Gauribai and Others vs Sheukh Anwar and Others

S.K. Seth, J.—This order shall also govern disposal of M.A. 2058/2005--Smt. Gauribai v. Sheikh Anwar and 2 Ors. as both appeals for enhancement arise out of common accident.

These two appeals are for enhancement of compensation awarded by the 3rd Motor Accident Claims Tribunal, Mhow in M.V. Case No. 60/04 and M.V. Case No: 59/04. Relevant facts in brief leading to these appeals are as under.

On 24.7.2004 deceased Radheshyam along with his wife Gauribai and other passengers was travelling in a tempo. A truck bearing registration No. MP 13 E-0626 came from opposite direction and ran into the tempo. As a result, deceased Radheshyam and his wife Gauribai sustained grievous injuries. Initially they were taken to private hospital in Indore where Radheshyam succumbed to injuries on 25.7.2004 whereas Gauribai was shifted to M.Y. Hospital (Govt. Hospital) where she remained as indoor patient for about 17 days. Two separate claim petitions were filed; one by the legal representatives of deceased Radheshyam and another by Gauribai. It was claimed that accident occurred due to rash and negligent driving by respondent 1 the truck driver. It was further claimed that on the date of accident the truck belonged to respondent 2 and was insured with respondent 3. On account of death of Radheshyam, a sum of Rs. 15 lakhs was claimed as compensation. For the personal injuries sustained by Gauribai, she also claimed a total sum of Rs. 15 lakhs from the respondents jointly and severally.

Respondents 1 and 2 remained exparte; however, claim petitions were contested by Insurance Company. Appreciating evidence Claims Tribunal awarded compensation of Rs. 1,85,000 (one lakh eighty five thousand) for the death of Radheshyam and Rs. 40,000 (forty thousand) wrongly mentioned as Rs. 35,000 to Gauribai for the injuries sustained by her in said accident. Being dissatisfied with the amount of compensation awarded by the Claims Tribunal, these two separate appeals have been preferred for enhancement. In this Court also respondents I and 2 i.e., driver and owner of truck, did not participate in the hearing despite service of notice and Insurance Company alone contested the appeals.

Before dealing with the contentions, it would be appropriate to mention that finding of Tribunal regarding the accident and the manner, in which it occurred, is no longer in dispute. The joint and several liabilities on respondents are also not in dispute. Thus, the finding of the Tribunal that respondent 1 because of his rash and negligent driving of offending vehicle was responsible for causing accident on the fateful day is hereby confirmed. It is further confirmed that on the fateful day, respondent 1 was driving the truck and it was belonging to respondent 2 and insured with respondent 3. Thus, it is clear that the Tribunal was right in holding respondents are jointly and severally liable to pay compensation. Now question for consideration is, was the amount awarded by the Tribunal represented just amount of compensation?

In support of these two appeals, learned Counsel for appellants submitted that the Tribunal wrongly held that the annual income of deceased was Rs. 15,000. It was also submitted that looking to the age of deceased, Tribunal wrongly applied multiplier of 16. It was also contended that no amount for loss of consortium was awarded by the Tribunal. So far as case of Gauribai for the personal injuries is concerned, it is contended that no amount is awarded for the furture medical expenses. Award of the Tribunal was further criticized by learned Counsel for appellants that claimant Gauribai was entitled to compensation under the head of special diet and other hidden expenses during the period when she remained as indoor patient and the said amount is also not awarded by the learned Claims Tribunal. Thus, according to learned Counsel for appellant, appeals deserve to be allowed with costs. Per contra, learned Counsel appearing for respondent 3 supported the awards and submitted that no interference is warranted and the amount awarded by the Tribunal was just and adequate amount of compensation. Thus, he submitted that appeals deserve to be dismissed.

After having heard learned Counsel for parties and going through material available on record, in the considered opinion of this Court, both above appeals deserve to be allowed to the extent indicated herein below.

