Smt. Usha Devi and Others vs Shri Om Parkash @ Omi @ Om Pal and Another

Surya Kant, J.—This appeal has been preferred by the claimants against the award dated 31.3.1993 passed by the Motor Accident Claims Tribunal (for short Tribunal), Patiala whereby they have been awarded a compensation of Rs. 2.40 lacs along with interest @ 12% per annum on account of death of Ramesh Kumar, who was aged about 30 years, in a motor vehicular accident which took place on 24.9.1989.

Briefly, the facts are that, on the fateful day, Ramesh Kumar was driving scooter No. HNC 7148 whereas Raj Kumar was sitting on the pillion and were on their way to Ambala from Fatehgarh. When the scooter reached the junction where the link road from village Nagla joins the main Fatehgarh-Ambala Road, a Ford tractor, bearing registration No. PJR-4816, entered the main road from village Nagla. The tractor driver did not blow any horn and without observing any traffic rules, brought the tractor on the main road in a rash and negligent manner and hit the scooter, as a result of which Ramesh Kumar and Raj Kumar, both received injuries. Whereas Ramesh Kumar died at the spot, Raj Kumar was shifted to Ambala. The accident was witnessed by Sunil Kumar and Anant Kumar.

Claiming a compensation of Rs. 6 lacs for the death of their sole bread earner, the widow and four minor children of the deceased as well his widowed mother filed this claim petition, which was contested by the respondent-insurance company.

On the basis of the pleadings, the following issues were framed by the Tribunal:

Whether Ramesh Kumar died in a motor vehicle accident on 24.9.1989 at about 10.30 a.m. near village Nagla on account of rash and negligent driving of Ford tractor No. PJR-4816, by respondent No. 1? OPA

If issue No. 1 is proved, to what amount of compensation, the claimants are entitled and from whom? OPA

Relief.

While deciding issue No. 1, the Tribunal held that Ramesh Kumar died in a motor vehicle accident on 24.9.1989 at about 10.30 a.m. due to rash and negligent driving of the Ford Tractor No. PJR-4816. Under issue No. 2, the Tribunal after holding that the deceased was earning Rs. 18,000/- per year and has been spending 1/3rd of the said earning towards his own personal expenses, assessed the annual dependency of Rs. 12,000/-. Applying the multiplier of 20, the Tribunal awarded a compensation of Rs. 2.40 lacs.

Aggrieved and claiming more compensation, the claimants have preferred this appeal.

I have heard Learned Counsel for the parties and perused the record.

Two-fold submissions have been made by Learned Counsel for the appellants. Firstly, it is argued that there is overwhelming evidence on record to prove that the deceased was earning Rs. 2500/- per month and in the absence of any other evidence to rebut the same, the Tribunal ought to have believed the said evidence. Secondly, it is argued that, as the deceased was required to maintain and look after his widowed mother, wife and four minor children, he could not have afforded to spend 1/3rd of his monthly income towards his own personal expenses. Therefore, a cut of 1/3rd applied by the Tribunal is highly excessive.

Opposing the prayer in this appeal, Shri Khosla, learned Counsel for the Insurance Company, vehemently contends that in fact excessive compensation has been awarded by the Tribunal inasmuch as, having regard to the age of the deceased i.e. 30 years, a multiplier of 16 only ought to have been applied. It is also argued that the monthly income of the deceased has been rightly assessed. Learned Counsel further contends that as per the terms and conditions of the insurance policy, the liability of the insurance company is restricted upto a sum of Rs. 1.50 lacs, therefore, the owner and driver of the delinquent vehicle ought to have been directed to pay compensation over-and-above the said amount.

As regard to the first contention that the Tribunal ought to have applied the multiplier of 16 only, I am of the view that no such argument can be advanced or entertained for the reason that no appeal has been preferred by the insurance company against the award. Similarly, from issues framed and reproduced above, it is apparent that neither the insurance company raised the said plea nor it pressed the same at the time when the issues were framed. Similarly, the second contention that the insurance company had a restricted liability, no such plea having raised or issue got framed or any evidence before the Tribunal, this Court cannot go into the same. Consequently, I do not find any merit in both the contentions raised by learned Counsel for the insurance company.

Adverting to the appellant''s contentions, I am of the view that no fault can be found with the finding of the Tribunal that the income of the deceased might not be more than Rs. 18,000/- per year. True it is that oral evidence has been led by the claimants to suggest that the deceased was earning Rs. 2500/- per month, however, having regard to the fact that he was not an Income Tax payee and in the absence of any cogent documentary evidence on record, the annual income of the deceased as assessed by the Tribunal, appears to be just and fair, warranting no interference by this Court.

However, there appears to be some merit in the second contention that, having responsibility to maintain and look after six dependents, the deceased could not have spared and spent 1/3rd of his monthly income on his personal needs. There is no denial to the fact that the deceased had four minor children, a house-wife and a widowed mother, who were solely dependent on him. It can, thus, be safely inferred that in the backdrop of our Indian society when the children are going, the parents tend to provide best of the education and other facilities to build their future. The deceased would have been saving as much as was possible to discharge the above noticed as well as other social responsibilities. With these kind of responsibilities on his shoulders, it is difficult to believe that the deceased would have spent 1/3rd of his income on his personal expenses. Having regard to all the attending circumstances, I am of the view that the deceased could not have afforded to spend more than 1/4th of the income on himself.

Consequently, after deducting out 1/4th of the annual income of the deceased as assessed by the Tribunal, it is held that he would have contributed Rs. 13,500/- towards the family responsibilities, and applying the multiplier as adopted by the Tribunal, the appellants are accordingly held entitled for a compensation of Rs. 2.70 lacs. The appellants shall also be entitled to claim interest @ 6% on the enhanced amount of compensation from the date of filing of the claim petition till its realization. With these modifications, the appeal is partly allowed.