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HARKESH MANUJA, J. –

1. By way of present appeal challenge has been laid to the award dated 07.02.2018 passed by the learned Motor Accident Claims Tribunal, Hisar (for short, “the Tribunal”), whereby the appellants-claimants were held entitled to compensation of Rs.27,93,936/- along with interest at the rate of 7.5% per annum from the date of filing of the claim petition. The Tribunal assessed the total compensation at Rs.1,11,75,744/-, but restricted the liability to 25% thereof, attributing contributory negligence to the driver of the offending vehicle to the extent of 25% and to the deceased to the extent of 75%.

2. Briefly stating, the facts of the case are that on 24.02.2014, at about 8:00 a.m., deceased Surender was driving Maruti Swift Dzire car bearing registration No. HR-26BX-0407 from Gurgaon towards Hisar, accompanying his brother Birender (PW-3). When the car reached near Pipla Pul towards Mundhal, within the jurisdiction of Police Station Narnaund, District Hisar, a TATA Canter bearing registration No. MH-04GC-1223, being driven by respondent No.1-Joginder, owned by respondent No.2 and insured with respondent No.3-Bajaj Allianz Insurance Company, came from the Hisar side at a high speed and in a rash and negligent manner struck against the car. As a result of the impact, Surender died at the spot. FIR No.118 dated 24.02.2014 under Sections 279 and 304-A of the Indian Penal Code was registered at Police Station Narnaund on the statement of Birender. The deceased was stated to be about 34 years of age, proprietor of Sunrise Road Carrier and also engaged in agricultural activities. Respondent No.4-ICICI Lombard General Insurance Company Limited was impleaded as the insurer of the car.

3. Respondent No.1 denied the allegations of rash and negligent driving and pleaded false implication. Respondent No.2 was proceeded against ex parte. Respondent No.3, while denying negligence on the part of the Canter driver, pleaded that the vehicle was being driven slowly and cautiously and that the deceased was driving the car at a high speed on the wrong side of the road. Defences regarding the validity of the driving licence and breach of policy conditions were also raised, besides the plea of contributory negligence. Respondent No.4 denied the occurrence of any accident involving the Canter.

4. On the basis of the pleadings, the learned Tribunal framed the issues on 18.04.2017, including the issue as to whether the accident had occurred due to rash and negligent driving of the Canter by respondent No.1.

5. While deciding the issue of negligence, the learned Tribunal accepted the testimony of PW-3, holding that his presence at the spot was natural and stood corroborated by the testimony of RW-1. The objection regarding his relationship with the deceased and the fact that he escaped injury was rejected. The Tribunal further held that the acquittal of respondent No.1 in the criminal proceedings, being based on benefit of doubt, was not binding upon it, as the claim petition was to be decided on the touchstone of preponderance of probabilities. The involvement of the Canter in the accident was also held to be established. The testimony of RW-2 was disbelieved, as he denied his presence at the spot and did not explain the manner in which the accident occurred. The learned Tribunal further observed that the site plan, by itself, was insufficient to establish sole negligence on the part of the deceased, as the position of the vehicles after the accident could have been affected by the impact, shock and loss of control.

5.1 Notwithstanding the aforesaid findings, the learned Tribunal proceeded to hold that the accident was a case of contributory negligence, primarily on the ground that the collision was head-on, the road was sufficiently wide for both vehicles to pass, the accident occurred in broad daylight, PW-3 noticed the Canter from a distance of about 30 feet and the car was found on the right side of the road after the accident. Accordingly, negligence was apportioned to the extent of 25% to the Canter driver and 75% to the deceased.

5.2 As regards compensation, the learned Tribunal assessed the annual income of the deceased at Rs.6,61,056/-, after deducting income tax of Rs.39,674/- from the gross income of Rs.7,00,730/- reflected in the income tax return (Ex.P-9). An addition of 40% towards future prospects was made, taking the income to Rs.9,25,478/-. After deducting one-fourth towards personal expenses, the annual loss of dependency was assessed at Rs.6,94,109/-. Applying a multiplier of 16, the loss of dependency was calculated at Rs.1,11,05,744/-. A further sum of Rs.15,000/- each was awarded towards funeral expenses and loss of estate and Rs.40,000/- towards loss of consortium, taking the total compensation to Rs.1,11,75,744/-. However, after deducting 75% on account of contributory negligence attributed to the deceased, the claimants were awarded Rs.27,93,936/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition.

