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Madhya Pradesh High Court · body

1995 DIGILAW 138 (MP)

Somla v. Rampuri

1995-01-25

DEEPAK VERMA

body1995
JUDGMENT Deepak Verma, J. 1. This is an appeal under Section 110-D of the Motor Vehicles Act, 1939, against the award dated 7.11.1985 passed by Mr. V.D. Bajpai, Member, Motor Accidents Claims Tribunal, Jhabua, in Claim Case No. 20 of 1985. The appeal is for enhancement of the award which has been granted to them by the Tribunal. 2. Before the Tribunal, the appellants had claimed a sum of Rs. 3,25,000/- only and the Tribunal had awarded a sum of Rs. 18,000/- to the appellant Nos. 3 and 4 only against the non-applicants and had dismissed the remaining claim. However, in appeal the claimants have now confined their claim to Rs. 1,00,000/- only. 3. Few facts which may be material to the present appeal are narrated herein-below: One Dalia was working as a coolie in truck bearing registration No. MPM 3581 which was owned by the respondent No. 2 and was being driven at the relevant point of time by the respondent No. 1. The said truck was insured with the respondent No. 3, the Oriental Fire and General Insurance Co. Ltd. 4. The appellants have mentioned in their claim petition that the deceased Dalia was a coolie in the said truck and was getting monthly salary of Rs. 450/- p.m. On 17.4.1985, the respondent No. 1 drove the said truck in rash and negligent manner while it was coming from Dhar and was proceeding towards Rajla and on account of its excessive speed the truck turned turtle. Dalia had died on account of the said accident on the spot itself. The report was lodged at police station-house, Pera. Consequently, the claimants have claimed a sum of Rs. 3,25,000/- against the respondents but as mentioned above, have now confined their claim to Rs. 1,00,000/- only. 5. On notices being sent to the respondents, the respondent No. 1 remained absent even after service of notice on him and, therefore, was proceeded ex pane. In the present appeal also he has not put in his appearance. The respondent Nos. 3,25,000/- against the respondents but as mentioned above, have now confined their claim to Rs. 1,00,000/- only. 5. On notices being sent to the respondents, the respondent No. 1 remained absent even after service of notice on him and, therefore, was proceeded ex pane. In the present appeal also he has not put in his appearance. The respondent Nos. 2 and 3 have filed their respective written statements denying the claim of the appellants and have also denied that the said truck had turned turtle and have mentioned that the said truck met with the accident on account of mechanical defect in it and that Dalia was travelling in the said truck as a passenger and the respondent No. 1 was not holding a valid licence at the time of the accident. Consequently, the insurance company is not liable to pay any amount as it amounts to violation of terms and conditions of the policy. 6. Parties went to the trial and after giving full opportunity to them the Claims Tribunal came to the conclusion that Dalia had expired in the accident which took place on account of the rash and negligent driving of the truck by the respondent No. 1 and he was working as coolie in the truck and was earning about Rs. 150/- p.m. Looking to the age of the deceased a multiplier of 15 has been adopted in the said case, as it has been held that at the time of the accident, Dalia was aged 19 years only. The Tribunal has held that he must be spending something on himself out of Rs. 150/- and thus he must be contributing only Rs. 100/- p.m. to the claimants. Thus, a sum of Rs. 18,0007-plus interest at the rate of 6 per cent per annum has been awarded to the appellant Nos. 3 and 4 only. They are aggrieved by the same and claimed enhancement to the extent of Rs. 1,00,000/-. 7. No doubt it is true that a very meagre amount has been awarded to the claimants. The appellant No. 1 is the grandfather, appellant No. 2 is grandmother, appellant Nos. 3 and 4 are father and mother of the deceased and appellant Nos. 5 to 8 are brothers and sister of the deceased. After evaluating the evidence, the Tribunal has held that only appellant Nos. The appellant No. 1 is the grandfather, appellant No. 2 is grandmother, appellant Nos. 3 and 4 are father and mother of the deceased and appellant Nos. 5 to 8 are brothers and sister of the deceased. After evaluating the evidence, the Tribunal has held that only appellant Nos. 3 and 4, the father and the mother, alone are entitled to claim the amount of compensation and it has been held that others were not dependent on the deceased. Therefore, they are not entitled to claim any amount. 