Basa Bai and Another vs Ananda and Others

R.S. Garg, J.—This is an appeal by the minor sister and mother of the deceased Limrha, u/s 110-D of the Motor Vehicles Act. The Member, Motor Accidents Claims Tribunal, Khandwa, by his award dated 24.11.1987, passed in Claim Case No. 33 of 1984, has rejected the claim application. Hence, this appeal has been filed. The brief facts leading to the case are that on 3.5.1984, respondent No. 1 was driving tanker No. MBK 9630, belonging to Municipal Corporation, Khandwa and insured with respondent No. 3. According to the claimants, respondent No. 1 was driving the tanker with the permission of respondent No. 2. The tanker was being driven from Khandwa to Jaswadi for supplying water and at that time the deceased Limrha was sitting on the mudguard of the tractor. It is further alleged by the claimants that respondent No. 1 was driving the said vehicle rashly and negligently and on a slope applied the brakes suddenly, resulting in the fall of Limrha from the mudguard and the rear tyre had crushed the body of the deceased, which caused severe internal injuries. The deceased was immediately taken to the hospital where he died the same evening. The counsel for the appellants submitted that the deceased was earning a sum of Rs. 15/- per day and because of his death, they are entitled to compensation of Rs. 47,000/-. It was also contended that they are entitled to Rs. 15,000 under the provisions of Section 92-A of the Act as no fault liability.

The defence of respondent No. 1 was that he was driving the vehicle with proper care and caution. He was neither rash nor negligent and in any case, the deceased all of a sudden fell from the mudguard. On this, the vehicle was stopped. The deceased was asked and at that time, the deceased informed the driver that because his hand slipped, he fell down from the vehicle. All other allegations were also denied and it was further contended that the deceased was not earning Rs. 15/- per day but in fact he was earning only a sum of Rs. 8.25 per day, being a casual labourer.

The learned trial court recorded evidence of the parties and after hearing the parties, came to the conclusion that the claimants could not prove rash and negligent driving by respondent No. 1, they also could not prove that the deceased fell down from the vehicle because of sudden application of the brakes and decided that the claimants were not entitled to any compensation, but for the compensation u/s 92-A of the Motor Vehicles Act.

It was contended in appeal that the deceased was sitting on the mudguard of the tractor and, therefore, he was an occupant of the vehicle. The accident was the result, arising out of the use of the vehicle and, therefore, the finding recorded by the trial court that the rash and negligent act was not proved and the claimants are not entitled to any compensation deserves to be set aside and the claim application should be allowed in full.

Opposing the contention, it was submitted by the counsel for the owner and the insurance company that unless rash and negligent act is proved, the claimants would not be entitled to any compensation. It was also contended that even if compensation is to be awarded, then a proper multiplier should be applied, considering the age of the mother of the deceased, i.e., appellant No. 2.1 have gone through the entire record with the assistance of the counsel appearing. The evidence of Dr. M.K. Mishra, PW 3, shows that the deceased had as many as 8 injuries. He had swelling over the pelvic region in the size 3 cm. x 2.5 cm., a lacerated wound on the chin, a linear abrasion measuring 3''/2 cm. x 1/4 cm. on the left lumbar region, an abrasion on the bone of the right leg 6 cm. x 1 cm., an abrasion 3 cm. above injury No. 4, an abrasion on the right ankle 2 cm. x 2 cm. and lastly, he found that there were signs of free fluid in both the pelvic regions. According to the post-mortem report, the injuries were found on the liver, spleen, bladder, etc. The cause of death was shock and haemorrhage. In cross-examination, it was suggested to the doctor that on being overrun by a tanker or a loaded trolley, such injuries as were found on the body of the deceased sould not be caused. To this, the doctor replied that such injuries could not be caused if a tanker or a loaded trolley overruns a man. A perusal of the post-mortem report and the statement of the doctor would show that the deceased had suffered as many as 7 external injuries and various internal injuries. I am not ready to accept the explanation given by the driver that the deceased simply fell from the tractor, which caused all these injuries. It would be unintelligible to accept that from a simple fall or a fall with force injuries like the present could be caused. Obviously, there was something more. Unfortunately, the same is not on record. The defence that the deceased simply fell from the mudguard of the tractor appears to be a false plea. The driver has stated that he had applied the brakes at a distance of one furlong from the place where the deceased had fallen from the tractor. If the tractor was driven at a very moderate speed, as alleged and stated by the driver, then the tractor could be controlled and stopped immediately. The distance of one furlong in itself shows the speed of the tractor and the control of the driver over the same. I have no hesitation in holding that the tractor-tanker was being driven rashly and negligently. If the driver could not stop the tractor-tanker up to a distance of 200 metres, noticing that a particular man had fallen from the vehicle, then obviously the driving was rash and negligent.

It was next contended that the deceased died of the accident, wherein the vehicle was not in use. It is not disputed by the respondents that the deceased was sitting on the mudguard and was working with respondent No. 2. It is to be inferred from the facts that an employee of respondent No. 2, a daily wager, under the directions of the said authority, was going with the tractor-tanker and was sitting on the mudguard. Any fall from the said mudguard would certainly be the result of the use of the vehicle. Under these circumstances, I hold that the deceased fell from the vehicle when the same was in use and the injuries suffered by him were the injuries suffered in the motor accident.

So far as the question of compensation is concerned, it was submitted by the counsel for the appellants that the minimum wages, as applicable in 1984, should be treated to be the earning of the deceased. I am afraid, the same cannot be accepted to be the universal rule. In the instant case, the claimants came with the case that the deceased was earning Rs. 15/- per day, while, on the other hand, the respondents have proved that he was earning Rs. 8.50 per day. I would accept the evidence of the respondents and hold that the deceased was earning Rs. 8.50 per day.

The appellant No. 1 is the minor sister of the deceased. She is not entitled to any compensation and, therefore, no order can be passed in her favour. Appellant No. 2 is the mother of the deceased. She is a widow and she was about 55 years of age at the time, when the claim petition was filed. Out of Rs. 8.50, which comes to about Rs. 250/- per month, if we have to apportion the earning between the deceased and his mother, the mother would be entitled to Rs. 125/- per month, making it Rs. 1,500/- per year. As such, the dependency of appellant No. 2 is determined as Rs. 1,500/- per year. She was 55 years of age and is reported to be alive even after a period of 10 years from the date of the accident. In India, the longevity can be deemed to be 70 years. Appellant No. 2, therefore, would be entitled to compensation at the rate of Rs. 1,500/- per year and under the circumstances, I think it fit to apply the multiplier of 15. Accordingly, she is held entitled to the compensation of Rs. 22,500. The trial court has already awarded a sum of Rs. 15,000/- under the head of no fault liability. As I am holding that appellant No. 2 is entitled to Rs. 22,500/-, the said amount of 15,000/- is to be adjusted.

Accordingly, the appeal is partly allowed and it is directed that respondent Nos. 1 to 3 jointly and severally are liable to pay Rs. 22,500/- to the appellant No. 2. The appellant No. 2 is also entitled to interest on the said amount at the rate of 12 per cent per annum from the date of the application.

The appeal is accordingly allowed to the extent stated above. However, there shall be no order as to costs.