(Mst.) Indra Singh Patel and Others vs Munnalal and Others

U.C. Maheshwari, J.

Appellant/claimant has preferred this appeal against the award dated 9.9.2002 passed by Additional Motor Accident Claims Tribunal Maihar in claim Case No. 75/1997 for enhancement of compensation awarded by the Tribunal.

On 17.4.1997 at about 9.00 a.m. Shri Ram Naresh aged about 23 years husband of appellant No. 1 while father of other appellants was going to Prism Factory from Satna in a jeep bearing registration No. M.P. 19-A/7849 driven by respondent No.1 Munna Lal Soni in rash and negligent manner, on reaching near to village Lohra Chhibora respondent No.1 lost his control over the jeep while crossing the other vehicle and collided with tree. Resultantly, deceased Ram Naresh and other persons sustained injuries, taken to District Hospital, Satna, deceased was referred and shifted to Medical College, Jabalpur, where he died on 24.5.1997. The incident was reported to P.S. Rampur Baghelan, on investigation respondent No. 1 was charge sheeted. The deceased was working as Supervisor in the Prism Cement Factory and getting salary Rs. 2,000/- p.m. due to untimely death appellants have been deprived from bread winner, with these pleadings appellants have filed a claim application for compensation of Rs. 12,97,000/-

Respondent No. 1 and 2 remained ex-parte in the Tribunal.

In reply, respondent No.3, denied the averments made in the claim application and pleaded that the incident was not the consequence of any act of respondent No.1. The deceased was not working in the Prism Cement Factory, claim application is preferred in excessive manner, the jeep was driven in violation of terms and conditions of the insurance policy, as such respondent No.3 is not liable to indemnify the claim of the appellants.

The Tribunal framed issue, recorded evidence and on appreciation held the rash and negligent driving of respondent no.1. The Tribunal further held that the jeep was plied in the volation of terms and conditions of the insurance policy and exonerated the insurer, respondent No. 3 and awarded Rs. 1,79,500/- against respondent No. 1 and 2 only. Hence, this appeal is preferred for enhancement of amount of compensation and saddling liability against insurer also.

Learned counsel for the appellant has submitted that the deceased was not travelling in the jeep as fare paid, passenger and contrary to evidence the inference was drawn by the Tribunal. He also submitted that in any circumstances insurer cannot be escaped from his liability to indemnify the claim. He further submitted that the deceased has also left the widow and two minor daughters and dependency as assessed by the Tribunal and awarded amount is not in accordance with law and prayed for saddling the liability against insurer along with adequate enhancement in the awarded amount.

While on other hand Shri Hemant Namdeo, learned counsel for the insurer submitted that insurer has been rightly exonerated from the liability on appreciation of evidence available on record and this appeal does not require any interference for saddling the liability against insurer or for enhancement of awarded sum and prayed for dismissal of appeal.

Having heard the learned counsels for the parties, on perusal of record. Raj Kumar Singh (C.W.2) stated in his deposition that due to aforesaid accident of the jeep the deceased has died, he does not state any thing regarding fare paid passenger in his examination in chief while in cross examination, he deposed that jeep was belonging to a known person of his family, thus, no fare was paid. Although during his cross examination it was said that they have used to pay Rs.5-6 but on the date of incident they have not paid any fare as such jeep is belonging to said known person. The insurer has also examined Assistant Administrative Officer Shailendra Ghore (N.A.W.I), who stated on the strength of report of investigator of his office that the jeep was used as taxi while it was not inured for this purpose, except this witness no other witnesses was examined even the driver of the jeep was not examined to explain. The Statement of said Shailendra Ghore and report of investigator cannot be relied unless it is supported by testimony of investigator in whose report the aforesaid fact was stated. Investigator has not been examined. In view of all the evidence it cannot be said that the deceased was travelling in the jeep as fare paid passenger or the jeep was plied as taxi vehicle on the contrary it has been proved that due to some relation deceased was travelling in that jeep. Even otherwise the insurer cannot escape from his liability to indemnify the claim of the appellants in view of settled position of the law. Thus, the Tribunal has committed error in exonerating the insurer to indemnify the liability. Therefore, we do hereby hold that insurer respondent No. 3 along with owner and driver respondent No.1 and 2 jointly and severally responsible to indemnify the claim of the appellants.

Coming to the question of quantum, on perusing the record it appears from the deposition of Smt. Indra (C.W.I.) the wife of the deceased who has stated that her husband was getting salary Rs. 2,000/- p.m. It is further supported by Ram Bihari, father of the deceased, contrary to this respondent has not examined any witness or produced any documents. Although salary slip has not been filed by the appellants but in the lack of pay slip by other evidence and looking to the nature of job of the deceased we are of the considered view that the deceased was earning Rs. 24,000/- p.a. and assessment of loss of dependency ought to have been worked out on its basis.

Thus, the Tribunal has committed an error in assessing the dependency on the bassis of notional income as provided in the second schedule of Motor Vehicles Act. We hold that the deceased was earning Rs. 2,000/- p.m. which annually come Rs. 24,000/-. On 1/3 deduction for expenses of the deceased which he would have spent on himself had he been alive the loss of dependency comes to Rs. 16,000/- per annum and in the age of 24-25 years as per second schedule of the Motor Vehicles Act multiplier of 17 is applicable. On applying it total loss of dependency comes to Rs. (16,000 x 17) = 2,72,000/- and the same is awarded. In addition to it Rs. 2000/- for funeral expenses, Rs. 2,500/- for loss of estate, Rs. 5,000/- for loss of expectancy of life of deceased and Rs. 5,000/- for loss of consortium to appellant No. 1, the widow are also awarded. Total award of Rs. (2,72,000 + 2,000 + 2,500 + 5,000 + 5,000) = 2,86,500/- (Rs. Two lacs eighty Six Thousand five hundred) is passed. The enhanced amount shall carry interest @ 6% p.a. from the date of filing the claim application. The awarded sum are to be paid by the respondents 1,2 and 3 jointly and severally.

Appeal is allowed in part. There shall be no order as to costs.