Bhay Kuwar and Others vs Subhash and Others

J.K. Maheshwari, J.—This appeal has been filed by the Appellants u/s 173 of the Motor Vehicles Act against an award dated 28.6.2008, passed by learned First Additional M.A.C.T., Shajapur, in Claim Case No. 38 of 2008. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 1,59,000 with interest arising out of an accident occurred on 4.5.2007 causing the death of Bahadursingh.

The Appellants had filed the claim petition under Sections 166 and 140 of the Motor Vehicles Act, seeking compensation to the tune of Rs. 15,00,000. It is pleaded by the claimants, i.e., widow, son and mother that the sole bread-earner of the family has died in the accident, however, the compensation as prayed in the claim petition may be awarded.

The Claims Tribunal has awarded a total sum of Rs. 1,59,000 out of which Rs. 1,44,000 has been allowed in the head of loss of dependency assuming the earnings of the deceased Rs. 3,000 per month only, which annually comes to Rs. 36,000. The Tribunal accepting the annual loss of dependency to be Rs. 12,000, applied the multiplier of 12 accepting the age of the deceased in between 50-55 years while for pain and suffering Rs. 2,000 has been allowed, for funeral expenses Rs. 2,000, towards loss of consortium Rs. 5,000 and Rs. 6,000 for loss of love and affection to each of the claimants.

Mr. Jain, the learned Counsel for the Appellants submits that the Tribunal has committed an error in accepting the earnings of the deceased to be Rs. 36,000 per annum particularly looking to the fact that he was an agriculturist and the Bhu Rin Pustika as well as khasra entries are available on record, thereby it is clear that total land of 17-18 bigha approx comes in the name of Appellants, after demarcation of the share of all the three brothers. It is also contended that the deceased was also doing the work of milk vending, the passbook thereof in this respect has been produced as per Exh. P10. In such circumstances, the earnings from both the sources ought to have been counted while determining the earnings as well as loss of dependency. The finding as recorded by the Tribunal that no proof is available about doing the work of milk vending is adverse. It is also contended that the Tribunal has erred in granting the amount of compensation on the basis of Rs. 12,000 per annum while accepting the earnings as Rs. 3,000 per month and the loss of dependency after deducting 1/3rd only Rs. 12,000 is prima facie against the settled position of law. Therefore, the earnings may be adequately accepted while awarding the compensation. It is also contended that in conventional heads the amount as allowed by the Tribunal is inadequate and is liable to be enhanced.

On the other hand, Mr. Khare, learned Counsel appearing for the Respondent insurance company has relied upon the findings recorded by the Claims Tribunal and argued that the award of compensation is just, proper and reasonable.

After having heard learned Counsel for the parties and looking to the documents regarding agriculture (Exhs. P11 to P14), it is apparent that the agricultural land was in the name of deceased. Even on death of the deceased such agricultural land remains with the family members, but the loss of supervision of land due to his death may be counted for the purpose of determination of earnings by his death. Simultaneously, it is apparent that the deceased was doing milk vending business and the passbook (Exh. P10) in this respect has been produced. Thus, it can safely be accepted that deceased was earning from two sources. In this context in the opinion of this Court, if we accept loss of supervision at Rs. 2,500 per month and Rs. 1,500 per month from the milk vending, thus in the opinion of this Court, the earnings of the deceased may be safely determined at the rate of Rs. 4,000 per month, which annually comes to Rs. 48,000. Looking to the fact that the wife of the deceased has filed the claim petition, however, the dependency shall be determined by applying 2/3rd and after deducting 1/3rd towards the personal expenses, it comes to the tune of Rs. 32,000 per annum. As per the finding of the Tribunal, the age of the deceased was in between the age group of 50-55 years, however, applying the multiplier of 11 thereby loss of dependency comes to the tune of Rs. 3,52,000. The Tribunal has awarded the total sum of Rs. 15,000 in other heads, therefore, in the opinion of this Court, it is further liable to be enhanced by Rs. 10,000, therefore, the total sum comes to Rs. 25,000 in conventional heads. Thus, the total compensation comes to the tune of Rs. 3,77,000. The Tribunal has awarded Rs. 1,59,000, if we deduct the same then the enhanced amount comes to the tune of Rs. 2,18,000, which is liable to be enhanced.

Accordingly this appeal is allowed in part. The compensation as allowed by the Claims Tribunal is enhanced to the sum of Rs. 2,18,000 in addition to the compensation already awarded by the Tribunal. The enhanced amount shall carry interest at the rate of 7.5 per cent per annum from the date of claim petition till its realization. In the facts and circumstances of the case parties are directed to bear their own costs.