Johari Lal and Others vs National Insurance Company Ltd. and Others

J.K. Ranka, J.—The instant civil misc. appeal has been filed by the claimant-appellant under section 173 of the Motor Vehicles Act, 1988, for enhancement of the impugned award dated 21.11.1998 passed by the MACT, Kotputli, District Jaipur, in claim case No. 253/95, whereby the claimant-appellants have been awarded compensation of Rs. 1,65,000.

The brief facts emerging on the face of the record are that a claim petition was filed before the Tribunal u/s. 166/140 of the M.V. Act in 1995 against Insurance Company (non-petitioner No. 1), driver Shravan Kumar (non-petitioner No. 2) and the owner of the truck Salim Ahmed (non-petitioner No. 3) alleging therein that a claim of Rs. 28,23,000/- as compensation on account of road accident on different heads, in which the only son of Joharilal, Dinesh alias Ramanand died. It is alleged in the claim petition that on 01.06.1995, at around 3pm, the driver of the truck, bearing number RJ14 G-0854, Shravan Kumar was driving the truck in a rash and negligent manner and in the wrong side came from the direction of Behror, hit Dinesh alias Ramanand, Kalu, Ramswaroop and Sanju, as a result of which Dinesh alias Ramanand died on the spot and other persons also sustained injuries.

On hearing the parties, the Tribunal framed the following issues:

"1. Whether on the said date, the said vehicle was being carelessly driven by non-petitioner No. 2, resulting in the death of Dinesh (alias Ramanand) and injury to Kalu, Ramswaroop and Sanju?

Whether non-petitioner No. 2 was employed by non-petitioner No. 3 and the accident occurred in the course of employment?

Whether the claimants were entitled to receive compensation from the non-petitioners and if yes, how much is the quantum of the compensation that each of the claimants must be paid?

Whether the non-petitioners are not liable to pay any compensation in the light of the preliminary objections and specific averments raised by them?

Whether Ashokdevi (alias Santosh, ex-wife of the deceased) has remarried and is not dependent on the deceased and hence has no right to receive any compensation?

Relief"

The Tribunal, after examination of the witnesses Joharilal (AW1), Hiralal (AW2), Batori (AW3), Ashokdevi (AW4), Ramswaroop (AW5), Kaluram (AW6) and Sanju (AW7)), the documentary evidence submitted by the claimants, and considering the submissions of both the parties (the non-petitioners did not adduce any oral or documentary evidence) and the material available on record, held as follows:

"1. Issue 1 - All the witness produced by the claimant have deposed that the accident occurred due to the rash and negligent driving by the truck driver. The oral evidence is supported by the documentary evidence. The investigating officer has also found the driver to be at fault and has presented a challan against him in the competent court. Hence, the tribunal held that the driver Shravan Kumar has caused the accident due to his careless driving.

Issue 2 - The tribunal held in favour of the claimants as non-petitioner No. 3, the owner of the truck, has admitted under sec 133 of the M.V. Act, that non-petitioner no 2 was under his employment at the time of the accident.

Issue 4 - The learned counsel for the insurance company submitted that since the parents of the deceased and his wife have filed separate claims, their claims must be dismissed. The Tribunal held that it has been cleared by Ashokdevi that she was unaware of the claim filed by the deceased''s parents and it would be wrong to dismiss the claim on such technicalities.

Issue 5 - Even though Ashokdevi had concealed the fact of her remarriage and the pendency of the divorce petition relating to her marriage to the deceased, and even though she cannot be considered to be a dependent on the income of the deceased, she would be entitled to some compensation by virtue of being the wife of the deceased.

Issue 3 - Compensation - According to the post-mortem report of the deceased, he was about 25 years of age at the time of the accident. Learned Counsel for the insurance company has submitted that the parents of the deceased are not dependent on his income as Joharilal has accepted that he (Joharilal) has been earning Rs. 1000 per month. Joharilal and Munnidevi are the parents of the deceased and Manjukumari and Kamlesh are his sisters. The Tribunal has after considering pleadings of the parties and material on record held as under:--

� the sisters cannot be considered to be the dependents on the income of the deceased.

� The income of joharilal as Rs. 1000 pm is not sufficient to maintain a family of four members.

� Joharilal claims that the deceased used to earn Rs. 5000/- pm as a private doctor but since no cogent and reliable evidence was produced to prove his job as a private doctor and, therefore, as per schedule II of the MV Act, his notional income is taken to be Rs. 15,000/-. Out of this annual income, one third i.e. Rs. 5,000/- per year is taken as personal expenditure and the rest Rs. 10,000/- per year as expenditure on family. On the basis of the age of the deceased and number of dependents in his family, the Tribunal applied multiplier of 15.

