Jugal Kishore and Others vs Ram Singh and Others

A.M. Sapre, J.—This is an appeal filed by the claimants who are legal representatives of the deceased u/s 173 of the Motor Vehicles Act by the claimant against an award dated 5.3.2001, passed by the learned 1st Additional Member, Motor Accident Claims Tribunal, Mandsaur in Claim Case No. 235 of 1998. By impugned award, the Tribunal has awarded a total sum of Rs. 50,000 with interest to the claimants for the death of one Bheru Giri, who died in vehicle accident. According to claimants, the compensation awarded is on a lower side and hence, it needs to be enhanced. It is for claiming enhancement in the compensation awarded by the Tribunal, the claimants have come up in appeal. So the question that arises for consideration is, whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence is made out in the compensation awarded and if so, to what extent?

It is not necessary to narrate the entire facts in detail such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation, etc. It is for the reason that firstly all these findings are recorded in favour of claimant by the Tribunal. Secondly, none of these findings a though recorded in claimants'' favour are under challenge at the instance of any of the respondents such as, owner/driver, or Insurance Company either by way of cross-appeal or cross-objection. In this view of the matter, we do not wish to burden our judgment by detailing facts on all these issues.

As observed supra, it is a death case. On 29.1.1997, Bheru Giri, aged about b 42 years, an agriculturist and Pujari by occupation, met with a Motor Accident and died, giving rise to filing of claim petition by his legal representatives out of which this appeal arises, seeking compensation for his death. The case was contested by the respondents. Parties adduced evidence. By impugned award, the Tribunal partly allowed the claim petition and awarded a total sum of Rs. 50,000 to the claimants. It was held that deceased''s yearly income from his occupation was Rs. 12,000. However, the Tribunal finding that deceased died due to his own negligence and, hence, dismissed the claim by holding that they can only get a sum of Rs. 50,000 towards no fault liability. It is on this basis, an award for Rs. 50,000 was passed which is impugned by the claimants in this appeal.

Heard Mr. Sanjay Patwa, learned Counsel for the appellants and Mr. P.K. Gupta, learned Counsel for respondent No. 3 - Insurance Company.

Having heard learned Counsel for the parties and having perused record of the case, we are inclined to allow the appeal in part.

We have gone through the evidence adduced by the claimants. No one has entered in witness box to lead any rebuttal evidence and hence, we have to only appreciate the evidence led by the claimants on the question of nature of accident and the income of the deceased.

P.W. No. 1 is Jugal. He is the son of deceased. P.W. No. 2 is Behru Lal, whereas P.W. No. 3 is Rasid Khan. So far as P.W. No. 2 and P.W. No. 3 are concerned, both are or let us say, claim themselves to be eye-witness to the incident. In substance, their version is that deceased was dashed by offending Tractor/Trolley when he was asking for a lift from the driver of the Tractor. This version appears to be visible when one reads the statement of these two witnesses who happened to be near the road and could see the incident. Accepting what these two witnesses say to be the correct one because there is no rebuttal evidence led by the respondents, we find that it is a case of negligence at the instance of driver of Tractor/Trolley. When some one is asking for lift to a driver and if he does not want to give him then atleast he has to ensure that no untoward incident occurs. The driver of tractor should have carefully driven the Tractor at that point of time because he was in no mood to stop the vehicle. Asking for a lift is no negligence, whereas driving a vehicle causing injuries to a person asking the lift amounts to negligence. We, therefore, hold on reading the version of P.W. 2 No. 2 and P.W. No. 3 that driver of Tractor and Trolley was responsible for causing injuries and in consequence death to Bheru Giri who was only asking for a lift. In this view of the matter, the finding of the Tribunal on the question of negligence is reversed and it is held that death did not occur to Bheru Giri on account of his own negligence but it occurred on account of negligence on the part of driver of offending vehicle i.e., a Tractor/Trolley owned by non-applicant No. 2/respondent No. 2 and driven by non-applicant No. 1/respondent No.1 and insured with non-applicant No. 3/respondent No. 3. In this way, all the three are held jointly and severally liable to suffer an award arising out of the accident in question.

This takes us to a question of quantum. Although, Tribunal has held that deceased''s yearly income was Rs. 12,000 per year, we hold it at Rs. 15,000 per year. Indeed, when the Legislature has fixed Rs. 15,000 to be the notional income for determination of compensation then, it is all the more for the Tribunal to atleast take Rs. 15,000 to be the basis for determining the compensation payable to claimants. Even otherwise, the evidence brought on record by the claimants indicate that deceased was doing the work of Pujari and was also doing agricultural labour. One c can, therefore, reasonably conclude that he was earning Rs. 15,000 per year from his occupation. We, therefore, hold that deceased''s yearly income was Rs. 15,000. Deducting 1/3rd, we get a sum of Rs. 10,000 for dependency. Applying the multiplier of 15, as per schedule for the age group of 40-45 years, we get a figure of Rs. 1,50,000. In addition, a sum of Rs. 25,000 can be awarded in lumpsum towards conventional heads, thereby making a total of Rs. 1,50,000 + Rs. 25,000 = Rs. 1,75,000.

In other words, the claimants are held entitled for a total sum of Rs. 1,75,000 by way of compensation for the death of Bheru Giri.

The compensation awarded to the claimants is a just, reasonable and proper looking to the facts and circumstances of the case and taking into account e the law laid down by the Supreme Court in these types of cases. Indeed in such cases, no fixed and any static formula is provided for determining the compensation and the same is required to be determined on the basis of evidence adduced and the relevant factors mentioned supra. It is on this basis, the Courts have to work out award of reasonable compensation.

Learned Counsel for the appellant cited some authorities for claiming enhancement. We have gone through these authorities. In our opinion and as observed supra, every case depends upon facts of each case and one can rely upon the cases for awarding compensation.

In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. The enhanced sum will carry interest at the rate of 6% p.a. from the date of application till realization. All other findings are upheld being not under challenge.

Counsel fees Rs. 1500, if certified.