Sandesh Kumari and Others vs Rajesh Kumar and Another

Kuldip Singh, J.—Claimants-petitioners are in appeal for enhancement of compensation against award dated 8.1.2003 passed by M.A.C.T., Bilaspur in M.A.C. Petition No. 5 of 2001 awarding Rs. 2,88,000 compensation against respondent Nos. 1 and 2 with a direction to respondent No. 2 to deposit the compensation of Rs. 2,88,000 within 45 days from the date of award failing which interest at the rate of 9 per cent per annum shall be payable from the date of award till realisation. The parties are referred herein in the same manner as in the impugned award.

The brief facts, as alleged in the claim petition, are that Rakesh Kumar on 1.8.2000 boarded truck No. HIB 4164 for buying goods from Mandi. At place Nag-challah truck No. HP 33-4397 was noticed coming from the opposite side. Truck No. HP 33-4397 struck against truck No. HIB 4164 and in the accident Rakesh Kumar suffered injuries and succumbed to injuries. The respondent No. 1 was the owner of truck No. HP 33-4397 at the time of accident and the accident took place due to rash and negligent driving on the part of driver of truck No. HP 33-4397. Deceased Rakesh Kumar was 30 years of age and had been getting Rs. 6,000 per month as driver in private sector. The petitioners are widow, children and mother of the deceased who were dependants of the deceased. The petitioners claimed Rs. 12,00,000 as compensation.

The respondent No. 1 filed reply and admitted ownership of truck No. HP 33-4397, he also admitted the accident and death of Rakesh Kumar in the accident. He, however, alleged that accident had taken place due to rash and negligent driving of truck No. HIB 4164. The age and income of the deceased was denied for want of knowledge. He alleged that the truck No. HP 33-4397 was comprehensively insured with the respondent No. 2 and, therefore, respondent No. 2 is liable to indemnify respondent No. 1.

The respondent No. 2 contested the claim of the petitioners. The insurance of truck No. HP 33-4397 was admitted. It has been alleged that accident took place due to rash and negligent driving of truck No. HIB 4164. The validity of the licence of the driver of truck No. HP 33-4397 was denied. It has been alleged that Rakesh Kumar was a gratuitous passenger in truck No. HIB 4164. The objections of maintainability, non-joinder and mis-joinder of parties have been taken. The liability of respondent No. 2 to indemnify respondent No. 1 was denied.

The Tribunal held that Rakesh Kumar had died in an accident due to rash and negligent driving on the part of the driver of truck No. HP 33-4397. The monthly income of deceased Rakesh Kumar was taken Rs. 2,600 and dependency of petitioners Rs. 2,000 per month. The age of deceased was taken as 30 years and after applying the multiplier of 12, Rs. 2,88,000 compensation has been awarded to the petitioners. Out of the compensation amount Rs. 1,25,000 was awarded to the petitioner No. 1 widow, Rs. 1,25,000 was ordered to be shared equally by petitioner Nos. 2 to 4 and Rs. 38,000 was awarded to petitioner No. 5. The petitioners have filed the appeal for enhancement of compensation.

I have heard the learned Counsel of the parties and have also gone through the record.

6.1 Learned Counsel for the petitioners has submitted that the Tribunal has taken monthly income of the deceased Rakesh Kumar on the lower side and consequently dependency of the petitioners has been taken less and keeping in view the age of the deceased, multiplier of 12 has been applied on the lower side and nothing has been awarded towards loss of consortium, love and affection, funeral expenses, etc., the interest should have been allowed from the date of filing of the petition and not in the manner as awarded by the Tribunal. The respondents have supported the award.

6.2 Respondents have not assailed the award, therefore, findings of learned Tribunal regarding negligence and quantum have become final as against the respondents. PW 1, Sandesh Kumari has deposed that her husband was earning Rs. 6,000 salary per month by driving taxi and he used to pay Rs. 5,000 per month to her and all of them were dependent upon him and the deceased was 30 years of age at the time of accident. She had spent Rs. 30,000 on his cremation and other religious ceremonies. She has placed nothing on record to prove the income of deceased Rakesh Kumar. PW 3, D.R. Guleria has deposed that he had engaged Rakesh Kumar as driver on taxi No. HP 02-3578 in the year 1998. He used to pay Rs. 6,000 per month salary including all the expenses to the deceased. He has stated that he had no record regarding the payment of salary to the deceased. The policy of truck No. HP 33-4397 is Exh. RA. This is the entire evidence regarding age and income of the deceased. Petitioners have failed to bring on record worth believing evidence so as to take income of deceased Rakesh Kumar Rs. 6,000 per month. The statement of PW 3, D.R. Guleria that he engaged deceased Rakesh Kumar as driver on his taxi on Rs. 6,000 per month cannot be believed in absence of corroborative evidence. He has not produced any document on record in order to show that he was paying Rs. 6,000 salary per month to deceased. In these circumstances, the Tribunal has rightly taken the income of deceased at Rs. 2,600 per month and after excluding the expenses which Rakesh Kumar was expected to spend on himself the Tribunal has rightly taken dependency of petitioners Rs. 2,000 per month. The deceased was 30 years of age at the time of accident. The Supreme Court in The New India Assurance Company Limited Vs. Smt. Kalpana and Others, , has applied the multiplier of 13 at the age of 33 years. In the present case, the deceased was 30 years of age, therefore, in my view, multiplier of 15 is applicable instead of 12 applied by the Tribunal. Therefore, amount of compensation comes to Rs. 2,000 x 12 x 15 = Rs. 3,60,000. In addition to this, the petitioners are entitled to Rs. 20,000 on account of loss of consortium and love and affection plus Rs. 10,000 on account of funeral expenses. The total compensation thus comes to Rs. 3,90,000. The truck No. HP 33-4397 was insured with respondent No. 2. The compensation of Rs. 3,90,000 is payable jointly and severally by the respondent Nos. 1 and 2 to petitioners. The compensation is apportioned as follows:

Petitioner No. 1 Rs. 2,00,000 Petitioner Nos. 2 to 4 Rs. 50,000 each Petitioner No. 5 Rs. 40,000

In view of the above, the appeal is allowed and the impugned award is modified. The petitioners are held entitled to Rs. 3,90,000 along with interest at the rate of 9 per cent per annum from the date of institution of the petition till realisation/ deposit of the amount. The compensation amount shall be apportioned as: petitioner No. 1 Rs. 2,00,000; petitioner Nos. 2, 3 and 4 Rs. 50,000 each and the petitioner No. 5 Rs. 40,000. The compensation of Rs. 3,90,000 is payable jointly and severally by respondent Nos. 1 and 2. Since the truck No. HP 33-4397 was insured with respondent No. 2, therefore, respondent No. 2 shall pay/deposit the entire amount of compensation along with interest. On the amount of compensation, the petitioners shall also be entitled to 9 per cent interest per annum from the date of petition till realisation/deposit. No costs.