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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
CIVIL MISC. APPEAL No. 493 of 1997
GANESHLAL & ORS
V/S
GANPATSINGH & ORS
Date of Judgment : 16.12.2008
PRESENT
HON'BLE SHRI N P GUPTA,J.
Mrs.PRAMILA ACHARYA for Mr. SANDEEP MEHTA, for the
appellant / petitioner
Mr. SANJEEV JOHARI & Mr. SK KALLA, for the respondents
BY THE COURT:
This appeal has been filed by the claimants,
against the award of the Motor Accident Claims Tribunal
No.2, Udaipur dt. 2.4.1997, seeking enhancement of
compensation.
Learned Tribunal has made total award of Rs.
2,01,500/-. Since the factum of death, accident, negligence
etc. are not in controversy, I need not go into that aspect
of the matter, and would straightway confine to the aspect
of the quantum only.
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According to the claimant, as pleaded in para-3 of
the claim petition, the deceased was a driver, earning Rs.
3000/- per month, and according to para-13-Ka he was
getting a salary of Rs. 2000/- per month, and Rs. 1000/- as
allowance and over time. Then, according to para-13-Kha he
was paying Rs. 2000/- per month to the family. The Insurer
in reply took the stand of total denial.
The claimant has examined A.W.1 Ganesh Lal, who
is father of the deceased, and is one of the claimants. On
the aspect of the quantum he has deposed, that the deceased
was his son, and was getting monthly salary of Rs. 2000/-,
and was also getting Rs. 1000/- as allowances, and he was
paying Rs. 2000/- to his wife for maintenance of his
family, and Rs. 500/- to him for medicines etc. In cross
examination, all that has been asked is, that the driver
was getting a salary of Rs. 1200/-. There is no other cross
examination, and no other evidence has been led in rebuttal
by any of the defendants.
The learned Tribunal in para-20 has noticed the
contention of the claimant, about the deceased earning Rs.
3000/- per month, and for determination of compensation by
employing a multiplier of 20, while the contention of the
defendant was noticed in para-21, to the effect, that
allowance was available to the deceased only on going on
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duty. Thus income to be taken to Rs. 2000/- per month, and
multiplier of 10 should be employed. With this, in para-22
it has been found, that so far the question of income is
concerned, the evidence of the claimant has not been
rebutted, and it was straightway assumed, that the deceased
was earning Rs. 2000/- per month. Significantly nothing has
been said about the allowance, as to whether any allowance
was being received by the deceased, or not, and if it were
received, how it was accounted for, while making deduction
for personal expenditure of the deceased. Then, relying
upon the judgment of the Hon’ble Supreme court in U.P.
State Road Transport Corporation Vs. Trilok Chand, reported
in 1996 DNJ (SC)-247, the multiplier of 12 has been
employed, and compensation has been calculated.
In my view, may be, that the multiplier is
excessive, in view of the latest trend of the judgments of
the Hon’ble Supreme Court. However, in absence of any cross
objection on the aspect of quantum, interference need not
be made in the multiplier employed. So far the income is
concerned, there is no reason not to believe that the
deceased was getting allowance of Rs. 1000/- per month, and
obviously that was being spent up. As such the dependency
was required to be assessed at Rs. 2000/-.
Accordingly, the appeal is partly allowed, and
maintaining other calculations, the compensation is
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assessed, treating the dependency of the family at Rs.
2000/-, instead of Rs. 1334/- per month, and thus the
figure of Rs. 1,92,096/- is substituted by the figure of
Rs. 2,88,000/-. The enhanced amount of compensation will,
however, carry interest @ 8% from the date of claim
petition, till payment. The other items awarded in
calculations made are maintained.
Then, I come to the cross objections, which have
been filed by the defendant M/s. Mahalaxmi Oil Industries.
The thrust of the cross objections is, that the summons
were not properly served, and without proper service,
finding of negligence has been given. Then, the other
objection raised is, that no issue is framed in respect of
liability of cross objector.
In my view, on 25.8.1993 Vakalatnama had been
filed on behalf of the cross objector, by Shri Lalchand
Swarankar, Advocate. Vakalatnama is available on record at
page B7/3, which is signed by Sita Ram and Ganpat Singh.
From the cause title it is clear, that Ganpat Singh is
defendant no.2, and M/s. Mahalaxmi Oil Industries is
described as proprietary concern, whose proprietor is
described to be Sita Ram s/o Ramanand. It is not the
averment in the cross objection, that Vakalatnama was not
given. The order-sheet of the learned trial court dt.
25.8.1993 records the factum of filation of Vakalatnama, as
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noticed above. Then, it also appears from the order-sheets,
that adjournment after adjournments were taken by the
counsel for filing written statement, and ultimately on
17.8.1994, the learned counsel did not appear, and the
right of the defendants no. 1 and 2, to file written
statement was closed. In such circumstances, the grounds
taken in the cross objections cannot be sustained.
Thus, I do not find any force in the cross
objection.
Accordingly, the appeal is partly allowed as
above, and the cross objections are dismissed. The parties
shall bear their own costs of this appeal.
( N P GUPTA ),J.
/Sushil/