Gendalal and Others vs Hakim Singh and Others

This appeal is only for enhancement of compensation. Though cross-objection has been filed but as ordered by this Court no affidavit intimating the date on which notice was received has been filed and there is nothing on record to demonstrate that the cross-objection is filed within time. Even otherwise, insurance company is not having any permission u/s 170 of the Motor Vehicles Act to contest on all the grounds, therefore, the cross-objection is not maintainable and is dismissed with costs of Rs.5,000/.

Now the question involved in the case is regarding quantum of compensation. No other finding is under challenge.

Deceased Hukum Singh died on spot after tractor owned by respondents no. 1 to 3, son of Habbulal and driven by respondent no. 5 Subodhkumar, dashed against Hukum Singh, which resulted into his death, therefore the deceased was a third party and insurance company is liable to indemnify the third party.

Gendalal (A.W. 1) had deposed that deceased was earning Rs.60/- per day and from his income he was maintaining the family consisting of his parents and his son. On perusal of entire cross-examination of Gendalal, there is no cross-objection regarding the income of deceased by the insurance company. Munshilal (A.W. 2) has deposed about the rash and negligent driving. No evidence has been led by insurance company, owner and driver of the vehicle before the Claims Tribunal. In the circumstances, Claims Tribunal has committed error in holding that on failure to produce the account the income of the deceased at Rs. 60/- per day cannot be accepted. This finding is perverse and contrary to evidence on record. The witnesses have categorically deposed that the deceased was a labour and earning Rs. 607-per day. It is not expected from a labour to maintain account of his income. Claims Tribunal has expected too much from a labour. The reasons for ascertaining the income of deceased at Rs. 800/- per month is perverse and contrary to evidence on record. The finding is set aside.

Considering the facts of the case, if the deceased was earning Rs.60/-per day, it can safely be presumed that the deceased was working atleast 25 days in a month and thereby earning Rs. 1,500/-. We, therefore, determine the income of deceased at Rs. 1,500/- per month. One third of the income, i.e., Rs. 500/- was spent by deceased upon himself and remaining Rs.1,000/-were spent upon his family members. Thus, yearly dependency is Rs. 12,000/- per annum. The claimants are parents and minor son of the deceased. Deceased was aged about 39 years, therefore, multiplier of 16 will be applicable in this case. Applying the multiplier of 16 the compensation comes to Rs. 1,92,000/-. To this amount, appellant is further entitled to a sum of RS. 28,000/- for damages under various heads, such as, loss of estate, funeral expenses etc. The appellant is entitled for total compensation of Rs. 2,20,000/-. The appellant shall further be entitled for interest at the rate of 8% per annum from the date of filing of application on the enhanced amount. The award is enhanced to this effect.

Out of the amount of compensation, the parents will be entitled to a sum of Rs. 50,000/- with interest. Remaining amount with interest shall be payable to minor Deewansingh, which shall be kept in a fixed deposit in a nationalized bank and for the maintenance and education of Deewansingh, Deewansingh will be entitled for the interest accrued from the deposit in the bank. The interest shall be made payable to Deewansingh at quarterly basis. The amount shall continue under deposit and can be disbursed to Deewansingh on his application, which shall be decided by the Claims Tribunal in accordance with law.

Appeal succeeds in part arid cross-examination is dismissed with costs of Rs.5,000/-.