Fulesri Widow Of Ramjit vs United India Insurance Company on 5 November, 2008

       

  

  

 
 
         IN THE COURT OF CHATTISGARH AT BILASPUR       


                   M.A.No. 2363 of 1999

                       Fulesri  Widow  of  Ramjit
                                              ...Petitioners

                Versus


                1.      United   India  Insurance  Company
                        Limited

                2.      Dev  Pal  Saran  Singho

                3.      Harishchandra

                4.      Birbal
                                       ...Respondents


!     Shri A.K. Shukla, counsel for the appellant.



^     Shri  Ghanshyam  Patel, counsel  for  the  respondent
      No.1/Insurance Company.





       D.B.  HON. SHRI DHIRENDRA MISHRA, &  HON. SHRI DILIP RAOSAHEB DESHMUKH, JJ             

    Dated:05/11/2008

:    Judgement


       05.11.2008




     This    claimant's   appeal   for   enhancement    of
compensation is directed against the award dated 29.9.1999
passed  in  Motor Accident Case No.25/99, whereby  learned 
Additional  Motor  Accident Claims  Tribunal,  Baikuntpur,
Camp  Court  -  Surajpur,  has  awarded  compensation   of
Rs.94,000/-  with interest at the rate of  12%  per  annum
from the date of application to the claimant for the death
of  her  husband namely Ramjit Yadav, who died in a  motor
vehicle  accident on 15.4.1996, involving tractor  bearing
registration  No.  MP  27  B/0429,  which  was  owned   by
respondent No.2 and insured with respondent No.1  for  the
relevant period.

     The   claimant   filed  a  claim  petition   claiming
compensation of Rs.17,00,000/- with the averment that  she
is  the  widow of deceased Ramjit Yadav, who was 50  years
old at the time of accident and was earning Rs.5,000/- per
month  from  his  Provision  Shop  and  agriculture.   The
accident  occurred on 15.4.1996 at about  16.30  hours  in
Village-Inderpur and the deceased died on the spot.
     Respondent No.1/insurance company contested the claim 
petition  on  the ground that the vehicle in question  was
being  driven in breach of policy condition as the tractor
was  used  for other than agriculture purpose, the  driver
was  not  holding valid and effective driving licence  and
therefore,  the insurance company cannot be  saddled  with
the responsibility of satisfying the award.

     Respondents  No.  2  to 4 also  contested  the  claim
petition  and  took  a  stand that the  claimant  was  not
dependent on the deceased as he had no earning of his own. 
The accident occurred as a result of sudden failure of the
brake   of  tractor,  the  tractor  was  insured  by   the
respondent   No.1   and  therefore,   liability   to   pay
compensation   lies  with  the  respondent  No.1/insurance
company.  

     The  applicant examined herself and her witness Bhola
(AW-2) in support of her claim petition whereas respondent
No.  1  examined  its  Branch  Manager  of  Ambikapur  and
Harishchandra.   Respondents  No.  2  &  4  also  examined
respondent No.2 Devpal Sharan Singh-owner of the  tractor,
and Birbal, respondent No.4-driver of the tractor.

     Learned  tribunal, on close scrutiny of the  evidence
available on record, held that deceased Ramjit Yadav  died
as  a  result of accident caused due to rash and negligent
driving  of the offending tractor by respondent No.4;  the
tractor  was  being  driven  by  respondent  No.4;  though
respondent  No.  3  did  not have valid  driving  licence,
however,  it has no effect as the vehicle in question  was
being  driven  by  respondent No.4  and  the  tractor  was
validly  insured by the respondent No.1 for  the  relevant
period.

     Rejecting the claim of the claimant that her  husband
was  earning Rs.5,000/- per month, the tribunal held  that
the  deceased was earning Rs.500/- per month from the shop 
and   his  earning  from  agriculture  could  not   exceed
Rs.20,000/- per annum and thus, quantifying the earning of
the  deceased at Rs.26,000/- per annum, deducting 50% from 
the  above income towards the expenses, which the deceased  
might have been incurring on himself and further deducting
50%  from  the  remaining Rs.13,000/- with an  observation
that  the  claimant must be earning at least 50% from  the
agricultural  land,  assessed the loss  of  dependency  at
Rs.6,500/-  per annum.  Taking age of the deceased  as  50
years  and  selecting the multiplier of  13,  compensation
towards  loss  of dependency was assessed at  Rs.84,500/-.
In addition thereto, compensation of Rs.9,500/- on various
other  heads  has  also been awarded to the  claimant  and
thus,  a total compensation of Rs.94,000/- was awarded  in
favour of the claimant.