8. I have gone through the entire record and the irresistible conclusion to which I can come is that the truck in question was being driven by the respondent No. 1 in a rash and negligent manner on account of which the same had turned turtle and the deceased had died instantaneously in the said accident. It has also been proved that the respondent No. 2 is the owner and the respondent No. 3 is the insurance company of the said vehicle. 9. Learned counsel for the appellants has placed reliance on decisions reported in Manno Devi v. Dhan Singh 1988 ACJ 620 (Delhi), National Insurance Co. Ltd. v. Kastoori Devi 1988 ACJ 8 (Rajasthan) and D.S. Chadha v. Gian Singh 1992 ACJ 1063 (Delhi), for assessing the amount of compensation and working out dependency of the appellants. 10. Looking to the facts of the present case and the evidence adduced by the parties I hold that the said deceased Dalia was working as a coolie in the truck in question which had met with the accident on 17.4.1985. The said accident had taken place on account of the rash and negligent driving of the same by the respondent No. 1. The truck at the relevant point of time was being owned by the respondent No. 2 and was insured with the respondent No. 3. It is further held that at the relevant point of time the deceased was a young man of 19 years only. 11. The appellants have examined Jhokhala, AW 1, who was working as a coolie along with the deceased in the said truck and who has deposed that he was getting a salary of Rs. 450/- p.m. as also the evidence of Bhuri, AW 2, mother of the deceased who has also said that the deceased was earning Rs. 11. The appellants have examined Jhokhala, AW 1, who was working as a coolie along with the deceased in the said truck and who has deposed that he was getting a salary of Rs. 450/- p.m. as also the evidence of Bhuri, AW 2, mother of the deceased who has also said that the deceased was earning Rs. 450/- p.m. However, she has not mentioned the amount which Dalia used to give her for running the household. 12. Against this evidence the owner of the truck has been examined who has admitted that Dalia was being paid Rs. 350/- p.m. He has also proved the insurance policy as well as the driving licence of the respondent No. 1. There is no reason to disbelieve the evidence of Mohd. Nasir, the respondent No. 2 himself. Since Jhokhala, AW 1 and Bhuri, AW 2, appear to be interested witnesses, therefore, it is not proper to totally believe their evidence with regard to the salary which Dalia must be getting from the respondent No. 2. But there is no reason to disbelieve the evidence of the owner of the truck who has categorically mentioned that he used to pay Rs. 350/- p.m. to the deceased. Since there is no collusion between the owner and the claimants and for this reason also it can safely be assumed that Dalia must be earning a sum of Rs. 350/- p.m. by working as coolie of the respondent No. 2 on the said truck. Out of the said earning Dalia must be spending at least Rs. 100/- on himself and must be paying Rs. 250/- p.m. to the appellant Nos. 3 and 4. 13. Thus, the dependency is assessed at Rs. 250/- p.m. which comes to Rs. 3,000 per year. The multiplier of 15 has rightly been applied as I have also to see the age of the claimants, specially that of claimant Nos. 1 to 4. Thus, the total amount of compensation payable to the claimants comes to Rs. 45,000/-. On the said amount, the claimants shall also be entitled to claim interest at the rate of 10 per cent per annum from the date of claim petition till it is actually paid. Out of Rs. 45,000/- a sum of Rs. 10,000/- shall be paid to the appellant Nos. 1 and 2, that is, grandfather and grandmother of the deceased and the remaining amount of Rs. Out of Rs. 45,000/- a sum of Rs. 10,000/- shall be paid to the appellant Nos. 1 and 2, that is, grandfather and grandmother of the deceased and the remaining amount of Rs. 35,000/- shall be paid to the appellant Nos. 3 and 4, that is, mother and father of the deceased. However, the other claimants shall not be entitled to claim any amount out of the said sum as they were not dependent on the deceased. 14. The appellant Nos. 1 to 4 shall also be entitled to claim interest at the rate of 10 per cent per annum on the said amount from the date of claim petition till it is actually paid. Thus, the award of the Claims Tribunal is modified to the extent as mentioned above. The remaining claim petition is dismissed. 15. The appeal is partly allowed. The amount of Rs. 45,000/- plus interest at the rate of 10 per cent per annum from the date of the application till it is actually paid shall be payable by the respondents jointly and severally. Counsel's fee Rs. 500/-, if certified.