Abhay Kumar and Others vs Sitabai and Others

S.K. Seth, J.—This order shall also govern disposal of the cross-objection preferred by the respondent Nos. 1 to 3, the claimants.

By the Award dated 31.8.2001 passed in M.V. Case No. 9/01, learned Claims Tribunal, Ratlam has awarded a sum of Rs. 1,10,000 as compensation for the death of one Babu Bheel. While assessing compensation and liability, learned Claims Tribunal has exonerated Insurance Company-respondent No. 4 herein, on the ground that at the time of the accident, the alleged driver of the offending vehicle had no valid driving licence, therefore, ordered the owner and the alleged driver to pay compensation together with interest. This appeal is filed by the owner, alleged driver and the alleged transferee. In the cross-objection besides seeking enhancement, respondent Nos. 1 to 3 are also assailing the findings of the Claims Tribunal with regard to the alleged breach of policy.

I have heard the rival submissions at length and also perused the material available on the record.

Learned Claims Tribunal appreciating the evidence has found that the truck bearing registration No. MPN-5737 was being driven by Kalu singh. Learned Claims Tribunal assessed the monthly income of the deceased at Rs. 750 and the annual loss of dependency at Rs. 6,000 after deducting the usual one-third amount which the deceased might have been spending on himself. Applying the multiplier of 15, learned Claims Tribunal assessed the future loss of dependency at Rs. 90,000 and added another sum of Rs. 20,000 under various heads like loss of consortium, loss of love and affection, funeral expenses etc. and thus awarded a total sum of Rs. 1,10,000 to respondent Nos. 1 to 3 herein only against the owner, alleged driver and alleged transferee of the vehicle but exonerated the Insurance Co. and the person who was set up as a driver of the vehicle at the time of the accident.

In support of the appeal, learned Counsel appearing for the appellants submitted that the Tribunal erred in exonerated the Insurance Company as well as the driver and wrongly fastened the liability on the owner, alleged driver and the alleged transferee of the vehicle. The aforesaid finding of the Claims Tribunal is also assailed in the cross-examination preferred by the respondent Nos. 1 to 3. Therefore, the first question that arises for consideration is whether the Tribunal committed any illegality in coming to the conclusion that Insurance Company and the driver was not responsible to pay compensation. In this connection attention of the Court was invited to the evidence of Vishnudas (AW/3) and Kalusingh @ Narsingh (AW/4). From the evidence available on the record, it is clear that on the fateful day Kalusingh @ Narsingh was employed as cleaner of the truck. There is a categorical admission made by Vishnu das (AW/3) that he was at the wheel, at the time of accident. Ignoring this categorical admission learned Claims Tribunal has brushed aside the evidence available on the record to hold that the Insurance Company was not liable to pay the amount of compensation. The reasoning assigned by the learned Claims Tribunal is based upon flimsy grounds. From the evidence of Kalusingh @ Narsingh, it is clear that on the fateful day Vishnudas (AW/3) was driving the offending vehicle when it came from behind and hit deceased who was riding a bicycle. In view of the evidence available on the record, there is no force in the contention that on the fateful day vehicle was being driven by Kalusingh @ Narsingh. Learned Counsel appearing from the Insurance Company vehemently criticised and submitted that Vishnudas immediately after commission of the accident ran away from the spot and informed the owner but did not lodge any FIR. Even Kalusingh @ Narsingh, the alleged driver who was arrested on the spot kept mum for eight days and did not disclose that he was on the fateful day employed as a cleaner of the truck and not the driver. Thus, according to him, if the conduct of Vishnudas, Kalusingh @ Narsingh and the owner Abhabykumar is seen in the proper perspective, it becomes clear that these persons have come out with an after-thought story that on the fateful day Vishnudas was driving the vehicle. Thus, according to him this story has been set up to overcome the difficulty with regard to the payment of compensation because undisputedly on the date of the accident, Kalusingh @ Narsingh had no valid licence. The submission although appears attractive but is devoid of force. Vishnu das has categorically admitted in the witness box that he was driving the offending vehicle on the fateful day. He also explains his conduct that immediately after the accident he ran away from the spot apprehending danger to his life and person by the mob fury. There is nothing unusual in the said conduct of Vishnudas. It is also clear from the evidence of Vishnudas that he had informed the registered owner of the vehicle (appellant No. 1 herein) about the accident. On account of the lapses committed by Abhay kumar, it is difficult to hold that some one else other than Vishnudas was driving the vehicle on the fateful day. In this context, the evidence of Kalu Singh @ Narsingh also assumes importance and reveals that the crowd mistook the driver besides his protest. Thus, the evidence available on the record clearly shows that on the fateful day at the time of the accident, the offending vehicle was being driven by Vishnudas and not by Kalusingh @ Narsingh. There is no dispute that Vishnudas had the valid driving licence at the time when the accident occurred. Thus, the finding of the Tribunal of this extent cannot be sustained and deserves to be allowed.

Now coming to the second question with regard to assessment of compensation, learned Counsel for the appellant submitted that Tribunal grossly erred in awarding a sum of Rs. 1,10,000 as compensation. According to learned Counsel for the appellant, the amount awarded by the Tribunal is excessive and is based upon surmises and conjectures. In the cross-objection preferred by the respondent Nos. 1 to 3, on the other hand, claimants contend that the amount awarded by the Tribunal is on the lower side as the Tribunal failed to take into account the correct income of the deceased. Learned Counsel appearing for the parties took this Court through the evidence and other material available on the record in respect of their respective contentions. After going through the material available on the record, in the considered opinion of this Court, the monthly income of the deceased assessed by the Tribunal is inadequate. From the evidence, it is clear that deceased was carrying on side-business of selling butter milk as well as to obtaining agricultural fields from others for cultivation. Parties are rustic villagers and they are not expected to keep meticulous account of earnings of deceased from various sources. Tribunal assessed the daily income of the deceased at Rs. 50 and that too only for a period of 15 days in a month. The accident took place in the year 1997 and considering the other facts and circumstances including the amendment in the Motor Vehicles Act, 1988, one can safely infer and assume the annual income of the deceased at Rs. 15,000 per annum instead of Rs. 9,000 as assessed by the Tribunal while determining the future loss of dependency. After deducting the usual one-third amount which the deceased might have been spending on himself, the annual loss of dependency of the claimants comes to Rs. 10,000 per annum. Looking to the age of the deceased, in the considered opinion of this Court, Claims Tribunal rightly applied the multiplier of 15 to work out the future loss of dependency. Thus, the future loss of dependency comes to Rs. 10,000 x 15 = 1,50,000. To this, another sum of Rs. 25,000 instead of Rs. 20,000 awarded by the Claims Tribunal, can be safely added for compensation under various heads like loss of consortium, loss of love and affection, loss of estate, funeral expenses etc. Thus, the respondent Nos. 1 to 3 herein are entitled to recover a total sum of Rs. 1,75,000 from appellant Nos. 1 and 3 and respondent Nos. 4 and 5 jointly and severally.

Thus, the impugned award passed by the Claims Tribunal stands modified to the extent indicated hereinabove. The appeal preferred by the appellants and the cross objection preferred by the respondent Nos. 1 to 3 stand disposed of in the light of the modification. The enhanced difference amount shall carry interest at the rate of six percent from the date of presentation of the claim petition till it is actually paid and satisfied. Respondent Nos. 1 to 3 shall also be entitled to cost of the cross-objection. Counsel fee Rs. 1,500, if certified.