     Learned counsel for the appellant submits that  while
assessing dependency of the appellant on the deceased, the 
tribunal has deducted 3/4th of the total annual earning of
the  deceased, which is not permissible under the law  and
the  tribunal  could  not deduct  more  than  50%  towards
personal expenditure of the deceased.

     On  the  other  hand,  Shri  Patel,  learned  counsel
appearing  for respondent No.1/insurance company contended  
that the tribunal has rightly assessed the dependency  and
proper    compensation   has   been   awarded    to    the
appellant/claimant, which does not call for interference.

     We  have  heard learned counsel for the  parties  and
perused the records of the claims tribunal.

     As for finding of the tribunal that the deceased died
as  a  result of accident caused by the offending tractor,
which  was  being driven by respondent No.4 Birbal  rashly
and  negligently, as also earning of the deceased from the
shop   at  the  rate  of  Rs.500/-  per  month  and   from
agriculture at the rate of Rs.20,000/- per annum,  it  has
attained finality as neither the respondent No.1/insurance
company nor any other respondents has preferred any appeal 
against the impugned award.  In fact, this finding is  not
under challenge before us in this appeal.

     For   the   purpose  of  assessing  the  quantum   of
compensation,  the  tribunal has assessed  income  of  the
deceased  from the shop at Rs.6,000/- per annum  and  from
agriculture  Rs.20,000/- per annum. However, while  making
deductions  towards personal expenditure of the  deceased,
the  tribunal has held that the deceased would  have  been
spending   50%  on  himself.   After  making   the   above
deduction,  the  remaining Rs.13,000/-  has  been  further
deducted   on   the  ground  that  loss  of  income   from
agriculture  cannot  be  assessed  to  be   50%   as   the
appellant/claimant   must  be   earning   50%   from   her
agricultural  holding even after death  of  the  deceased.
Thus,  in our considered opinion, the calculation made  by
the tribunal in this regard is erroneous. The deceased was
earning Rs.6,000/- p.a. from his shop, therefore, it could
be  safely  inferred that out of Rs.6,000/-,  he  must  be
spending Rs.3,000/- on himself and hence, there is a  loss
of  dependency  to  the  tune of Rs.3,000/-  p.a.  to  the
appellant/claimant   under  this  head.   Similarly,   the
tribunal has already recorded a finding that on account of
death of Ramjit Yadav, the claimant has suffered 50%  loss
in earning from agricultural land, therefore, the tribunal
ought to have held loss of dependency at Rs.10,000/-  p.a.
in agricultural income of Rs.20,000/-.

     In  this view of the matter, we assess the total loss
of  dependency due to death of Ramjit Yadav at Rs.13,000/-
p.a.  and applying the multiplier of 13, since age of  the
deceased at the time of accident was 50 years as has  been
held  by  the tribunal, the compensation towards  loss  of
dependency comes to Rs.1,69,000/-.  If we add further  sum
of  Rs.9,500/-,  which has been awarded  by  the  tribunal
under  various  other  heads, the total  compensation  for
which  the appellant/claimant is entitled, is assessed  at
Rs.1,78,500/-.  As the appellant/claimant has already been
awarded  Rs.94,000/-  by  the  claims  tribunal,  she   is
entitled for an additional amount of Rs.84,500/-.

     Since  the appeal was pending from the year 1999  and
the respondent No.1/insurance company alone cannot be held  
responsible for delay in deciding this appeal, we quantify
the  interest  on  the enhanced amount of  Rs.84,500/-  at
Rs.8,500/- and accordingly, modify the impugned  award  by
enhancing the compensation of Rs.94,000/- to Rs. 1,87,000/-
.

For the aforesaid reasons, the appeal filed by the
appellant/claimant under Section 173 of the Motor Vehicle
Act is allowed in part. The compensation of Rs.94,000/-
awarded by the tribunal is enhanced to Rs.1,78,500/- with
further quantified amount of interest of Rs.8,500/- on the
enhanced amount of compensation of Rs.84,500/-.

Respondent No.1/insurance company is granted two
months’ time for depositing the additional sum of
Rs.93,000/- (Rupees Ninety Three Thousand) (Rs.84,500/-
towards enhanced amount of compensation + Rs.8,500/-
towards interest on the enhanced amount of compensation)
before the concerned claims tribunal.

No order as to costs.

     J U D G E                                    J U D G E