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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT
JODHPUR
JUDGMENT
Prabhu Singh & Ors. vs. Hira Ram & Ors.
S.B. CIVIL MISC. APPEAL NO. 235/2002
against the judgment and award
dated 05.01.2002 passed by the learned
Judge, Motor Accident Claims
Tribunal, Jodhpur in Motor Accident Claim
No.95/1999.
DATE OF JUDGMENT :: 30th June, 2008
PRESENT
HON'BLE MR.JUSTICE MANAK MOHTA
Mr. G.L. Khatri, for the appellant.
Mr. Devilal Vyas for respondent No.3.
BY THE COURT :The present appeal has been filed by the claimant-
appellants against the judgment and award dated 05.01.2002
passed by learned Judge, Motor Accident Claims Tribunal,
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Jodhpur (in short ‘the Tribunal’) in Motor Accident Claim No.
95/1999 whereby the learned Tribunal has partly allowed the
claim petition in favour of the claimant-appellants and against
the non-claimant No.1, 2 and 4 and they have jointly and
severally been held liable to pay total compensation of
Rs.1,20,000/- with interest @ 9% per annum from the date of
filing of the claim petition i.e. 08.02.1999. The claim petition
against previous owner of the vehicle, that is, Ajit Singh, non-
claimant No.3, has been dismissed by the learned Tribunal.
The brief facts of the case which are relevant for
the disposal of the appeal are that on 07.09.98 Smt. Belu
Kanwar ,(deceased), was going from Jodhpur to village
Peelwa in Jeep bearing No. R.J.19-C- 3903 . The jeep was
being driven by Hira Ram, respondent No.1. Due to rash and
negligent driving of the jeep at about 6.30 PM the jeep went
from the tarred road towards ‘Kutcha’ and turned turtled near
village Kirmasariya Raikon-ki Dhani, as a result of which Smt.
Belu Kanwar received several injuries . While she was being
taken to the hospital, on the way she succumbed to her
injuries. It was averred that the accident took place due to the
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rash and negligent driving of the jeep by Hira Ram, respondent
No.1.
The report of the incident was lodged at Police Station,
Mathania and it is revealed from the record that after
investigation a challan was filed against respondent No.1 . It
was averred that the claimants are the legal heirs of deceased
Smt.Belu Kanwar. Prabhu Singh is husband of deceased
Smt.Belu Kanwar, Maheshwar Singh and Jaswant Singh are
the sons of deceased Smt.Belu Kanwar, they submitted a
claim petition before the Motor Accident Claims Tribunal,
Jodhpur on 08.02.99 under Section 166 of the M.V. Act for
awarding adequate compensation for the untimely death of
Smt. Belu Kanwar in motor accident. Smt. Belu Kanwar, who
lost her life in the accident, was stated to be aged 55 years
and was earning Rs.24,000/- per annum by doing labour in
agriculture and animal breeding and she used to hand over
this income to her husband. In the claim petition it was
submitted that if she had not died in accident, claimants
would not have been deprived from her income and her
services . It was further averred that at the time of accident
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Hira Ram ,non-claimant No.1 was the driver of the jeep and
Raees Mohammed and Ajit Singh, non-claimants No.2 and 3
were the owners of the offending jeep and the said jeep was
insured with the New India Insurance Company, Ltd., Jalore ,
non-claimant No.4. Thus, all the four respondents were stated
to be jointly and severally responsible for making payment of
compensation. A total sum of Rs.3,00,000/- was claimed as
compensation under various heads.
Hira Ram,driver of the jeep, non-claimant No.1, in his
written statement has denied the averments made in the claim
petition and stated that the police has falsely implicated him in
that accident and has wrongly filed challan against him.
Raees Mohammed , non-claimant No.2, did not appear in
spite of service of notice, therefore, exparte proceeding was
initiated against him. Ajit Singh, non-claimant No.3 in reply to
the claim petition, denied most of the averments made in the
claim petition and further stated that he had sold this jeep on
18.08.98 before the day of accident and handed over the
possession thereof to Raees Mohammed ,(non-claimant
No.2) and registration of said jeep has been endorsed by the
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concerned department in his name , the Insurance Company
has also been already intimated about the transfer of the
vehicle. It was averred that he was, therefore, not liable to pay
any compensation and prayed that his name may be struck off
from the claim petition.
