Pale Sardar vs Champabai and Others

G.D. Saxena, J.—This appeal u/s 173 of the Motor Vehicle Act 1988 has been preferred by the owner/appellant against an Award dated 23rd February 2004 in Claim Case No. 6/2002 passed by the Third Additional Member of the Motor Accidents Claims Tribunal Guna (M.P.) granting compensation to the claimants of the deceased in the sum of Rs. 1,20,000/- alongwith costs as well as 9% interest from the date of filing of claim petition till full and final payment is made. The facts, in short, for decision of the appeal are that on 23rd June 1996 at about 12 in the noon, at Khejara Road Kent Guna, Patrulal was travelling as a labour of the owner-appellant in a trolley bearing registration No. CPW/8436 attached with a tractor No. MPH 9854 driven by Shankarlal. It is alleged that the driver of the tractor had driven the vehicle in a rash and negligent manner, as a result, deceased Patrulal fell from the tractor on the ground and received serious injuries. After first aid in the District Hospital, he was shifted to J.A. Hospital Gwalior, where during treatment he succumbed to injuries on 11th July 1996. The information of the incident was sent on 11th July 1996 and Marg report was written on the same day but after inquiry into Marg, the FIR was lodged and Crime was registered on 18th August 1996 against the said tractor driver Shankarlal. After investigation, the charge-sheet was filed before the criminal court. The claimants by presenting petition u/s 166 of the Act prayed for grant of Rs. 8,50,000/- as compensation against the owner and driver of the vehicle involved in the accident. It is stated that at the time of accident, the deceased was causal agricultural labour and was earning Rs. 100/- per day. After trial and on considering the evidence adduced by the parties, the learned tribunal passed the award of Rs. 1,20,000/- alongwith interest and costs of the case against the driver and owner of the vehicle, as mentioned above, hence, this appeal.

Learned counsel for the appellant submitted that the award under appeal is against the facts as came out from the evidence as adduced by the parties before the tribunal and recognized principles of law, hence, same is liable to be set aside. It is contended that the appellant in this case has successfully proved by the evidence that no such accident was met with his tractor which was driven by his driver. It is submitted by him that prior to reaching of his tractor and trolley, the injured was lying on the road who informed that he fell down from the jeep in which he was travelling and got injuries and thereafter on the request of the injured, he was shifted to hospital for treatment. Appellant thus urged that implication of his vehicle was wrong and illegally. It is also admitted that claimant/respondent No. 1 Smt. Champabai, widow of deceased Patrulal remarried with another person and so after remarriage she is not entitled to any relief. Other claimants being majors and earning members are also not entitled to any relief. It is further pointed by the counsel that at the time of accident, the deceased was aged 65 years and therefore multiplier, looking to the age ought to have been applied for determining the quantum of dependency of claimants. On the basis of aforesaid, it is prayed that by allowing the appeal, the award passed against the appellant may be set aside.

On the other hand, learned counsel appearing on behalf of the respondents/claimants supported the impugned Award and prayed for dismissal of the appeal. It is submitted that the appellant may be directed for earliest payment of the award amount with interest and costs to claimants as directed by the learned MACT.

Heard the learned counsel for the parties. Also perused the record of the case and the law.

The questions involved for consideration in this appeal are:-

(i) Whether the claimants of the deceased successfully proved that death of Patrulal was direct result of rash and negligent driving on the part of Shankarlal, driver of the tractor bearing No. MPH 9854, which was owned by the appellant?

(ii) Whether the injured Patrulal died due to falling from the overloaded jeep in which he was earlier travelling and after such incident, the tractor was implicated for no rhyme or reason?

On perusal of the record, it appears that after inquiry into Marg No. 7/1996 written on telephonic information furnished by the treating doctor posted in the J.A. Hospital Gwalior in relation with death of Patrulal, who was admitted for treatment of the injuries caused in road-accident and the statements of Nathoo, Babulal and Raghuveer, the F.I.R. was lodged against driver Shankarlal for causing death of Patrulal by rash and negligent driving of tractor and subsequently crime for offence u/s 304-A IPC was registered against him. On perusal of the injury report and postmortem report, it is gathered that Patrulal was injured in road accident and during treatment he died in J.A. Hospital Gwalior.

