H. Baruah, J.@mdashThe MAC Appeal No. 13 of 2010 and Cross Objection No. 3 of 2010 are being disposed of by this common judgment
and order in view of involvement of similar facts and law. MAC Appeal No. 13 of 2010 is preferred against the judgment and award dated 23-2-
2010 passed by learned Member, MACT, Aizawl in MAC Case No. 68 of 2006 whereby an amount of Rs. 7,57,608/- with 9% interest per
annum has been awarded against the Appellant, the United India Insurance Co. Ltd. The Cross Objectors on the other hand by filing the cross
objection have sought for enhancement of the award in view of the averments made in the cross objection petition.
2. We have heard Mr. M.M. Ali, learned Court for the Appellant, the United India Insurance Co. Ltd. as well as Mrs. Helen Dawngliani, learned
Court and Mr. M. Guite, learned Court for the Cross Objectors, namely, Smt. K. Lalsawmi, claimant-Respondent in the appeal, Smt. Nitu
Pandya, the owner of the offending vehicle, Smt. Lalremsiami and Lalsiamliana, counter claimant-opposite party No. 3 and 4 in the appeal.
3. The primary grievance of the Appellant is in respect of failure on the part of the tribunal to take account of the contributory negligence and
apportionment of the award, while the cross objectors claim is for enhancement of the award. In respect of the other issues the Appellant has not
make any submission in other words not taken any ground as against the judgment and award. Mr. M.M. Ali, learned Court appearing for the
Appellant submits before this Court that death occurred to the deceased on account of his own negligence in a vehicular accident. It is submitted
by him that the deceased at the time of accident was playing Football on the highway with his friends and while playing the offending vehicle hit him
and accordingly died due to run over by the rear wheels. Mr. M.M. Ali in support of his contention put reliance in the evidence of P.C.
Rohmingthanga, ASI, witness No. 2 for the claimant who was the investigating officer deputed by the Officer-in-charge of Sairang Police Station.
This witness in his cross-examination stated that the deceased, the police constable was playing Football on the road with some of his friends on a
blind curve of the road. Taking assistance of this particular piece of evidence Mr. M.M. Ali, leaned Court for the Appellant submits strenuously
that it would have been appropriate on the part of the Member, MACT to hold that the accident took place on account of contributory negligence
on the part of the deceased and in that view of the matter it would have been appropriate for the Member not to saddle the Appellant with the cent
percent liability of the payment of the award. By playing Football on the road by the deceased with his friends that too in a blind curve of the road
contributed some negligence on his part towards the accident. Therefore, according to Mr. M.M. Ali, the award so computed ought to have been
apportioned 50 : 50.
4. On the contrary Mrs. Helen Dawngliani, learned Court and Mr. M. Guite, learned Court for the cross objectors-Respondents submit that there
was no negligence on the part of the deceased and he had not contributed any thing towards accident. It is also submitted that the deceased was
not playing Football on the road with his friends as claimed by witness No. 2. Mrs. Helen and Mr. Guite, learned Court for the cross objectors-
Respondents submit that such fact is not appearing in the evidence of witness No. 3, the Investigating Officer of the case and that being so the
evidence forthcoming in the cross examination of the witness No. 2 would have no bearing and accordingly the submission advanced by Mr. M.M.
Ali would have no leg to stand.
5. Witness No. 2, Mr. P.C. Rohmingthanga, the ASI of Police during the relevant point of time was posted as second officer of Sairang Police
Station, while he was at Sairang police station he received a telephonic information of an accident involving a truck that occurred at PTC junction
on Sairang road, where Constable James Lalthanzauva was reportedly injured. He being detailed by the Officer-in-charge of the police station
immediately rushed to the spot to enquire into the matter and on reaching thereat had the knowledge of evacuation of the injured constable to Civil
Hospital, Aizawl in the same vehicle, which had injured. Before proceeding to Civil Hospital he came to know from one Lalluta about the accident.