6. Learned counsel for the appellants contended that the finding of 75% contributory negligence recorded against the deceased was wholly unsustainable. It was submitted that PW-3, the only eyewitness to the occurrence, categorically deposed that the car was being driven on its correct side of the road at a speed of 50-60 km per hour and that the accident occurred solely due to the rash and negligent driving of the Canter. Even during cross-examination, he maintained that no negligence could be attributed to the deceased. It was further contended that RW-1, the investigating officer, admitted that respondent No.1 was found negligent during investigation and that the charge-sheet was presented against him. No statement of any witness alleging negligence on the part of the deceased was recorded during investigation. The respondents, despite having specifically pleaded that the deceased was driving on the wrong side, failed to lead any evidence in support thereof. Thus, the finding of contributory negligence is stated to be based upon an erroneous appreciation of the evidence, particularly the site plan, which does not establish the position of the vehicles at the time of impact.

On the question of compensation, learned counsel submits that the amounts awarded under the conventional heads required enhancement in terms of National Insurance Company Limited v. Pranay Sethi, 2017 (16) SCC 680, besides an award of Rs.20,000/- towards transportation expenses. The rate of interest awarded by the Tribunal was also stated to be on the lower side.

7. Per contra, learned counsel for the respondents supported the impugned award and reiterated that the site plan depicted the car on the wrong side of the road. It was argued that PW-3 was an interested witness and that the acquittal of respondent No.1 in the criminal proceedings also supported the defence. The award was, therefore, sought to be maintained.

8. I have heard learned counsel for the parties and perused the paper-book.

9. The controversy which arises for consideration is whether the learned Tribunal was justified in attributing 75% contributory negligence to the deceased and, if not, what would be the just compensation payable to the claimants. The principles governing determination of negligence in a claim under the Act are well settled. The proceedings before the Motor Accident Claims Tribunal are summary in nature and the claimants are required to establish negligence on the touchstone of preponderance of probabilities, rather than beyond reasonable doubt. Reference in this regard may be made to Bimla Devi v. Himachal Road Transport Corporation, (2009) 13 SCC 530; Kusum Lata v. Satbir, (2011) 3 SCC 646; Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646; and Mangla Ram v. Oriental Insurance Company Limited, (2018) 5 SCC 656. Equally, where contributory negligence on the part of the deceased is pleaded to reduce the liability of the tortfeasor, the burden of establishing the same rests upon the party alleging it. Such a finding must be founded upon the evidence available on record and cannot be based merely upon conjectures or presumptions. Although negligence is ordinarily a question of fact, interference by this Court would be warranted where the finding recorded by the Tribunal is not supported by the evidence on record or is founded upon an erroneous appreciation thereof. In the present case, the finding attributing 75% contributory negligence to the deceased does not appear to be sustainable for the reasons recorded hereinafter.

9.1 Firstly, PW-3, Birender, the brother of the deceased and an eyewitness to the occurrence, categorically deposed that the accident occurred when the driver side of both vehicles struck against each other. During his cross-examination, he stated that the road at the place of occurrence was a wide G.T. Road, where two or three vehicles could easily pass simultaneously. He further stated that they noticed the offending vehicle from a distance of about 15-20 paces. He specifically denied the suggestion that the deceased was driving the car at a high speed or that he went to the wrong side of the road and caused the accident. He also denied the suggestion that the site plan (Ex.R-1) established that their vehicle was on the wrong side and that the deceased was negligent in causing the accident. The relevant portion of his cross-examination reads as under:

“The road where the accident took place is wide enough and a G.T. Road and two or three vehicles can cross easily simultaneously. The driver side of both the vehicles had struck against each other. […] It is wrong to suggest that my brother Surender (deceased) was driving the vehicle in a rash and negligent manner and had gone on wrong side to cause the accident with the truck. I have seen site plan Ex.R1 (already exhibited). It is wrong to suggest that as per Ex.R1 our vehicle was on the wrong side and was negligent in causing the accident.”

