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1999 DIGILAW 945 (MP)

NEW INDIA ASSURANCE CO, LTD. v. SHAMBHU NATH GUPTA

1999-11-24

D.M.DHARMADHIKARI, USHA SHUKLA

body1999
USHASHUKLA, J. ( 1 ) ON 15. 5. 1990, Shambhu nath Gupta, respondent No. 1, was going from Bhopal to Indore by the m. P. S. R. T. C. bus. His wife Neelam Gupta and their two children, respondent Nos. 2 and 3, namely, Pooja Gupta and Pulkit gupta, were also travelling with him in the same bus. This vehicle collided head-on with mini truck near village Bedakhedi. As a result Neelam Gupta died on the spot while Shambhu Nath Gupta and his children sustained numerous injuries including compound fractures. This gave rise to four different claim cases. Claim Case No. 73 of 1990 was filed by the husband and children of Neelam Gupta claiming compensation of Rs. 2,50,000 on account of her death. Shambhu Nath Gupta claimed in Claim Case No. 74 of 1990 Rs. 5,00,000 as compensation for the injuries sustained by him resulting in permanent disability in his limbs. For Pooja Gupta and Pulkit gupta, Claim Case Nos. 75 and 76 of 1990 were filed, each for a compensation of rs. 1,00,000 on account of injuries sustained by them in this accident. The claim was made against the owners and drivers of both the vehicles and the New India assurance Co. Ltd. , the insurer of mini truck. ( 2 ) ALL these four cases were decided by the Tribunal by a common award dated 9. 9. 1993, holding that the accident was as a result of rash and negligent driving of both the vehicles, the Tribunal apportioned the liability equally between the two sets of non-applicants and directed the m. P. S. R. T. C. and the New India Assurance co. Ltd. to pay the amount with interest. In Claim Case No. 73 of 1990 the total compensation awarded for the death of neelam Gupta was Rs. 70,000. Shambhu nath Gupta, Pooja Gupta and Pulkit Gupta were awarded Rs. 35,000, Rs. 20,000 and rs. 7,500 each in their respective cases. ( 3 ) THE New India Assurance Co. Ltd. felt aggrieved by this award and filed this appeal challenging the finding of composite negligence recorded by the Tribunal. Shambhu Nath Gupta and the two children then filed a cross-objection for enhancement of compensation for the death of neelam Gupta. The appeal was contested by the claimants alone. ( 3 ) THE New India Assurance Co. Ltd. felt aggrieved by this award and filed this appeal challenging the finding of composite negligence recorded by the Tribunal. Shambhu Nath Gupta and the two children then filed a cross-objection for enhancement of compensation for the death of neelam Gupta. The appeal was contested by the claimants alone. ( 4 ) IT was contended on behalf of the appellant that the driver of the mini truck was not at all responsible for the accident and the bus had dashed against the stationary mini truck. The Tribunal itself had earlier recorded such a finding on 29. 7. 93 in another case arising out of the same accident, being Claim Case No. 79 of 1990. A contrary finding recorded in the instant case was contrary to law. It was also urged that in another Case No. 78 of 1990 arising out of the same accident, the M. P. S. R. T. C. had itself admitted rash and negligent driving of its driver, which fact was overlooked by the Tribunal. Yet, another ground urged was that the driver of the mini truck did not possess a proper driving licence and was licensed to drive only a light motor vehicle and autorickshaw and, therefore, the insurance company was absolved from liability. ( 5 ) LEARNED counsel for the claimants argued that the finding of composite negligence was based on unrebutted evidence adduced before the Tribunal. The findings recorded in Claim Case No. 79 of 1990 and claim Case No. 78 of 1990 were in no way binding on the Tribunal while deciding the instant case. Regarding the cross-objection, it was urged that the deceased neelam Gupta was a young woman aged 32 years. She had done her postgraduation in Political Science. Her untimely tragic death in this accident had deprived her two children aged 6 and 7 years the care and affection of a mother and had caused irreparable loss to the husband. The compensation awarded by the Tribunal for her death was disproportionately low and should be enhanced to Rs. 2,50,000 as claimed. ( 6 ) WE have carefully gone through the evidence on record and have considered the arguments advanced by both sides. The compensation awarded by the Tribunal for her death was disproportionately low and should be enhanced to Rs. 2,50,000 as claimed. ( 6 ) WE have carefully gone through the evidence on record and have