He also received information over telephone that the constable after reaching Civil Hospital, Aizawl succumbed to his injuries. He also deposed
before the tribunal that the accident occurred due to negligence on the part of the driver of the truck being registration No. AS-11/6561, driven by
one Babul Laskar. The witness was thoroughly cross examined and during cross examination he stated that the deceased constable was playing
Football on the road with some of his friends at a blind curve. Witness No. 3 of the Opposite Party Nos. 3 and 4 stated on oath before the tribunal
that the at the relevant point of time he was officer-in-charge of Sairang police station and having received a telephonic information of the accident,
where Constable James Lalthanzauva was run over by the truck bearing registration No. AS-11/6561, deputed ASI Shri P.C Rohmingthanga,
witness No. 2 of the claimant to make a preliminary inquiry about the accident. Witness No. 2, P.C. Rohmingthanga after his preliminary inquiry
submitted a report stating therein that the accident took place due to rush and negligent driving on the part of the driver of the truck. He also stated
that he personally investigated the case and during investigation he visited the place of occurrence and examined witnesses. He also stated in his
evidence that during investigation he came to know that the deceased was run over by the rear wheels of the truck who was standing on the road
side and the vehicle was running at a high speed.
6. Mrs. Helen Dawngliani and Mr. M. Guite, learned Court representing the cross objectors-Respondents strenuously argue that of witness No. 3
of the Opposite party has not supported the evidence of the witness No. 2 in respect of playing of Football by the deceased along with his friends
on the road that too at a blind curve, who is also an Investigating Officer of the case. Therefore, the stand taken on contributory negligence on the
part of the deceased would not be acceptable and the learned tribunal rightly has not taken any account of alleged contributory negligence on the
part of the deceased.
7. Witness No. 2 is a witness for the claimant while witness No. 3 is a witness for the Opposite Party Nos. 3 and 4. When one of the witnesses for
the claimant stated without any ambiguity that at the time of accident the deceased along with his friends were playing Football on the road in a
blind curve, such positive statement in view of the evidence of witness No. 3 of the opposite party who is not the first hand Investigating Officer
cannot be brushed aside at will. His evidence also plays pivotal role in arriving at a decision in respect of negligence which is required to be proved
by the claimant in an application u/s 166 of the M.V. Act. This Court having gone through the facts and evidence on record meticulously finds it
appropriate to record a finding that the deceased was also guilty of contributory negligence since the evidence of witness No. 2 speaks so.
Admittedly the road over which the accident took place is a highway and no game of Football is allowed over the road, over which there is
frequent traffic. The deceased knowing fully well of the traffic over the road engaged himself in playing Football over the highway with his friends
that too in a blind curve. Evidence of witness No. 2 appearing in cross examination apparently goes to show that the deceased is guilty of
contributory negligence. On a highway not only the drivers but also the pedestrians should take precaution while driving vehicle or proceeding
through. They must be cautious and vigilant of the nature of the road and precaution is required to be taken by every one. The deceased and his
friends however did not take such precaution while playing Football on the road. Therefore, in considered view of this Court the submission
advanced by Mr. M.M. Ali, learned Court for the Appellant has sufficient force and it cannot be thrown lightly in view of the evidence on record,
evidence of witness No. 2 in particular. This Court sees no reason to accept the submissions advanced by Mrs. Helen Dawngliani as well as Mr.
M. Guite, learned Court for the cross objectors-Respondents.
8. The learned tribunal appears to have not applied its judicial mind in the evidence available on record. Evidence of witness No. 2 being in the line
that the deceased was also guilty of contributory negligence ought to have apportioned the award so computed by it 50 : 50.
9. Taking note of the facts and evidence on record, this Court finds sufficient cogent ground to interfere with the judgment and award passed by
the tribunal as claimed by the Appellant. This Court accordingly holds that liability should be 50 : 50. In the result the appeal is partly allowed.