The aforesaid testimony assumes significance because PW-3 was subjected to cross-examination on the very aspects which subsequently formed the basis of the finding of contributory negligence. However, no material elicited from his cross-examination establishes that the deceased crossed over to the wrong side of the road. The mere fact that the driver side of both vehicles struck against each other does not, by itself, establish negligence on the part of the deceased, particularly when the eyewitness has categorically denied that the car was being driven on the wrong side.

9.2 Moreover, the testimony of RW-1, the investigating officer, lends support to the version of the claimants. He deposed that, on the basis of the investigation conducted, respondent No.1 was found negligent and was accordingly challaned. He further admitted that no statement of any witness alleging negligence on the part of the deceased was recorded during investigation. The acquittal of respondent No.1 in the criminal proceedings, which was based upon benefit of doubt, does not determine the issue of negligence in the present proceedings. The standard of proof in a criminal trial is materially different from the standard applicable to a claim under Section 166 of the Act. The said acquittal, therefore, does not assist the respondents in establishing contributory negligence on the part of the deceased. Also, the reliance placed upon the site plan (Ex.R-1) is misplaced. The learned Tribunal itself observed that the site plan depicts the position of the vehicles after the accident and that such position may change on account of the impact, shock or loss of control. Despite recording this observation, the Tribunal proceeded to infer negligence on the part of the deceased merely because the car was stated to have been found on the right side after the collision. A rough site plan depicting the final position of the vehicles, without any reliable indication of the point of impact, skid marks or other physical evidence establishing the lane in which the vehicles were travelling at the time of collision, cannot by itself form the basis for attributing negligence to the deceased. The record does not disclose any cogent material from which it could be concluded that the deceased crossed over to the wrong side before the impact. The position of the vehicles after a head-on collision, particularly one involving a Canter and a passenger car, cannot be treated as conclusive proof of the manner in which either vehicle was being driven immediately before the accident. The discrepancy regarding the preparation of the site plan, namely, whether it was prepared in the presence of PW-3 or at the instance of the deceased's brother, is not material to the issue under consideration. Such discrepancy pertains to the preparation of the site plan and does not discredit the otherwise consistent testimony of PW-3 regarding the occurrence. Likewise, the mere assertion that a loaded Canter could not have been driven at a high speed is not sufficient to displace the direct ocular evidence available on record.

9.3 Additionally, the observation of the learned Tribunal that PW-3 noticed the Canter from a distance of about 30 feet and that the deceased could, therefore, have avoided the accident, is also not supported by any cogent evidence. A distance of 30 feet is approximately nine metres, which would be covered by a vehicle travelling at 50-60 km per hour in less than a second, even without taking into account the speed of the approaching Canter. In such circumstances, it cannot reasonably be inferred that the deceased had sufficient time to react and avoid the collision. The fact that the road was sufficiently wide for both vehicles to pass does not, by itself, establish that the deceased moved to the wrong side. Rather, in the absence of any evidence to the contrary, the said circumstance cannot be used to displace the eyewitness account accepted by the Tribunal. Lastly, the apportionment of negligence in the ratio of 75% against the deceased and 25% against the Canter driver is arbitrary. The award does not identify any specific act or omission on the part of the deceased which contributed to the occurrence. The observation that the Canter driver could also have avoided the accident, while simultaneously attributing a greater degree of negligence to the deceased, is not supported by any discernible reasoning.

9.4 In view of the aforesaid discussion, the testimony of PW-3, duly supported by the evidence of the investigating officer and the material relating to the criminal proceedings, establishes on a preponderance of probabilities that the accident occurred due to the rash and negligent driving of the Canter by respondent No.1. No contributory negligence on the part of the deceased has been established. Accordingly, the finding recorded by the learned Tribunal attributing 75% contributory negligence to the deceased is set aside.

