Madhu and Others vs Prem Shankar and Others

J.K. Ranka, J.�Heard finally with the consent of the parties.

Instant civil misc. appeal has been filed by the claimant/appellant under Section 173 of the Motor Vehicles Act for enhancement of the impugned award dated 24.8.2007 passed by the Motor Accident Claims Tribunal, Jaipur & A.D.J. (Fast Track) No. 7, Jaipur City, Jaipur, in claim case No. 886/2007(1280/2004), whereby the Tribunal has partially allowed the claim petition filed by the claimant/appellant and granted a total sum of Rs. 2,22,500/- as compensation in favour of the claimant/appellant.

The brief facts, as emerging on the face of record, are that four claim petitions came to be filed before the Tribunal regarding the same incident which took place in the mid night of 26.6.2004 when deceased Digambar Singh and other members of Lucky Wines were returning to the office situated at C-Scheme in a Jeep bearing No. R.J.14-U-1960 after dropping party incharge Dinesh Choudhary at house situated at Vidhyadhar Nagar. The said Jeep was being driven by Chatar Singh in its right direction with normal speed. It was alleged that at about 12.05 A.M. in the night at Vidhyadhar Nagar two ladies (one of them was deceased Soni) and three male took lift in the Jeep. After boarding these persons at about 12:10 A.M. in the night when the Jeep reached at Amanishah Nala at that time a truck bearing No. RJ-14-G-4244 coming from Shashtri Nagar, which was being driven by its driver in a rash and negligent manner came from opposite side and also on wrong side made head on collusion with the jeep due to which Digambar Singh and other persons got injured and some other persons died including Smt. Soni, whose representatives have filed the claim petition so also this appeal. It was alleged the said accident took place on account of rash and negligent driving by the respondent No. 1, upon which FIR No. 142/2004 was lodged at Police Station, Vidhyadhar Nagar.

Ex parte proceedings were drawn against respondent No. 2, while evidence was closed against respondent No. 1.

Respondent No. 3 - Insurance Company filed their reply stating therein that on account of not informing the Insurance Company about the accident, there was breach of condition of insurance policy and the driver was not having valid licence and on account of non-impleadment of driver, owner and Insurance Company as party of Jeep No. R.J.14-U-1960 the claim petition is faulted with non-joinder of necessary parties to the claim petition. It was also prayed that the claim petition be decided on the basis of contributory negligence.

The Tribunal after hearing both the parties and for disposal of all the four claim petitions framed as many as five issues including the issue of relief. The Tribunal after considering pleadings of the parties and the material available on record decided all the issues in favour of the claimants and against the Insurance Company awarded compensation in the present case at Rs. 2,22,500/- on heads of loss of income, funeral expenses and loss of love and affection in favour of the claimants of deceased Soni.

Counsel for the appellants vehemently submitted that the Tribunal has not accepted any income when the deceased Soni was working under caterers and was in full time employment. He further contended that merely because no income certificate has been produced, the Tribunal is disentitled to reject the claim. He further contended that the deceased was hale and hearty and was earning suitable income and alternatively he contended that even if the income is adopted to be at Rs. 3000/- per month, which is notionally adopted by the Tribunal then at least the deduction of personal expenses ought not to have been reduced. In support of his contention he relied upon the decision rendered by the Hon''ble Apex Court in the case of Lata Wadhwa and Others Vs. State of Bihar and Others, . He further contended that the future prospect is also required to be allowed as she had consistent income. He further contended that the age of the deceased has been treated as 55 years and, therefore, for the age between 51 to 55 years, the multiplier ought to be 11 in the light of judgment rendered by the Hon''ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, and not 8 as adopted by the Tribunal. He contended that the amount allowed by way of loss of love and affection at Rs. 2500/- is virtually rejecting the claim under this head and ought to have been suitably allowed as the deceased left almost 7 children and some being still minor or unmarried. He further contended that the amount allowed on account of funeral and travelling expenses at Rs. 2000/- and Rs. 4000/- respectively is also low and deserves to be enhanced suitably. Accordingly, he submitted that the amount of award deserves to be enhanced suitably.

Per contra, learned counsel for the respondents submitted that the Tribunal after appreciating the evidence on record and considering all the facts and material available on record has rightly come to the conclusion in allowing the claim to the extent of Rs. 2,22,500/-. He further contended that no material has been placed on record even to show that the deceased was working with the caterers and, therefore, the Tribunal has rightly discarded the version/claim of the claimants/appellants. He further contended that the multiplier has rightly been adopted and it is not required to be interfered with. He further contended that the amount allowed on account of loss of love and affection and other factors has rightly been awarded and the claim is not required to be enhanced or interfered with.

I have considered the arguments advanced by the ld. Counsel for the parties and have perused the impugned order so also the record of the Tribunal.

In my view though the Tribunal has elaborately discussed each and every issue raised by the counsel for the claimants, but in my view the claim deserves to be enhanced on account of following factors.

In my view, the Tribunal has rightly adopted income at Rs. 3000/- per month when the claimants were unable to justify any source of income of the deceased. Therefore, in so far as adopting of income at Rs. 3000/- per month by the Tribunal is concerned, it is not required to be interfered with. However, said income has notionally been adopted, therefore, in my view no deduction was required to be allowed and income has to be taken at Rs. 3000/- alone without any deduction. Accordingly, the claim is required to be modified.

In my view, the age of the deceased was taken to be 55 years, therefore, in the light of judgment of the Hon''ble Apex Court in the case of Sarla Verma (supra), the multiplier is required to be adopted at 11 instead of 8 as adopted by the Tribunal.

In my view, the amount allowed on account of loss of love and affection is also required to be enhanced as I feel that the amount allowed at Rs. 2500/- is on the lower side. In so far as married daughters/claimants Nos. 1 to 5, the amount is required to be enhanced to Rs. 5000/- each and Rs. 10,000/- in favour of claimants appellants Nos. 6 to 8, who are minor children/unmarried children. The amount allowed on account of funeral expenses is also required to be enhanced to Rs. 5000/-. The amount allowed on account of travelling expenses is also enhanced to Rs. 5000/- as against Rs. 1000/- as allowed by the Tribunal.

In the light of above, the claim is required to be worked out as under:--

Accordingly, the claim is enhanced from Rs. 2,22,500/- as allowed by the Tribunal to Rs. 4,61,000/-, as above.

Since the amount of Rs. 2,22,500/- has already been paid by the Tribunal, the Tribunal shall make endeavour to pay/deposit the balance amount of Rs. 2,39,000/- within a period of two months from the date of receipt of certified copy of this order along with interest @ 6% p.a. from the date of the filing of the claim petition, which shall be calculated by the Tribunal on the enhanced claim.

Thus, the appeal is partly allowed. The impugned order/award dated 24.8.2007 is modified to the extent that the enhanced amount of compensation of Rs. 2,39,000/- with interest will be paid by the non-petitioner the Insurance Company. The Tribunal is directed to deposit Rs. 75000/- each of the enhanced amount along with interest rounded off to the nearest thousands in the account of claimant appellants No. 6 to 8 (unmarried children) of the deceased, in the Monthly Income Scheme(MIS) in the nearest Post Office for a period of five years. The balance amount would be disbursed to the unmarried daughters of the deceased Smt. Soni namely Ganga and Punam by Bank Draft/Banker Cheque equally. 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. In the case of minor children, the same will be renewed from time to time till they become major.

The appeal is partly allowed, as indicated above.