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2003 DIGILAW 1035 (PAT)

Rani Devi @ Sangita Devi v. Rani Devi @ Sangita Devi

2003-09-19

body2003
ORDER This appeal has been preferred against the judgment and award passed by the 1st Additional District Judge-cum-MACT, Muzaffarpur, in Claim Case No. 166 of 1996. Two claim Cases were commonly heard one being Claim case no. 166 of 1996 and the other being Claim Case No. 165 of 1996 and common judgment had been delivered, as they arise out of the same accident. 2. The claimants-appellants have challenged the judgment and award on the ground of insufficiency of the awarded amount and also regarding the liability of the owner and not on the Insurance Company. The claimants are the wife, mother and children of the deceased Chanchal Singh who was aged about 30 years and met with an accident on 27.11.1996 when the bus bearing registration no. BR-06/8691 met with a head on collusion with a tanker bearing registration no. HR-47/1418 at Kodarkatta Dhala under Motipur Pollice Station. As a result of the accident, both the conductor and the Khalasi i.e. Chanchal Singh the deceased in the present case met with severe injuries. The conductor died at the spot and Chanchal Singh died on the same day during the course of treatment because of the injuries sustained. The claim case, as mentioned, was submitted wherein for no fault of liability to a tune of Rs. 50,000/- was ordered to be paid by the respondent M/s Oriental Insurance Company. It should be mentioned here that both the vehicles were insured with Oriental Insurance Company has been stated above. The claim case was contested by the Insurance Company alone. There is unchallenged evidence to the effect that the deceased was earning Rs. 1,500/- as Khalasi but still then the same has been lessened by the trial Court holding that as Khalasi he must have earned for 24 days only in a month as a labour on payment of Rs. 35/- per day. Even from the labour manual it has been submitted from the side of the learned counsel for the appellant that at that time the rate of approved labour charge was far more than Rs. 35/-. Moreover it appears that the age of the victim as is found from the post mortem report and that from the evidence adduced was 30 years but a multiplier of 15 had been used although as per schedule it ought to have been 18. 35/-. Moreover it appears that the age of the victim as is found from the post mortem report and that from the evidence adduced was 30 years but a multiplier of 15 had been used although as per schedule it ought to have been 18. Further submission of the learned counsel for the appellant is that the learned Tribunal unnecessarily asked the part of the amount of award to be paid by the owner and the driver although the admitted position remains is that both the vehicles were insured with the Oriental Insurance Company. 3. It is the submission of Mr. Priyadarshi, learned counsel for the respondent-Insurance Company that the appeal is not maintainable as quantum cannot be challenged. In that way, when once liability has been fastened with the owners of one vehicle then there is no necessity or there is no scope to bind that Oriental Insurance Company more, again when already this part has been performed as part payment. On going through the materials and also impugned judgment I could find that the learned Tribunal had definitely committed error. The undisputed position remains that there was evidence to the effect that the deceased was getting Rs. 1,200/- per month as a khalasi then there is no scope to disbelieve the same and regarding the age also it appears that 30 years could be found from the records itself being verified from post mortem report then the multiplier should be 18. Considering that aspect of the matter the dependency comes to Rs. 1,000/- per month by 1/3rd and odd deviated towards the personal expenses of the khalasi and if the multiplier of 18 is used then compensation comes to Rs. 1,18,000/-. But the quantum of compensation should be of such nature that it must be commensurate with the dependency. If the amount is being deposited in F.D.R. in any nationalised bank at the time of accident, the F.D.R. interest was to the tune of 9% or 10% at the relevant time. In that way, I feel that Rs. 1,70,000/- would be the proper assessment for compensation which I do accordingly by modifying the amount of compensation awarded from Rs. 1,35,000/- to Rs. 1,70,000/-. In that way, I feel that Rs. 1,70,000/- would be the proper assessment for compensation which I do accordingly by modifying the amount of compensation awarded from Rs. 1,35,000/- to Rs. 1,70,000/-. Moreover, on the face of it when there was contributory negligence to both the vehicles and both vehicles are insured with the M/s Oriental Insurance Company then there was no ground as to why the owner and the driver would be fastened with the liability to make payment with the third party's risk had not been denied. The contention that when owner and driver had not come up for appeal, that matter cannot be considered in this appeal of claimant. I cannot convince myself with such submission. 4. In that view of the matter, this appeal is partly allowed to the extent that the amount of compensation is raised from Rs. 1,35,000/- to Rs. 1,70,000/- and the whole of the amount is asked to be paid by the Oriental Insurance Company and not by the owner and the driver of the other vehicle. The interest etc. as has already been imposed shall remain intact. No order as to costs.