10. Coming to the quantum of compensation, the Tribunal assessed the annual income of the deceased at Rs.6,61,056/- on the basis of the income tax return (Ex.P-9), after deducting the tax payable. The said assessment is supported by the documentary evidence on record, including the audited balance sheet and audit reports produced by the respondents themselves. Although a higher monthly income was asserted on behalf of the claimants, no sufficient documentary evidence has been brought to justify interference with the assessment made by the Tribunal. The addition of 40% towards future prospects is in consonance with the principles laid down by the Constitution Bench of the Hon'ble Supreme Court in Pranay Sethi (supra), the deceased being self-employed and below 40 years of age. The deduction of one-fourth towards personal expenses is also justified, keeping in view the number of dependents. The multiplier of 16 has likewise been correctly applied. Accordingly, the annual loss of dependency of Rs.6,94,109/- and the resultant loss of dependency of Rs.1,11,05,744/- are maintained.

10.1 As regards the conventional heads, in Pranay Sethi (supra), and further clarified by the Hon’ble Supreme Court in “United India Insurance Co. Ltd. vs. Satinder Kaur,” 2020 (11) SCC 1, the Hon'ble Supreme Court held that compensation under conventional heads is to be awarded in a standardized manner. The appellants-claimants are thus entitled for Rs. 18,000/- towards loss of estate and Rs. 18,000/- towards funeral expenses. The appellants-claimants are further entitled to Rs. 48,000/- each towards loss of consortium. The claimants have also sought compensation towards transportation expenses. It was specifically pleaded that the deceased died at the spot, was shifted to General Hospital, Hansi and, after post-mortem examination, his body was transported to village Bagla. The said plea has not been rebutted by the respondents. Since no separate amount has been awarded under this head, a sum of Rs.20,000/- towards transportation expenses is considered just and reasonable.

11. Consequently, the compensation payable to the claimants is liable to be recalculated and is accordingly determined as under:

Thus, the claimants are held entitled to total compensation of Rs.1,14,01,744/- as against Rs.27,93,936/- awarded by the learned Tribunal, resulting in an enhancement of Rs.86,07,808/-.

12. The grant of interest @ 7.5% per annum is not equitable and just in view of the observations made by the Hon’ble Supreme Court in “Smt. Supe Dei and others vs. National Insurance Company Limited and other, reported as (2009) (4) SCC 513 approved in a subsequent judgment titled as “Puttamma and others vs. K.L. Narayana Reddy and another, 2014 (1) RCR (Civil) 443, thus, the interest is enhanced to 9% per annum on the amount of compensation awarded to the claimants from the date of institution of claim petition till its realization. In case the said amount is not paid within three months, the same shall be payable thereafter along with 12% interest from the expiry of period of three months from today. Needless to mention here that the amount of compensation already paid to the claimant shall be deducted from the enhanced compensation.

13. The learned Tribunal had held respondents No.1 to 3, namely, the driver, owner and insurer of the offending Canter, jointly and severally liable to pay the compensation, while no liability was fastened upon respondent No.4, the insurer of the deceased's car. No challenge to the aforesaid determination has been brought to the notice of this Court. The same is, therefore, maintained. Respondents No.1 to 3 shall remain jointly and severally liable to satisfy the enhanced compensation as well.

14. Resultantly, the present appeal is allowed and the impugned award dated 07.02.2018 is modified to the aforesaid extent. The apportionment of compensation as directed by the learned Tribunal shall remain unchanged, namely, 90% in equal shares amongst claimants No.1 to 3, at 30% each, and the remaining 10% in equal shares amongst claimants No.4 and 5. The share of claimant No.3, who is a minor, shall be kept in a fixed deposit or monthly income scheme in a nationalised bank or post office in her name till she attains majority. The natural guardian shall, however, be at liberty to withdraw the monthly income for her education and upbringing. The share of claimant No.2, who has attained majority during the pendency of the appeal, shall be released directly to him through his bank account, upon proper identification. Since the direction regarding keeping part of the shares of the adult claimants in fixed deposits for a period of three years has already worked itself out, the enhanced amounts payable to claimants No.1, 4 and 5 shall be released directly to them through their respective bank accounts.

15. Pending miscellaneous application(s), if any, shall also stand disposed of.

Appeal allowed.

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