Vishakha Bai v. Sushil Kumar — 1990 DIGILAW 458 (MP)

JUDGMENT A.G. Qureshi, J. 1. This judgment shall govern the disposal of appeal Nos. 279 of 1984 and 280 of 1984 (Radhey Shyam Sunar v. Sushil Kumar) filed reportedly against the award dated 22nd June, 1984 in Claim Case Nos. 40 of 1982 and 39 of 1982 passed by the Member, Motor Accidents Claims Tribunal, Ujjain, wherein the learned Tribunal awarded damages to both the claimants in respect of an accident which took place on 5.10.1981 at Freeganj, Ujjain. Both the appellants are dissatisfied with the amount of award and, therefore, have preferred these appeals. 2. The M.P. State Road Transport Corporation, respondent in both appeals, has filed cross-objections challenging the award on the ground that the Tribunal has wrongly held that the accident occurred due to the negligence on the part of the driver of its vehicle CPH 8561. 3. Facts leading to these appeals and cross-objections in short are that an accident took place on 5.10.1981 at about 12 o'clock in the day in Freeganj, Ujjain. It is a common ground that Sushil Kumar Chourasia is the owner of tempo No. MPM 4042 and at the time of the accident the tempo was being driven by Mohammed Unus and was insured with the National Insurance Co. Ltd. It is also not in dispute that bus CPH 8561 at the time of the accident was in the ownership of M.P. State Road Transport Corporation (hereinafter MPSRTC) and was being driven at the relevant time by Saharuddin. It has also not been controverted that Nagina Bai, wd/o Narayanji, had died due to the injuries which she received in the course of the accident. The appellant in appeal No. 280 of 1984, Radhey Shyam, had filed a Claim Petition No. 39 of 1982 before the lower court alleging that on 5.10.1981 at about 12 o'clock in the day when deceased Nagina Bai with her friend Vishakha Bai was going from Freeganj in the city of Ujjain, near Bharat Talkies, Mohammed Yunus was driving tempo No. MPM 4042 rashly and negligently and at the same time from Makshi Road side driver Saharuddin reached there driving the bus No. CPH 8561 rashly and negligently. While so driving Saharuddin dashed the bus against the tempo and the tempo hit both Nagina Bai and Vishakha Bai due to which they received injuries. While so driving Saharuddin dashed the bus against the tempo and the tempo hit both Nagina Bai and Vishakha Bai due to which they received injuries. Nagina Bai succumbed to her injuries on the way to the hospital and Vishakha Bai received serious injuries. Nagina Bai was 50 years of age. She used to do the job of gold smithery and was earning about Rs. 15/- a day. Therefore a claim of Rs. 75,051/- as compensation was made by Radhey Shyam on account of the death of deceased Nagina Bai. The learned Tribunal awarded only Rs. 4,240/- as compensation with interest at the rate of 6 per cent per annum from the date of the award and the costs of the case. Aggrieved by the insufficiency of the award Radhey Shyam has filed appeal No. 280 of 1984. 4. Appellant Vishakha Bai had also filed Claim Petition No. 40 of 1982 narrating the incident in the same terms as stated by appellant Radhey Shyam in his claim petition. However, she claimed Rs. 40,051/-as compensation alleging that she is 56 years of age and was earning Rs. 15/- to Rs. 20/-per day, but because of the accident she has become permanently disabled and as such is deprived of the earnings. 5. The claim petition was resisted by the owner of the tempo on the ground that there was no fault of the tempo driver because the bus (CPH 8561) dashed against the tempo from behind due to which the tempo turned turtle and caused injuries to the claimants. As such there was no negligent or rash act on the part of the tempo driver while driving the tempo. It was actually the fault on the part of the driver of the bus. 6. The MPSRTC resisted the claim on the ground that actually the accident was caused by the tempo when the tempo tried to overtake the bus in speed and due to this it dashed against the claimants. The MPSRTC cannot, therefore, be held liable for damages. 7. The learned Tribunal after appreciating the evidence on record passed the award as above. Aggrieved by the insufficiency of the award both the claimants have filed these appeals and the MPSRTC has filed the cross-objections being dissatisfied with the finding of holding the MPSRTC responsible for payment of damages. 8. The learned counsel for the appellants in both the appeals, Mr. Aggrieved by the insufficiency of the award both the claimants have filed these appeals and the MPSRTC has filed the cross-objections being dissatisfied with the finding of holding the MPSRTC responsible for payment of damages. 8. The learned counsel for the appellants in both the appeals, Mr. H.S. Rajpal, has argued that although the finding of the Tribunal holding the MPSRTC responsible for damages is correct, however, the amount of compensation awarded to the claimants is highly inadequate. According to Mr. Rajpal in the case of death of Nagina Bai at least Rs. 25,000/- should have been awarded because this is the amount which could have been awarded even in the case of no fault liability under Section 140 of the Motor Vehicles Act, 1988. As regards Vishakha Bai according to Mr. Rajpal the injuries being serious the award of damages on account of physical and mental suffering is too low. It should atleast be Rs. 10,000 to Rs. 15,000/-. The rate of interest and the date of the interest have also been challenged. 