The Insurance Company, non-claimant No.4, in his reply
has also denied most of the averments made in the claim
petition for want of knowledge but admitted the factum of jeep
insured with them in the name of non-claimant No.3. It was
further stated that the persons traveling in the jeep had not
been insured nor Insurance Company had received any extra
premium for the coverage of the risk of the gratuitous
passengers. The jeep was registered and insured as a private
vehicle, whereas it was used as a taxi at the time of the
accident. It was also stated that the driver was not
possessing a valid licence. It was submitted that since the
terms and conditions of the Insurance Policy have been
violated by the owner of the vehicle , therefore, the Insurance
Company could not be held liable to pay any compensation.
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The learned Tribunal, on the basis of pleadings of the
parties, framed five relevant issues. The claimants examined
AW/1 Prabhu Singh (the claimant as well as the husband of
deceased) and AW/2 Shaitan Singh (an eye witness of
occurrence) and their statements were recorded and the
claimants produced and got exhibited certain documents in
support of their claim petition. In rebuttal, the respondents
have examined NAW/1 Mohammed Farooq, NAW/2 Ajit Singh,
NAW/3 Padam Paniya and NAW/4 Girish Gupta and also
produced and exhibited certain documents.
The learned Tribunal after hearing both the sides, held
that the accident occurred due to rash and negligent driving of
the driver of the jeep in which Smt.Belu Kanwar lost her life
and vide its judgment and award dated 05.01.02 overruled the
other contentions raised by the respondents’ side. After
considering the age and the income of the deceased the
learned tribunal further awarded a total compensation of
Rs.1,20,000/- /- plus interest thereon @ 9% per annum in
favour of claimants and against the non-claimants No.1,2 and
4, as stated above.
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The claimants being aggrieved and dissatisfied with
the quantum of compensation as awarded by the learned
Tribunal, have preferred this appeal for enhancement of the
compensation amount. Notices of appeal were given to the
respondents. Record of the case was called and the parties
were heard.
During the course of arguments learned counsel for
the claimant-appellants submitted that the learned Tribunal has
not properly considered and appreciated the material available
on record, for awarding adequate and reasonable
compensation and has given an erroneous finding with regard
to the quantum of compensation, therefore, the judgment and
award is required to be modified to this extent.
It was contended by the learned counsel for the
appellants that it was proved by claimant side that Smt.Belu
Kanwar (deceased) was helping in agriculture work and animal
breeding and she was earning out of that job near about
Rs.2,000/- to Rs.2,500/- per month and there was no rebuttal
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from the other side, in that position, the learned tribunal
should have accepted the said income. It was also contended
that at the time of accident she was 55 years old that was also
verified by postmortem report (Ex.4) and the learned tribunal
itself has accepted the age of deceased as 55 years, in that
position multiplier of 11 as shown in the schedule attached to
M.V. Act should have been applied but the learned tribunal
firstly has taken the notional income as Rs.15,000/- per
annum and wrongly deducted 1/3rd of that amount for
personal expenditure. It was urged that in a case of notional
income , 1/3rd of the income for her personal expenses was not
required to be deducted as held in the judgments given in the
case of Kamlesh & Ors. vs. R.S.R.T.C. & Ors. (RLR 2005 (2),
590 and Shree Lal & Ors. vs. Surya Kant & Ors. (RLR 2005
(2), 592). Secondly the multiplier of 8 has wrongly been
applied to determine the loss of dependence or loss of estate
and in this way assessed the compensation under this head
(15000x8x2/3) Rs.80,000/-, that was urged to be modified and
enhanced. The Tribunal further awarded Rs.10,000/- for loss
of consortium, Rs.10,000/- for general and funeral expenses
and Rs.10,000/- to each for the loss of love and affection to
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sons . In this way a meagre amount of total compensation of
Rs.1,20,000/- has been awarded in a case of death of earning
person. It was prayed that reasonable amount of
compensation may be enhanced and appeal may be allowed.
