Dhani Ram Sahu and Another vs Dulichand Sahu and Others

R.S. Sharma, J.—This appeal has been preferred by the owner and driver of the tractor and trolley challenging the award dated 16-1-2009 passed by the Additional Motor Accidents Claims Tribunal (ETC.), Bemetara in Claim Case No. 22/2008. Facts of the case, in brief are as under:

Appellant No. 1 is owner of a tractor bearing registration No. CG 07 D 3784 and trolley bearing registration No. CG 07 D 3785. Appellant No.2 is driver of the tractor and. trolley, who was driving the said vehicle at the time of accident. The tractor and trolley was insured with respondent No.3. On the date of accident, i.e., 20-5-2008, appellant No. 2 was carrying bricks in the tractor and trolley. During the course of transportation of bricks, at about 5 A.M. deceased Pekhlal, aged about 15 years, who was engaged as labourer and traveling on the tractor, fell down from the tractor, came under the wheels of the tractor and trolley and died. Respondents No.1 and 2, who are parents of the deceased, filed an application u/s 166 of the Motor Vehicles Act, 1988 (henceforth ''the Act, 1988'') before the Claims Tribunal claiming compensation of Rs. 5 Lakhs on account of death of their son Pekhlal in the accident.

Learned Claims Tribunal has partly allowed the claim of respondents No.1 and 2 and awarded compensation of Rs.1,87,500/- in their favour holding liability to satisfy the award upon the appellants and exonerating respondent No.3/insurance company from liability to pay the compensation.

Shri P.P. Sahu, learned counsel appearing for the appellants has argued that the Claims Tribunal is not correct in relying upon the First Information Report. He further argued that the Claims Tribunal has committed error in awarding Rs.1,87,500/- as compensation to respondents No.1 and 2 ignoring the age of the deceased who was only 15 years old and was a student of 9th standard. The Claims Tribunal has also committed error in applying multiplier of 15 instead of 10 and committed error in holding that income of the deceased was Rs.15,000/- per annum, which is excessive. He also contended that the Claims Tribunal has committed error in absolving the insurance company from its liability to pay the compensation.

On the other hand, Ms. Sonia. Kuldeep, learned Advocate appearing on behalf of Shri Arun Kochar, learned counsel for respondents No.1 and 2, has contended that the age of the deceased was 15 years and the Claims Tribunal has rightly applied the multiplier of 15 and has rightly awarded compensation of Rs. 1,87,500/- in favour of the claimants. She supported the impugned award passed by the learned Claims Tribunal.

I have heard learned counsel appearing for the parties and perused the record. Learned Claims Tribunal, on closed scrutiny of the evidence available on record, the documents filed and the submissions made by the parties, assessed annual income of the deceased as Rs. 15,000 and after deducting 1/3rd of his income towards his personal and living expenses, assessed loss of dependency as Rs.10,000/- per annum. Looking to the age of the deceased as 15 years, the learned Claims Tribunal has applied multiplier of 15. Learned counsel for the appellants has argued that the Claims Tribunal should have deducted 1/2 of the income of the deceased towards his personal and living expenses instead of deducting 1/3rd.

In the instant case, deceased Pekhlal was aged about 15 years and was a bachelor. Although in normal circumstances, in the case of death of an unmarried man, 1/2 of his income is deducted towards his personal and living expenses for the purpose of computing loss of dependency. There is no hard and fast rule that this norm should strictly be adhered to in each and every case. In the instant case, the deceased was undisputedly a bachelor and looking to the circumstances of the case, the deduction of 1/3d of his income towards his personal and living expenses is justified.

The schedule given in paragraph 40 of the judgment in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, reveals that for the age upto 15 years the multiplier is 15 and 20 and for the age-group 15 to 20 years the multiplier is 16 to 19. In the instant case: the Claims Tribunal has applied the multiplier of 15, which is just and proper.

Learned counsel for the appellants has argued that the tractor and trolley was in use for agricultural purposes, but the Claims Tribunal has held that the tractor and trolley was being used for carrying bricks, which cannot be said to be an agricultural purpose. The Claims Tribunal has further held that the driver did not possess a valid and effective licence to drive the tractor and trolley. The Claims Tribunal has also held that deceased Pekhlal was traveling on the tractor sitting on its engine, which was breach of conditions of the policy of insurance.

Ex.P-1 is the First Information Report. It is mentioned in the First Information Report (Ex.P-1) that deceased Pekhlal was sitting on the engine of the tractor. Moolchand Sahu (AW-2) has stated in paragraph 1 that bricks were loaded in the tractor and trolley; six persons including the driver were sitting in the said vehicle and deceased Pekhlal was sitting on the engine of the tractor. Chhotelal Sahu (NAW-3) has also stated in paragraph 1 that deceased Pekhlal was sitting on the engine of the tractor. From the above evidence, it is evident that six persons including the driver were sitting in the tractor and trolley and deceased Pekhlal Was sitting on the engine of the tractor, which is breach of conditions of the policy of insurance.

Learned counsel for the appellants has contended that the tractor and trolley was being used for carrying bricks for construction of a farmhouse in the agricultural field of appellant No.1. This argument of learned counsel for the appellants is unacceptable. Doolichand Sahu (AW-1) has deposed in paragraph 1 that his son had gone to load bricks in the tractor of appellant No.1. Moolchand Sahu (AW-2) has also stated in paragraph 1 that bricks were loaded in the tractor. Carrying of bricks in the tractor and trolley is not disputed by learned counsel for the appellants. Learned counsel for the appellants has submitted that the appellants were carrying bricks in the tractor and trolley for construction of a farm-house in the agricultural field of appellant No.1, but this fact was not pleaded by the appellants in their written statement before the Claims Tribunal.

It was for the appellant No.1/owner to establish that the tractor and trolley was being used for carrying bricks to his agricultural field, but the appellants have not pleaded this fact in their written statement before the Claims Tribunal. From this, it is evident that the tractor and trolley was being used for the purpose other than the agricultural purpose, which is breach of conditions of the policy of insurance, therefore, liability for payment of compensation cannot be fastened on the insurance company and it rests only on the owner and the driver of the tractor and trolley.

In view of the above, I am of the considered opinion that the finding recorded by the Claims Tribunal against the appellants is finding of fact, and is recorded on the strength of legal admissible evidence. No interference of this Court is called for in the impugned award. The award does not suffer from any illegality and infirmity. In the result, the appeal is liable to be and is accordingly dismissed. No order as to costs.