10. In regard to the cross objection filed by the cross objectors, it is submitted by Mrs. Helen as well as Mr. Guite that the tribunal committed
error and illegality in awarding compensation of Rs. 7,57,608/-. It is submitted by Mrs. Helen as well as Mr. Guite taking recourse to the ratio laid
down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, that the learned tribunal failed to apply the appropriate
multiplier as per table enunciated by the Apex Court in the Sarla Verma�s case (supra). The deceased being in the age group of 21 to 25,
multiplier 18 ought to have applied while computing the compensation. It is also argued by them that the learned tribunal also committed error and
illegality in not taking into consideration the future prospect of the deceased while computing the compensation. The income of the deceased being
not disputed 50% of monthly income is required to be added for computing the loss of dependency. The deceased being married 1/3rd income is
required to be deducted. The aspect of future prospect was not taken into consideration by the tribunal while computing the award. The learned
tribunal also failed to adopt the multiplier 18 as enunciated by the Apex Court in the Sarla Verma�s case (supra) taking note of the age of the
deceased. In Sarla Verma�s case (supra) the Apex Court formulated a table of the age group for application of multiplier in juxtaposition with
the multiplier mentioned in the second schedule for claims u/s 163A of the M.V. Act. The Apex Court provided multiplier 18 for the age group of
15 to 20 years and 21 to 25 years. The deceased at the time of his death was 23 years of age, therefore, his age would fall in the age group of 21
to 25 and for the age group multiplier 18 is suggested. The tribunal, however, while computing award adopted the multiplier indicated in the second
schedule of the M.V. Act in the age group of 20 to 25 years. As already indicated the monthly income is not disputed, the future prospect of the
income of the deceased was not taken into consideration by the tribunal. The Apex Court while rendering the judgment in Sarla Verma�s case
(supra) also considered this aspect for the computation of loss of dependency. Mrs. Helen Dawngliani as well as Mr. Guite, learned Counsel for
the cross objectors-Respondents, therefore, submit that the computation of the award is to be made per decision of the judgment rendered by the
Supreme Court in Sarla Verma�s case (supra).
11. Mr. M.M. Ali, learned Court appearing for the Appellant, however, raises no objection in computing the award taking the ratio of the Sarla
Verma''s case (supra). This Court, therefore, finds no hurdle in applying the ratio laid down by the Apex Court in Sarla Vermas case (supra) in
computing the award. Since the age of the deceased falls within the age group of 21 to 25 years as per table, multiplier 18 is required to be applied
towards computation of award. Deceased was a police constable and he died at the age of 23 years and he would have earned more from the
service had he been alive. Therefore, the Apex Court in Sarla Verma''s case (supra) took 50% of the monthly income as income of the deceased
for computation of loss of dependency. The deceased having dependent family had to expend some portion of his monthly earning for his personal
expenses.
12. Thus, taking into consideration of all the matters in its entirety, the ratio laid down by the Apex Court in Sarla Verma''s case (supra) will hold
the field and therefore, this Court finds no impediment to compute award as under:
1. Loss of dependency =Rs. 5203 + 2601 x 12 x 18 x 2
3
= Rs. 11,23,776.00
2. Loss of Estate = Rs. 5, 000.00
3. Loss of consortium = Rs. 5, 000.00
4. Funeral expenses = Rs. 5, 000.00
Total = Rs. 11, 38,776.00
(Rupees eleven lakhs thirty eight thousands
seven hundred seventy six) only.
Cross Objection is therefore, allowed. The award is modified to the extent as indicated above. Since the appeal is partly allowed on the point of
contributory negligence, the Appellant is to bear 50% of the award so computed. Award shall carry 9% interest per annum from the date of filing
of the claim petition till realization.
13. The aforesaid amount with interest shall be paid by the Appellant to the cross objectors-claimants within a period of two months from the
receipt of a certified copy of the judgment and order.
14. MAC Appeal as well as Cross Objection stand disposed of. No cost.