9. On the other hand, the learned counsel for the respondent MPSRTC, Mr. A.K. Dhupar, argues that the evidence on record clearly shows that the bus did not dash against the claimants at all and it was the driver of the tempo who was responsible for the accident because he was driving the tempo at the time of the accident rashly and negligently. Therefore, the award passed against the MPSRTC should be quashed. 10. As regards the liability of the MPSRTC, in my opinion, the learned Tribunal has rightly held that it was due to the negligence of the driver of the MPSRTC that the accident occurred and Nagina Bai and Vishakha Bai received the injuries. AW 2 Vishakha Bai is the person who is the claimant in claim case No. 40 of 1982. She is the person who was injured. In her statement she stated that the tempo was going from near Grand Hotel and she and Nagina Bai were going towards the bridge. When they were near the bridge towards Freeganj side the bus of the Roadways came from Makshi Road and going towards the bridge it dashed against the tempo. With the impact of the dash the tempo turned on this witness and Nagina Bai. The tempo was going at a normal speed. When they were near the bridge towards Freeganj side the bus of the Roadways came from Makshi Road and going towards the bridge it dashed against the tempo. With the impact of the dash the tempo turned on this witness and Nagina Bai. The tempo was going at a normal speed. In cross-examination she states that she heard the sound of the impact, then she saw the vehicles. She also states that the tempo had collided with the bus, had fallen on them and they had received the injuries because the tempo fell upon them. 11. AW 3, Gopal Neema, also made a similar statement. The driver of the bus, Saharuddin, has been examined by the MPSRTC and he states that the bus did not dash against the tempo. He denies the fact that he had seen the tempo turning turtle. Only a motor cycle rider had told him that the tempo had turned turtle, but he did not stop the bus. In my opinion, the statement of Saharuddin is not sufficient to rebut the statement of the injured Vishakha Bai and Gopal Neema, AW 3, in respect of the cause of the accident. As such, in my opinion, the learned lower court has rightly appreciated the evidence on record and there is no hesitation in concurring with the finding of the learned Tribunal on this point. 12. As regards the compensation awarded for the death of Nagina Bai, I agree with the learned counsel for the appellant that the award given by the Claims Tribunal is inadequate. The court came to the conclusion that Nagina Bai was of 60 years of age at the time of her death in view of the medical evidence and she would have atleast lived for five more years and the loss to the appellant because of her death was for Rs. 60/- per month and as such he is deprived of the income of Nagina Bai at the rate of Rs. 720/- per year for a period of 5 years, i.e., Rs. 3,600/- and after deducting 10 per cent towards lump sum payment, the actual compensation which could be awarded on that count to the appellant is Rs. 3,240/-. For the mental agony of the claimant an amount of Rs. 1,000/- is awarded. As such an award of Rs. 4,240/- is given to the appellant. 3,600/- and after deducting 10 per cent towards lump sum payment, the actual compensation which could be awarded on that count to the appellant is Rs. 3,240/-. For the mental agony of the claimant an amount of Rs. 1,000/- is awarded. As such an award of Rs. 4,240/- is given to the appellant. After perusing the evidence I see no reason to disbelieve the testimony of the applicant when he says that the deceased was earning about Rs. 8/- per day. Vishakha Bai also states that Nagina Bai and herself were earning Rs. 12 to Rs. 15/- per day. It is true that there is no account of the income of the deceased. However, from the statement of Radhey Shyam, which is not challenged in the cross-examination, in respect of income supported by the evidence of AW 3 Gopal Neema and Vishakha Bai, there can be no hesitation in holding that the income of the deceased was Rs. 8/- per day, out of which if the deceased spent even half of the amount on herself, then the appellant would definitely be benefited to the extent of Rs. 4/- per day from the income of the deceased and as such the loss of income to the appellant because of the death of the deceased can be calculated at Rs. 120/- per month which would be Rs. 1,440/- per year. 13. As regards the age of the deceased, according to the applicant the age was about 48 to 50 years, but according to the postmortem requisition sent by the police the age of Nagina Bai has been written as 55 years. But the doctor while examining the dead body has written the age as 60 years. As such there is no definite evidence on the record from which it could be ascertained as to what was the actual age of the deceased. However, in view of the aforesaid evidence which shows the age of Nagina Bai as 50 years, 55 years and 60 years, I am of the opinion that the age of Nagina Bai has to be determined at 58 years. Now at the rate of Rs. 1,440/- per year if Nagina Bai would have survived till the age of 65 years then the appellant would have got an income of Rs. 10,080/- and he is deprived of this earning from Nagina Bai to this extent. Now at the rate of Rs. 1,440/- per year if Nagina Bai would have survived till the age of 65 years then the appellant would have got an income of Rs. 10,080/- and he is deprived of this earning from Nagina Bai to this extent. In my opinion the deduction on the ground of lump sum payment should not have been made in view of the fast decline in the purchasing power of money. However, in addition to the compensation for monetary loss separate compensation to the appellant on ground of mental agony should not have been awarded. As such, in my opinion, the appellant is entitled to get Rs. 10,080/- as compensation. 