To determine future loss of dependency, learned Tribunal discarded the evidence of Gauribai and P.W. 3 Mahesh and determined the annual notional income of deceased at Rs. 15,000. After deducting usual 1/3rd amount, learned Tribunal applied multiplier of 16 to work out the future loss of dependency (10,000 x 16 = 1,60,000). To this, Tribunal added Rs. 10,000 towards funeral expenses and Rs. 15,000 for loss of love, affection and consortium. Thus, Tribunal awarded a total sum of Rs. 1,85,000 (one lakh eighty five thousand) for death of Radheshyam. So far Gauribai is concerned, as pointed out herein above, Tribunal awarded a total sum of Rs. 40,000. It is the case of claimants that Radheshyam had agricultural holdings in his name and used to earn income from agricultural operations. Besides this, deceased Radheshyam was a skilled labourer and was working as mason with one Mahesh a petty contractor. Mahesh was examined as P.W. 3 in M.V. Case No. 60/04. Ignoring the evidence learned claims Tribunal accepted the annual notional income at Rs. 15,000. So far as agriculture income is concerned, Tribunal in absence of evidence rightly ignored it, but there is no justification for ignoring income of deceased as mason. In view of absence of rebuttal evidence, there is no difficulty in holding that deceased was a skilled labour and was engaged by Mahesh, petty contractor. Even if it is assumed that deceased Radheshyam was working out through the month with Mahesh, he could not have been worked for all 30 days put together continuously. There is necessity of giving a holiday. Taking a rough and conservative estimate of working days in a month, one can safely assume that deceased was working for 25 days in a month. The daily income of skilled labourer in the prevalent circumstances can be worked out at Rs. 100 (hundred). Thus, the total monthly income of deceased Radheshyam was Rs. 2,500. Deducting usual 1/3rd amount which the deceased must have been spending on himself, annual loss of dependency comes to Rs. 20,000 (twenty thousands). Tribunal without assigning any reason has applied multiplier of 16 for purpose of calculating future loss of dependency. Deceased at the time of accident was hale and hearty young man of 35 years of age. On account of his untimely death in the tragic circumstance, the widow and children are left with almost in the wilderness. In the opinion of this Court, multiplier of 17 would meet the ends of justice. Thus, that total loss of future dependency comes to Rs. 3,40,068 (three lakhs forty thousands, sixty eight). The Tribunal, as pointed out hereinabove, had already awarded a sum of Rs. 10,000 towards funeral expenses and Rs. 15,000 towards love, affection and consortium. Thus, the appellants in Appeal No. 2056/05 are entitled to recover jointly and severally a sum of Rs. 3,65,068 (three lakhs, sixty five thousand, sixty eight). The enhanced amount shall also carry interest at the rate of six percent per annum till it is actually paid to the appellants.

Now coming to the case of personal injuries as pointed out herein above, the Tribunal awarded a sum of Rs. 40,000 to Gauribai. Besides herself, Gauribai also examined Dr. Mehrotra (P.W. 3 in M.A. 2058/2005) and he proved the disability certificate Ex. P. 37. According to certificate, claimant Gauribai sustained permanent disability to the extent of 20%. From the evidence it is clear that Gauribai is a house wife. Being house wife, her latent financial contribution to the family cannot be ignored. From the evidence it is also clear that she sustained fracture in right hand and taking a conservative estimate of permanent disability, in the opinion of this Court Gauribai is entitled to recover towards this count a sum of Rs. 10,000. The Tribunal also ignored the fact that Gauribai also remained in hospital for about 17 days and there are so many hidden expenses connected with hospital stay of a patient. On that score also no amount was awarded by Tribunal. A sum of Rs. 5,000 under this head would meet the ends of justice. Thus, Gauribai for her personal injuries besides the amount awarded by the Tribunal is also entitled to recover from respondents 1, 2 and 3 jointly and severally additional amount of Rs. 15,000 (fifteen thousands). In other words she is entitled to recover Rs. 55,000 from respondents jointly and seyerally. The enhanced amount shall carry interest at the rate of six percent till the enhanced amount is actually paid.

Thus, in view of forgoing discussion both appeals are partly allowed to the extent indicated herein above with costs throughout. Counsel fee Rs. 1,000 (one thousand) if certified, in each appeal. Let a copy of this order be retained in the file of M.A. No. 2058/2005 Smt. Gauribai v. Sheikh Anwar and 2 Ors.