Smt. Dullawati and Others vs Sakir Hussain and Others

Navita Singh, J.—This appeal was preferred against the award dated 5.6.2008 passed by Motor Accident Claims Tribunal (Tribunal for short), Faridabad, whereby compensation to the tune of Rs. 4,17,112/- was granted to the appellants. The appellants have now prayed for enhancement of the amount as well as the rate of interest.

The petition for compensation was filed by the appellants on the ground that Ashok, husband of appellant No. 1, father of appellants No. 2 to 5 and son of appellant No. 6 and performa respondent No. 4 (who was petitioner along with other appellants in the claim petition) died in a motor accident, which took place on 3.7.2007. At that time, his age was 30 years and he was working as Clerk with M/s. B.S. Associates, drawing a salary of Rs. 7000/- per month. On the fateful day, he was going to village Pali on his motor cycle and his cousin Dharambir was following him on a separate motor-cycle. At 11.00 a.m., when they reached in the area of village Dhauj, a dumper bearing registration No. HR-38M-4250, which was being driven by respondent No. 1 in a rash and negligent manner, hit the motor-cycle of Ashok, who fell down and the rear wheel of the offending vehicle crossed over his head and the victim died at the spot.

Respondents No. 1 and 2 in their joint reply pleaded that no accident, as alleged was caused by respondent No. 1 and rather the deceased was driving his motor-cycle in a rash and negligent manner. Compensation, if any, should be recovered from the owner or insurer of the motor-cycle. It was pleaded that respondent No. 1 was driving the dumper at a moderate speed. The case registered with the police was stated to be a result of collusion.

The Insurance Company pleaded that the accident may have been caused due to the negligence of an unknown vehicle and the vehicle in question was shown to be involved by the appellants only to extract money from the company. Also the alleged vehicle was being driven in contravention of the terms of the insurance policy in so much as the driver was not holding a valid driving licence at that time.

The following issues were settled by the tribunal: -

Whether the accident in question took place due to rash and negligent driving of dumper No. HR-38M-4250 by respondent No. 1 Sakir Hussain? OPP

If issue No. 1 is proved, to what amount of compensation petitioners are entitled to and from whom? OPP

Whether the petition is not maintainable in the present form? OPR

Whether the petitioners have no locus standi or cause of action to file the present petition? OPR

Whether the driver of the offending vehicle was not holding a valid and effective driving licence at the time of alleged accident and as such respondent No. 3 is not liable to make payment of compensation, if any? OPR 3

Relief.

The learned counsel for the appellants contended that without disputing the findings of the Tribunal, he only prays for enhancement of compensation as the Tribunal erred in holding that the income of the deceased was Rs. 3500/- per month and also in deducting 1/3rd of the same towards his personal expenses. He went on to argue that multiplier of 14 was also inadequate because the age of the deceased was 30 years. Nothing was awarded towards loss of love and affection. It was said that there was no rebuttal to the evidence of the appellants that the deceased was working with M/s. B.S. Associates and was earning Rs. 7000/- per month.

Learned counsel for the Insurance Company i.e. respondent No. 3 argued that the age of the deceased was nowhere proved by the appellants to be 30 years. Also the Tribunal specifically mentioned that considering the age of the deceased, multiplier of 14 would be appropriate, which would mean that the Tribunal had considered the age of the deceased and then decided to apply the multiplier of 14. It may not be out of place to mention here that the record was totally burnt in the fire incident in the High Court and, therefore, reliance could be placed only on the award and the parties also agreed that the award was the only document which could be considered as the parties were also not in possession of any other part of the record of the Tribunal.

No doubt at the opening stage, in the award, it can be seen that it was pleaded by the appellants that the age of the deceased was 30 years but there is nothing to show that they could prove the same. Rather in the given circumstances, it is to be presumed that the age of the deceased was more than that because at the time of filing of the claim petition, the age of eldest child Rahul was given as 11 years. The appellants, therefore, did not give the correct age of the deceased. Thus, the multiplier as applied by the Tribunal does not call for any change.

So far as the income of the deceased is concerned, it is also clearly mentioned by the Tribunal that the proprietor of M/s. B.S. Associates was summoned by the appellants but he had stated that there was no record of any kind. No record of employment or anything relating to the date of birth of the deceased could be produced by the witness. It was thus not at all proved that the deceased was working with the said firm. Nothing was produced by the proprietor even regarding the salary of the deceased. He was, therefore, taken to be a labourer with an income of Rs. 3500/- per month, which was the right conclusion arrived at by the Tribunal. Only regarding personal expenses, lesser amount should have been deducted as the widow and children were dependent on the deceased. There is nothing on record that the father of the deceased was not earning anything. If his son was aged 30 years at the relevant time as pleaded, the father must be very young and must be earning something. In such event, out of Rs. 3500/-, 1/5th is to be deducted towards personal expenses of the deceased, which would be Rs. 700/- per month and, therefore, the remaining income would come to Rs. 2800/- per month. Applying the multiplier as done by the Tribunal, the amount of compensation on account of income of the deceased will come to Rs. 4,70,400/-. For loss of consortium, the amount is enhanced to Rs. 1,00,000/-. The amount i.e. Rs. 15,000/- already awarded for loss of estate and funeral expenses by the Tribunal is sufficient. However, on account of loss of love and affection, further amount of Rs. 50,000/- is awarded. Total amount of compensation is, therefore, enhanced from Rs. 4,17,112/- to Rs. 6,35,400/-. Interest would be payable @ 12 per cent per annum on the enhanced amount.

The appeal is accordingly partly allowed as above.