JUDGMENT
A.M. Sapre, J.
1. The decision rendered in this appeal shall also govern disposal of other connected appeal being M.A. No. 2011 of 2004, because both these appeals arise out of same impugned award and secondly, they arise out of same accident.
2. This is an appeal filed by the claimants who are legal representatives of the deceased under Section 173 of Motor Vehicles Act against an award dated 29.4.2004, passed by learned First Additional Member, Motor Accidents Claims Tribunal, Dewas in Claim Case No. 135 of 2003. By impugned award, Tribunal has awarded a total sum of Rs. 2,95,000 with interest to claimants for the death of one Devi Singh, who died in vehicular accident. According to claimants, the compensation awarded is on a lower side and hence, it needs to be enhanced. It is for claiming enhancement in the compensation awarded by Tribunal, the claimants have come up in appeal. So the question that arises for consideration is, whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence is made out in the compensation awarded and if so, to what extent? So far as other connected appeal being M.A. No. 2011 of 2004 is concerned, it is filed by the insurance company wherein the question involved is whether vehicle in question which was insured with the insurance company was rightly held involved in the accident?
3. It is the case of the claimants that on 17.11.2003, Devi Singh, aged around 30 years was going on his bicycle at Maxi-Dewas Road at around 6 p.m. when one Maruti van white in colour came from behind and dashed Devi Singh. It is averred that impact of the dash was so violent that Devi Singh fell down and died on the spot. It is this incident that gave rise to filing of claim petition by his (Devi Singh) legal representatives out of which this appeal arises under provisions of Motor Vehicles Act, claiming compensation for his death. The case was contested by respondent by filing separate written statement. In substance, according to the respondent Nos. 1 and 2 (non-appellant Nos. 1 and 2), it was deceased who was responsible for causing the accident because he was negligent in riding his bicycle. It was contended that non-applicant No. 2 was driving his vehicle very cautiously and carefully. Claimants alone adduced evidence whereas none of the non-applicants entered in witness-box, nor did they lead any evidence in rebuttal. The Tribunal by impugned award, partly allowed the claim petition and as stated supra, awarded compensation amounting to Rs. 2,95,000 to the claimants by passing an award against all the respondents/non-applicants. It was held that the accident in question occurred on account of sole negligence of non-applicant No. 2, i.e., driver of offending vehicle and hence, he along with insurer and insured, i.e., owner and insurance company are jointly and severally liable to suffer the liability arising out of the accident. It is against this award, both claimants and insurance company have filed these two appeals.
4. Heard Mr. Rajesh Lal, learned Counsel for the appellants and Mr. P.K. Gupta, learned Counsel for the insurance company, respondent No. 3.
5. Having heard learned Counsel for the parties and having perused record of the case, we are inclined to dismiss the appeal filed by insurance company, i.e., M.A. No. 2011 whereas allow the appeal filed by the claimants in part as indicated infra.
6. We have gone through the evidence adduced by the parties. As observed supra, the initial burden to prove the accident and the manner in which it occurred lay on the claimants. They did prove it by examining one eyewitness Deepak Suryavanshi, PW 2. Having perused his statement, we have formed an opinion that Tribunal rightly relied on his statement for holding the non-applicant No. 2 as negligent in driving the offending vehicle. We on our part also record the same finding on appreciation of his evidence. In the first place, PW No. 2 is an independent witness having no relation or any kind of nexus with the family of deceased. Secondly, he being an independent person, why should he come all the way to speak lie and help the deceased. Thirdly, he being an educated person was in a position to note down the number of the vehicle. Fourthly, he is the resident of same area and being in service (compounder) was familiar with the roads. Fifthly, there was nothing unnatural that could be elicited from his evidence so as to totally discard his testimony as being unreliable and lastly, he having categorically deposed that non-applicant No. 2 came from behind with speed in his Maruti van and dashed from behind the deceased who was going on bicycle, we believe this statement and uphold this finding in favour of claimants.
7. Coming to the question of quantum of compensation, in our view, though we uphold the finding insofar as it relates to deceased’s income is concerned, we are, however, of the opinion that the Tribunal should have awarded at least a sum of Rs. 25,000 in place of Rs. 7,500 awarded by Tribunal towards conventional heads. In other words, so far as monthly income of deceased is concerned, looking to his status, i.e., labourer, Tribunal was justified in holding that his income was Rs. 2,000 per month, i.e., Rs. 24,000 yearly.
8. Accordingly and in view of aforesaid discussion, the claimants are held entitled to claim Rs. 2,88,000 + Rs. 25,000 = Rs. 3,13,000 by way of compensation for the death of Devi Singh.
9. The compensation awarded to the claimants is a just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in these types of cases. Indeed in such cases, no fixed and any static formula is provided for determining the compensation and the same is required to be determined on the basis of evidence adduced and the relevant factors mentioned supra. It is on this basis, the courts have to work out award of reasonable compensation.
10. Learned Counsel for the appellants cited some authorities for claiming enhancement. We have gone through these authorities. In our opinion and as observed supra, every case depends upon facts of each case and one can rely upon the cases for awarding compensation.
11. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. Enhanced sum will carry interest at the rate of 6 per cent per annum from date of petition till realisation. All other findings are upheld being not under challenge.
Counsel’s fees Rs. 1,500, if certified.
12. Coming to the appeal filed by the insurance company, i.e., M.A. No. 2011 of 2004, the same is liable to be dismissed once we uphold the finding of negligence in favour of claimants and against the non-applicants. Even otherwise, what we notice is that insurance company had not obtained permission under Section 170 of the Act and hence, they had no right to contest the case, nor had a right to file an appeal on the defences which are available to owner and driver. Moreover, when the case was contested by owner and driver by filing written statement and a specific defence was taken, it was their duty to have proved their case by leading rebuttal evidence. As observed supra, neither the driver, nor the owner entered into the witness-box to rebut the evidence, when the best eyewitness, i.e., driver of offending vehicle was made party, he ought to have entered in witness-box to prove the defence taken by him. Since this was not done, we draw adverse inference against the non-applicants and believe the statement of claimants.
13. Accordingly and in view of foregoing discussion, the appeal filed by the insurance company, i.e., M.A. No. 2011 of 2004 fails and is dismissed. No costs.