Learned counsel for the respondents refuted the
contentions placed by appellant side and submitted that the
income of Smt.Belu Kanwar was not proved at all, her
husband AW/1 Prabhu Singh himself has not stated a single
word in this respect. Thus the learned tribunal has rightly,
after taking into consideration notional income has determined
the compensation as per provisions of law. The learned
Tribunal has also granted in all Rs.40,000/- compensation on
other grounds. Thus, there is no scope for further
enhancement. Thus it was prayed that the appeal may be
dismissed.
I have considered the rival submissions made by the
learned counsel for the parties and have gone through the
findings and conclusions drawn thereon. The question arises
for consideration in appeal is whether the awarded
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compensation is not just, adequate and reasonable and it
deserves enhancement ?
So far as the finding with regard to accident is concerned
I have seen the findings. The learned tribunal, after a detailed
discussion, rightly has held that it was caused due to the rash
and negligent driving of the jeep by its driver and either of
parties have not disputed it, that is maintained. The learned
tribunal has also decided the other defences taken by the
respondent side and no appeal has been filed, therefore, the
finding on other issues also become final. The learned tribunal
further considering the income of deceased, found that
income of the deceased was not proved, therefore, assessed
her notional income as Rs.15,000/- per annum and proceeded
accordingly. I have seen the main statement in this respect of
her husband. He has simply stated that his wife used to help
him in agriculture work but has not stated any separate
earning, as stated. In that position, statement of AW/2 Shaitan
Singh with regard to earning is not of much importance. Thus,
the tribunal has rightly taken notional income of the deceased
for the purpose of calculation of compensation of Rs.15,000/-
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per annum. The further contention of the learned counsel in
this respect that out of this amount 1/3rd part for her personal
expenditure should not have been deducted. The learned
counsel has also cited above mentioned judgments of this
Court in this respect. Those judgments are based on the
judgment given in the case of Mangu Devi and another vs.
Musafir Paswan and others (2005 (1) TAC 609). That was a
case in which compensation was considered under section
163-A of the M.V.Act but that was not the position in the
present case. Thus, those judgments do not help his
contentions. I have also considered the other contentions.
The learned tribunal in this case has applied the multiplier of 8
for assessing the compensation, that is not found correct ,
where the age of deceased has been accepted to be 55 years
and that was further corroborated by the post mortem report
(Ex.4) in which age of the deceased has been shown as 55
years. Further her husband’s age has been recorded as 58
years at the time of recording of statement given at least after
2 years of the accident. Therefore, her age could not be taken
above 55 years, thus, multiplier of 11 should have been
applied by the tribunal that is just reasonable. To this extent
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the finding of the learned tribunal is not found correct and is
required modification. Thus, taking into consideration the
income assessed by the tribunal as , Rs.10,000/- per annum
after deducting 1/3rd expenses on herself from total income of
Rs.15,000/- per annum and multiplied by 11 compensation
comes to (10,000×11) Rs.1,10,000/-. Further the Tribunal has
awarded under other heads the compensation of Rs.40,000/-,
that is reasonable and is maintained. Thus, total compensation
amount comes to Rs.1,50,000/-, that is enhanced by
Rs.30,000/-, The claimant -appellants are entitled to receive
interest @ 7.5% per annum on enhanced amount of
compensation.
In the result, the appeal is partly allowed and the
awarded amount of compensation of Rs.1,20,000/-is enhanced
by Rs.30,000/- to Rs.1,50,000/-. Further the claimant-
appellants will be entitled to get 7.5% per annum interest on
enhanced amount. The respondent No.1,2 and 4 being driver,
owner and Insurance Company are held jointly and severally
responsible for the payment of compensation. Insurance
Company is further directed to make payment within two
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months from the date of order, failing which appellants will be
entitled to recover the same as per law. Rest of the judgment
is maintained. No order as to costs.
( MANAK MOHTA ),J.
l.george