� Compensation calculated as: Loss of Income = Rs. 10,000 x 15 = Rs. 1,50,000/-.

Mental agony, physical pain, loss of love and affection, protection to parents as Rs. 10,000/-.

Funeral expenses = Rs. 5,000/-.

TOTAL = Rs. 1,65,000/-.

Out of this Rs. 50,000/- had already been paid as interim award. Now, the award of the remaining Rs. 1,15,000/- is liable to be awarded."

Therefore, the Tribunal has awarded a sum of Rs, 1,15,000/- with interest @ 12% p.a. from 04.08.95. The widow of the deceased (Ashokdevi alias Santosh) has already received Rs. 30,000/- as interim award and does not have the right to receive any more compensation.

Learned counsel for the appellants submitted that the impugned award passed by the Tribunal is based on conjectures and surmises ignoring the facts and the law laid down by the Hon''ble Apex Court. He further contends that the deceased was earning Rs. 5000/- per month as a Doctor but the learned Tribunal has erroneously assessed the income of the deceased at Rs. 15000/- per annum, which is grossly low and unreasonable. He further contended that the multiplier at 15 applied by the Tribunal is very low. He further contended that the Tribunal has erred in granting only Rs. 10,000/- on the head of loss of love and affection, physical and mental agony and future protection to the parents, which is very low so also the expenses granted on the head of funeral at Rs. 5000/- is very little and finally submitted that compensation be enhanced.

Per contra, learned counsel for the respondents while supporting the impugned order submitted that the Tribunal after considering each and every aspect of the matter has rightly passed the award in favour of the claimants, which is not required to be interfered with. He further submitted that the claimants have not produced any cogent evidence on record to prove the income of the deceased as Rs. 5000/- per month and the multiplier adopted by the Tribunal is just and proper in accordance with law. He contended that compensation granted at Rs. 1,65,000/- is just and proper.

I have considered the arguments advanced by learned counsel for the parties and perused the impugned award.

In my view, the Tribunal has scanned, analysed and considered every aspect of the matter, however, the claim, which has been allowed at Rs. 1,65,000/- is on the lower side and deserves to be enhanced for the following reasons:--

"At the particular point of time, the deceased was aged about 25 years and had he continued to live would have certainly helped his parents so also the other family members economically and physically. It is also an admitted fact that though the deceased was working as a private Doctor, but since no evidence with regard to monthly income of the deceased has been led by the claimants-appellants, therefore, the Tribunal disbelieved the version of earning at Rs. 5000/- per month and has gone on the basis of adopting notional income as per Schedule-II. But the fact of the deceased being a Doctor cannot be brushed aside and normally it cannot be expected that a Doctor would be earning just about Rs. 15000/- p.a. It is also an admitted fact that the multiplier adopted by the Tribunal considering the age of the deceased being 25 years has been applied at 15, which is on the lower side as the Schedule-II prescribes multiplier of 17. Further the amount allowed by way of loss of love and affection, mental agony and other factors at Rs. 10,000/- on the face of it appears to be on the lower side."

Therefore, considering all above facts specially the multiplier and other factors referred to hereinabove, it will be appropriate to enhance the compensation without specifying various heads to Rs. 3,00,000/- as against Rs. 1,65,000/- allowed by the Tribunal. In effect, the claim is enhanced by Rs. 1,35,000/-, which can be said to be just and proper. The same shall carry interest at the rate of 6% per annum but from the date of the award. The Tribunal is directed to deposit 85% of the enhanced amount along with interest rounded off to the nearest thousands in the name of claimants jointly in the Monthly Income Scheme(MIS) of the nearest Post Office of the residence of the claimants for a period of five years. The 5% of the enhanced amount with interest will be deposited jointly in the name of claimants in the saving account with the same post office with the direction to permit withdrawal of monthly interest/quarterly interest on the said Monthly Income Scheme to their account. The balance of the enhanced amount would be disbursed to the claimants by Bank Draft/Bankers Cheque. The above exercise to be done within a period of two months from the date of receipt of certified copy of this order. It is made clear that the appellants will be allowed interest only as aforesaid and full amount on its maturity and will not be allowed to take loan or pledge the same with Post Office or raise loan on the said MIS. The appeal stands disposed of, as indicated above.