14. Mr. Rajpal has drawn my attention to a judgment of this court in the case of Ramsingh v. Sheikh Sikandar, 1990 ACJ 801 (MP), wherein after the amendment in the Motor Vehicles Act awarding compensation on the principle of no fault liability, the court has come to the view that the minimum compensation for the loss of human life should be the amount provided in the statue book. I am in respectful agreement with the view expressed by a learned single Judge of this court in the aforesaid judgment. When the law provides that in case of no fault liability a claimant should get the minimum amount of compensation prescribed in the law, then it does not appeal to reason that a person who has proved the negligence on the part of the driver resulting in the accident should get less than what is provided as the minimum compensation in case of no fault liability. As discussed above the appellant is entitled to get Rs. 10,080/- as compensation in view of the evidence on record, but in view of the fact that even in case of a no fault liability the appellant would have been entitled to get Rs. 15,000/- as compensation, the compensation amount to be awarded to the appellant has to be atleast Rs. 15,000/-which is the minimum under Section 92-A of the Motor Vehicles Act which was in force at the time of the award. Therefore, that is the minimum compensation which the appellant is entitled to get. 15. Mr. Rajpal has further argued that in view of the amended provision of the Motor Vehicles Act the no fault liability has been raised to Rs. 25,000/-. Therefore, that is the minimum compensation which the appellant is entitled to get. 15. Mr. Rajpal has further argued that in view of the amended provision of the Motor Vehicles Act the no fault liability has been raised to Rs. 25,000/-. But, in my opinion, this appeal has to be decided with reference to the law which prevailed at the time of the passing of the award and at the time of the passing of the award the learned Tribunal could have taken guidance from the provision contained in Section 92-A of the Motor Vehicles Act, 1939, which it has failed to take into consideration. Accordingly, the compensation amount is enhanced to Rs. 15,000/-. In view of the aforesaid no other compensation on any other account can be allowed. 16. Although it has been argued that the rate of interest should also have been 12 per cent instead of 6 per cent, but in the appeal itself the appellant has not made any grievance for enhancement of the rate of interest. Therefore, there is no question of considering that part of the argument. The interest awarded by the lower court does not require any change. 17. As regards the appeal of Vishakha Bai, undisputedly Vishakha Bai received a fracture in the head bone and other injuries. She also received injury on her leg. Although Vishakha Bai had claimed permanent disablement, but the medical evidence does not prove her permanent disablement. In view of the nature of the injury as stated by Dr. Chouhan, coupled with the age of Vishakha Bai, in my opinion, she has suffered a loss of earning for a period of atleast four months and her earning as proved by the evidence of the witnesses was about Rs. 8/- per day. As such for four months she suffered a loss of earning to the tune of Rs. 960/- on that account. As regards the compensation on account of mental agony and suffering, in view of the fact that she suffered an injury in the head with a fracture and also on the leg, which was also plastered impairing her movement and causing mental agony and pain Rs. 5,000/- has to be awarded as compensation for mental agony and suffering. The appellant is also reasonably expected to have spent atleast Rs. 500/- towards treatment and special diet. 5,000/- has to be awarded as compensation for mental agony and suffering. The appellant is also reasonably expected to have spent atleast Rs. 500/- towards treatment and special diet. Although she has not filed the bills but the nature of her injuries and the period of her ailment clearly show that this must be the minimum expenditure which she spent on her treatment. As such in all Vishakha Bai is entitled to get Rs. 6,460/- as compensation. The learned Tribunal has only allowed interest at the rate of 6 per cent per annum which has not been challenged in the appeal. However, the appellant is entitled to get interest from the date of the application till its recovery, in view of the fact that there were no laches on the part of the appellant causing delay in the disposal of the claim case. As such the appellant Vishakha Bai is held entitled to get Rs. 6,460/- as compensation and interest at the rate of 6 per cent per annum on that amount from the date of application till the recovery of the amount. 18. In view of the aforesaid both appeals filed by the appellants are allowed in part. The amounts of compensation of both the appellants are enhanced as above. The modified awards be prepared accordingly. The appellants shall also be entitled to get costs of this appeal from the respondent MPSRTC. Counsel's fee according to Schedule if certified. 19. The cross-objections filed by the respondent MPSRTC are disallowed in view of the aforesaid discussion.