considered the arguments advanced by both sides. We find that the only evidence about tne accident was the statement of Shambhu Nath gupta, AW 2, who deposed that there was a head-on collision between the two vehicles which were both being driven with excessive speed. The suggestion that the mini truck was stationary was stoutly denied by him. No attempt was made by the other side to adduce evidence in rebuttal and there was no reason to disbelieve shambhu Nath Gupta, AW 2. The conclusion of the Tribunal regarding rashness and negligence cannot, therefore, be interfered with. ( 7 ) THE Tribunal had also dealt with the objection based on the earlier Claim Case nos. 78 and 79 of 1990. It was rightly held that each case had to be decided on the evidence adduced therein. There was no question of applying the principle of res judicata with respect to the claims of other parties, although arising out of the same accident. The objection based on the findings recorded in Claim Case Nos. 78 and 79 of 1990 have, therefore, no force. ( 8 ) WE also find that no evidence was adduced about the validity of the driving licence of the driver of mini truck. The insurance company examined Assistant administrative Officer Mohite, but it is incorrect to say that he spoke about the driver having a licence for driving light motor vehicle only. The fact is that he did not speak a word about the licence, but only deposed that the insurance company had got a survey done through a private surveyor, and that this surveyor had submitted his report Exh. D-5. It is significant to note that the surveyor himself was not examined before the Tribunal. Nor was any attempt made to get the driving licence produced. We also find that there is no evidence to show that the mini truck in question was a 'light motor vehicle' as defined in section 2 (21) of the Motor vehicles Act, 1988. ( 9 ) THE result is that we do not find any force in any of the objections raised by the insurance company. We also find that there is no evidence to show that the mini truck in question was a 'light motor vehicle' as defined in section 2 (21) of the Motor vehicles Act, 1988. ( 9 ) THE result is that we do not find any force in any of the objections raised by the insurance company. The appeal filed by the insurance company must, therefore, be dismissed. ( 10 ) BUT the same cannot be said about the cross-objection. Neelam Gupta was a young, educated, accomplished woman of 32. She left behind her husband and two small children aged 6 and 7. Her husband deposed that she was earning Rs. 1,000 per month from tuition, but the Tribunal found this evidence to be insufficient. But even if she was not earning, her services to the family cannot be undermined. Keeping a house and rearing children cannot be assessed in terms of money. Nor does the love and affection of a wife and mother have any value. The loss is irreparable. And Shambhu Nath Gupta must be believed when he says that he had to engage a servant to look after his children. He must have incurred additional expenses towards keeping the house after the death of his wife. ( 11 ) LOOKING to all these facts and keeping in mind the age of the deceased and that of the claimants and their status, this court finds the compensation of Rs. 70,000 wholly inadequate. It may be noticed that second Schedule to section 163-A of the motor Vehicles Act, 1988 assumes the notional income of a non-earning member to be Rs. 15,000 per annum for which the appropriate multiplier between 30 and 35 years of age is 17. The compensation thus calculated comes to Rs. 15,000 x 17 = rs. 2,55,000. Making a deduction of one-third, the amount comes to Rs. 1,70,000. To this may be added a suitable sum towards funeral expenses and loss of consortium as well as loss of love and affection for two children. Calculated thus, the proper compensation would come to rs. 2,00,000. ( 12 ) THE result is that the appeal of the insurance company is dismissed but the cross-objection is allowed. The compensation awarded for the death of Neelam gupta is enhanced to Rs. 2,00,000 (two lakh ). Calculated thus, the proper compensation would come to rs. 2,00,000. ( 12 ) THE result is that the appeal of the insurance company is dismissed but the cross-objection is allowed. The compensation awarded for the death of Neelam gupta is enhanced to Rs. 2,00,000 (two lakh ). The amount would be paid in equal proportion by the M. P. State Road Trans-port Corporation and New India Assurance co. Ltd. with interest at the rate of 12 per cent per annum for five years. Appeal dismissed; cross-objection allowed. .