Smt. Champabai (AW-1), the claimant and widow of Patrulal and Banwari (AW-7), son of deceased were not eye-witnesses to the incident. It was only chance witness, namely, Israr Ali @ kallu (AW-6), who deposed that on a fateful day of incident, he saw that the tractor and trolley owned by Pale Sardar was being driven at the time of accident by Shankarlal in a high speed. After some distance, at Khejda road, the trolley turned turtled and the labourers sitting in the trolley were thrown away. With the help of others, he set right the turtled trolley. One labour Patrulal was removed from the turtled trolley in an injured condition. On perusal of the report attached in bed-head history of the injured Patrulal sent by the treating doctor on the day of incident, it clearly indicates that the injured Patrulal fell down from trolley and was admitted in Male Surgery Ward of the District Hospital Guna. This report lodged in a Daily diary register dated 23rd February 1996 was handed over for inquiry to Head constable Kayyum Shah.

Jaspal Singh @ Pale (NAW-1) is not an eye witness to the incident. Shankarlal (NAW-4), driver of the offending tractor and Babu (NAW-3), labour of the owner-appellant who was travelling in the same trolley involved in accident as well as Raju (NAW-4) bystander all deposed that deceased Patrulal was lying on the spot and requested the driver of the tractor passing through the site to shift him to his residence because he, while travelling from overloaded jeep, fell down and got injuries. Thereafter, on request of his wife, the injured was shifted to hospital.

Thus, on perusal of the evidence as discussed above, three versions appear; firstly, the deceased was travelling on trolley attached with a tractor owned by appellant as his casual agricultural labourer on a fateful day and on the spot of the accident he fell down from trolley and was injured and subsequently died during treatment. Second version is that on the spot of accident, the tractor was driven rashly and negligently and the trolley in which the deceased was travelling as labourer of the owner of tractor was pressed under material and got severe injuries. Third version as came out from the pleadings and evidence of the owner and driver is that on the spot of accident, Patrulal was found lying who stopped the driver of the tractor and informed that during travelling in overloaded jeep he fell down and received injuries and on the request of Patrulal, the driver shifted him from spot to his house and on further request of his wife, he was shifted to hospital and admitted in the Male Surgical Ward. However, on close scrutiny of the statement of Smt. Champabai (AW-1), it seems that she clearly stated that during treatment of her husband, the appellant was present in the District Hospital Guna and he also borne the expenses of the treatment of her husband. She frankly stated that she did not lodge the FIR because of consistent pressure made over her by the employer/owner of the offending vehicle.

Though the appellant denied and disputed occurrence of the accident on the ground that the deceased met his driver in an injured condition and they took him to the hospital in the tractor-trolley, the evidence of death of deceased by accident caused by his tractor cannot be ignored.

The next question left for consideration is that as to what compensation should be awarded to the claimants.

Having gone through the depositions of the witnesses, it appears that the deceased died at the age of 65 years. He was working as casual labourer and used to earn Rs. 100/- per day. However, there is no convincing material available on record to determine the income of the deceased. Hence, looking to the age of the deceased, it cannot be safely said that his daily earning was Rs. 100/-, that too, by doing the work of casual labourer. Therefore, taking into consideration the facts, the notional income of the deceased can be determined at Rs. 1500/- p.m., annually Rs. 9,000/-. Since the deceased was married, therefore, dependency and economic loss in that matter looking to the ratio of dependents would be ascertained on the basis of 1/3rd of the income of deceased and after applying multiplier of 5, the compensation is determined at Rs. 60,000/-. In addition to it, compensation of Rs. 15,000/- for love and affection of other heirs, i.e., sons of the deceased, Rs. 5,000/- for transportation charges of the dead-body and funeral expenses with Rs. 10,000/- for loss of estate is awarded. Thus, in this manner, total compensation comes to Rs. 95,000/- (Rs. Ninety Five Thousand only) for the death of the deceased, which resulted in the accident. It appears that the appellant has already deposited Rs. 25,000/- in compliance of the directions of this court, therefore rest amount of Rs. 70,000/- shall be paid alongwith interest @ 7% from the date of filing of the appeal and cost of this appeal within a period of three months from today. With this modification and reduction in the Award, the appeal stands disposed of.