That has not been            A
 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/- 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          8
 Rs.6000/- per month as the salary of the deceased and 1/3rd
 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     C
 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               D
 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.                                                      E
        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
  Tribunal being a fact finding authority, on proper appreciation
                                                                       F
  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 hi§i 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                G
  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
· P.rroneous and does not call for interference by this Court.         H
    860       SUPREME COURT REPORTS               [2013] 10 S.C.R.


A   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.

8        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 holding that contributory
C         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 wrrant interference in this appeal?

D         2. Whether the appellants are entitled to enhanced
          compensation?

          3. What award?

    Answer to point No.1:
E
        10. This point is required to be answered in favour of the
    appellants for the following reasons:-

       lt 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
F 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 ttie offending vehicle and the car. After
  investigation of the case, charge-sheet Exh.1 GR 114 of 2004
G 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 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
H the deceased.
     MINU ROUT & ANR. v. SATYA PRADYUMNA                    861
       MOHAPATRA [V. GOPALA GOWDA, J.]
     11. The case of the appellants is that the accident took       A
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           B
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           c
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
                                                                    0
account of rash and negligent driving of the truck. There was
head on collision between the offending truck and the car.

       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 E
 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 F
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 G
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 H
    862      SUPREME COURT REPORTS               [2013] 10 S.C.R.


A    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 driver .
    for the offences punishable under Sections 279 read with
B    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
c   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
0   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
E   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
F   Company to prove 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
G   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
H   and affirmed by the High Court in the impugned judgment, is
     MINU ROUT & ANR. v. SATYA PRADYUMNA                  863
       MOHAPATRA [V. GOPALA GOWDA, J.]
erroneous for want of proper consideration of pleadings and       A
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.
                                                                  B
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 fact that Susil Rout was working as a driver of the C
car which is a skilled job. Appellants have stated in the claim
p"etition 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 D
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., 1/3rd amount was
deducted towards personal expenses of the deceased and E
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 F
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 G
the purpose of determining the loss of dependency, the actual
entitlement of the salary of the 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 H
    864        SUPREME COURT REPORTS               [2013] 10 S.C.R.


A    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, 1/3rd should be deducted towards the
B 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
c mentioned in the post mortem report, which is produced as
    Exh.5. According to the decision of this Court in Sar/a Verma
    vs. Delhi Transport Corporation2 , 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/
0   -, 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 the Tribunal that there was 50%. contributory
    negligence of both the drivers of the offending truck and the
E · 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
F 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
G 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

    1.   2012 (6) sec 421.
H   2.   c2009) s sec 121.
       MINU ROUT & ANR. v. SATYA PRADYUMNA                     865
         MOHAPATRA [V. GOPALA GOWDA, J.]
the expenses incurred for the funeral and sudhi ceremonies and        A
towards loss of love and affection by the surviving child and the
first appellant wife, by applying the decision in the case of
Kera/a State Road Transport Corporation vs. Susamma
Thomas3, awards Rs.50,000/- which is just and reasonable
under the conventional heads. If Rs.50,000/- is added to the          B
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       c
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'+.

       14. Accordingly, we allow the appeal in the following terms:   D

      (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          E
      payable from the date of filing the application till the date
      of payment.      ·

      (Ill) The compensation awarded shall be apportioned
      between the appellants - Minu Rout and Sumit Kumar
      Rout, equally as the remaining appellants Ratnamani Rout        F
      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.

      (IV) We direct the Insurance Company to deposit 50% of          G
      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
3.   (1994) 2 sec 11a.
4.   c2011) 4 sec 481.                                                H
    866       SUPREME COURT REPORTS                   (2013] 10 S.C.R.


A         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
B         regard. The rest of 50% amount awarded with
          proportionate interest shall be paid to the appellants by
          way of a d.ernand draft within six weeks from the date of
          receipt of a copy of this order after deducting the amount
          if already paid.
c         There will be no .order as to costs.

    B.B.B.                                             Appeal allowed.