M.A. No. 224 of 2002
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Against the judgment and award dated 2.8.2002 passed by Motor Vehicle
Accident Claims Tribunal, Dhanbad in Title (MV) Suit No.4/2000.
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Sitara Khatoon & ors. ... Appellants
-Versus-
M/s Neelwati Transport & another Respondents
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For the Appellants : Mr. Shekhar Prasad Sinha
For the Respondents : M/s. Alok Lal & K.P.Choudhary
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PRESENT :
THE HON'BLE MR. JUSTICE M.Y.EQBAL
THE HON'BLE MRS. JUSTICE JAYA ROY
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Date of CAV:16.11.2009 Date of pronouncement:18.11.2009
M.Y.Eqbal,J: This appeal by the claimants-appellants is directed against
the judgment and award dated 2.8.2002 passed by Motor Accident
Claims Tribunal, Dhanbad in Title (MV) Suit No.4/2000, whereby he
has awarded a sum of Rs.1,70,000/- as compensation and directed
the owner of the vehicle to pay the said amount of compensation.
2. The facts of the case lie in a narrow compass.
The claimants case is that the tracker in which the deceased
was employed as a driver was parked by the side of the road.
Meanwhile a truck bearing registration No.BR 16G 5857 coming in a
very high speed dashed the tracker, as a result of which the driver
of the tracker namely Md. Azad succumbed to the injury. The truck
was owned by the respondent no.1 whereas respondent no.2 was
the insurer of the truck. The tribunal, after hearing the parties and
considering the evidence, came to the conclusion that the deceased
Md. Azad was the Khalasi in the tracker and the driver of the truck
was not holding a valid driving licence to drive the heavy motor
vehicle. Consequently, the Tribunal fastened the liability upon the
owner of the vehicle.
3. In the instant appeal a cross objection was filed by the
respondent-owner of the vehicle, which was registered as Cross
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Objection No.4/2007. A Bench of this Court, after hearing the cross
objection, rejected the same by order dated 20th April, 2007. The
said order dated 20th April, 2007 reads as under:-
" This cross-objection purported to be under
Order 41 Rule 22 of the Code of Civil Procedure, has
been filed by the respondent-owner in the instant
M.A.No.224 of 2002.
Miscellaneous Appeal No.224 of 2002 has been
filed by the claimant for enhancement of
compensation.
It appears from the judgment passed by the
Tribunal that the deceased was a 'Khalasi' in a
Trecker. While the Trecker was going from one place
to another place, it was dashed by a truck. The claim
case was filed against the owner and insurer of the
truck, who are respondents. The Tribunal held that it
was because of the gross negligence of the driver of
the truck accident took place. The Tribunal further
held that at the relevant time when the accident took
place the driver of the truck was holding a licence to
drive light motor vehicles. On these findings the
Tribunal awarded compensation and fixed
responsibility upon the owner of the truck, due to the
reason that it was violation of the provisions of the
Motor Vehicles Act as also the Insurance Policy and
therefore the Insurance Company has no liability.
Though the judgment and award was passed
on 16.8.02, the respondent-owner did not prefer any
appeal. Against the impugned award the liability was
fixed upon him, the claimants only preferred the
Miscellaneous appeal No.224 of 2002 on 4.10.2002.
Notice of this appeal was issued and it was served
upon the respondent-owner on 13.7.04, but no cross-
objection was filed within 30 days as provided under
Order 41 Rule 22 of the Code of Civil Procedure. This
cross-objection was filed only on 22.3.2007 i.e. about
three years from the date of service of notice of
appeal upon him. An application under Section 14 of
the Limitation Act has been filed for condonation of
delay in filing the cross-objection.
We have perused the limitation petition. In
para 3 of the cross-objection this
appellant/respondent admitted that he came to know
about the award on 13.7.04 on the receipt of the
notice sent in M.A.No.224 of 2002 . Therefore,
admittedly notice of appeal was served on him and
he came to know about the pendency of appeal on
13.7.2004
. However, it is stated in the condonation
application that when the case was listed for herding
and was likely to be taken up the counsel contacted
the cross-objector/owner to file affidavit in the
Miscellaneous appeal filed bjy the claimant and after
filing affidavit it was found necessary to file the
present cross-objection.
From the impugned order, it appears that the
respondent-owner of the vehicle appeared before the
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Tribunal and file written statement and contested the
case. In spite of the fact that the judgment and
award was passed against him, he did not choose to
prefer any appeal. Not only that, after receipt of the
appeal notice he did not file any cross -objection for
about three years. It was only when the appeal was
listed for hearing, this cross-objection has been filed.
In the aforesaid facts and circumstances of the
case, we do not find any reason whatsoever to
condone the delay in filing the cross-objection. The
cross-objection is obviously barred by limitation.
Hence the limitation petition (I.A.No.871 of 2007) is
rejected. Consequently cross-objection being
C.O.no.4 of 2007 is dismissed as barred by
limitation.”
4. After dismissal of the cross objection the respondent- owner
of the vehicle filed a regular appeal being M.A.No.110/2007, which
was also dismissed on 12.6.2007.
5. The learned counsel appearing for the appellants made two
fold submissions. Learned counsel firstly submitted that the
deceased was the driver and not Khalasi in the tracker. Hence the
compensation awarded is unreasonable and in a very lower side.
Learned counsel secondly submitted that the liability for payment
of compensation ought to have been fastened upon the insurer of
the truck with whom the truck was validly insured.
6. So far as the question of liability in between the owner and
the insurer of the truck is concerned, as noticed above, the cross
objection as also the appeal filed by the owner of the vehicle has
been dismissed. Learned counsel appearing for the owner of the
vehicle has very fairly submitted that even the appeal filed before
the Supreme Court has been dismissed. However, learned counsel
for the owner of the vehicle submitted that the amount of
compensation awarded by the Tribunal is just and reasonable.
7. In view of the dismissal of cross objection and appeal by this
Court and also by the Supreme Court, it would not be proper to go
into the question with regard to liability of the owner vis-a-vis the
Insurance Company. The only question, therefore, that falls for
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consideration is as to whether the amount of compensation
awarded by the Tribunal is just and reasonable.
8. Admittedly, the deceased was 25 years of age and died in a
motor accident leaving behind one minor son, two minor daughters
and parents. According to the claimants the deceased was
employed as a driver and his monthly income was Rs.3000/-
excluding daily meal allowance. The tribunal awarded only a sum of
Rs.1,70,000/-.
9. Even assuming that the deceased was a khalasi, evidence
was led by the claimants that his monthly earnings was Rs.3000/-
in addition to daily meal allowance, the Tribunal ought not to have
taken notional income for the purpose of assessing the
compensation. It is not a case where the deceased was non-
earnings member rather he was employed either as a driver or a
khalasi. In any event the monthly income of the deceased is taken
as Rs.2500/-. The annual dependency comes to Rs.20,000/- and if
we take the multiplier of 15 the minimum compensation comes to
Rs.3.00 lacs. In our considered opinion, after considering the facts
and evidence, the compensation of Rs.3.00 lacs shall be just and
reasonable compensation.
10. We, therefore, allow this appeal and enhance the
compensation amount to Rs.3.00 lacs and direct the respondent-
owner of the vehicle to pay the said compensation amount to the
claimants.
(M.Y. Eqbal, J. )
Jaya Roy,J.: (Jaya Roy,J.)
Jharkhand High Court, Ranchi,
The 18th November, 2009,
Pandey/A.F.R.